Filed 8/17/06
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S014394
v.
FERMIN RODRIGUEZ LEDESMA,
Santa Clara County
Defendant and Appellant. )
Super.
Ct.
No.
72102
After a retrial following reversal of defendant’s conviction and death
sentence, defendant was convicted of first degree murder, kidnapping, and two
counts of robbery, and true findings were returned on allegations that he
personally used a firearm in the commission of these offenses. (Pen. Code,
§§ 187, 207, 211, 12023.5, 1203.6.) 1 Two special circumstances were found
true — the intentional killing of a witness, and murder in the commission of a
robbery. (Former §190.2, subd. (c)(2), (3)(i) & (ii).)2 After the penalty phase of
the trial, the jury returned a verdict of death and the trial court denied defendant’s
motion to modify the death verdict. (§ 190.4, subd. (e).) This appeal is automatic.
(§ 1239, subd. (b).) We reverse one of the robbery counts and the robbery special
1
Unless otherwise indicated, all further statutory references are to the Penal
Code.
2
Because defendant’s offenses took place in August and September of 1978,
his case is governed by the death penalty law that was adopted by the Legislature
in 1977. (Stats. 1977, ch. 316.) That law subsequently was replaced by an
initiative measure approved by the voters on November 7, 1978.
1
circumstance, but in all other respects affirm defendant’s conviction and death
sentence.
I. FACTS
The trial, which took place in 1989, was defendant’s second trial for
offenses arising out of the robbery and murder of Gabriel Flores in 1978.
Defendant first was convicted of these crimes and sentenced to death in 1980. In
addition to his automatic appeal in that matter, defendant filed a habeas corpus
petition in this court alleging that his trial attorney had provided constitutionally
ineffective assistance. We appointed a referee to take evidence and make findings
of fact and conclusions of law regarding that claim. The referee concluded, and
this court agreed, that trial counsel had provided defendant with inadequate legal
assistance on the basis of numerous inadequacies in his representation, including
counsel’s failure to conduct adequate investigation and research, in particular with
regard to the defense of diminished capacity. (People v. Ledesma (1987) 43
Cal.3d 171, 223, 224 (hereafter Ledesma I.) Accordingly, we vacated the
judgment and remanded defendant’s case to the superior court.
At the retrial, the prosecution presented evidence that on August 26, 1978,
Mr. Flores was working at a Hudson gas station in the City of San Jose. That
afternoon, he called his manager at home and reported that he had just been
robbed and had obtained the license number of the motorcycle used by the
robbers. Police officers went to the gas station and interviewed Mr. Flores. He
described the robbers as two Mexican males, and explained that one of them
stayed on the motorcycle and the other brandished a white gun and asked for his
money. One of the robbers took some cash and went through some drawers, and
the two men then left. About $30 was missing from the gas station. Mr. Flores
provided the police officers with the license plate number of the motorcycle.
2
Police officers received a radio broadcast indicating that the motorcycle
was registered to defendant, and they promptly went to the address listed on the
motorcycle registration. They were told that defendant no longer lived there, and
were directed to his current residence. When the officers arrived at defendant’s
apartment, he was not at home. Two visitors let them in, one of whom was Millie
Dominguez. While they were there, the telephone rang and a police officer
answered it, speaking in Spanish and identifying herself as Millie Dominguez.
The caller identified himself as Fermin Ledesma and said that he was “hot,” that
the police were looking for him, and that she should lock the apartment and the
doors of his car and take a walk. The police were unsuccessful in locating
defendant at that time.
Three days after the robbery, the police showed Mr. Flores a six-image
photographic lineup. He identified a picture of defendant as looking like the
person who held the gun during the robbery. The police then obtained a warrant
for defendant’s arrest. On September 1, 1978, police officers proceeded to
defendant’s apartment. They did not find him there, but defendant’s friend Jesse
Perez was in the apartment. Because Jesse resembled the description of the
second robber, the police took him into custody for questioning. During the
interview, Jesse was told that a warrant had been issued for defendant’s arrest, that
Jesse was also a suspect, and that a photographic lineup with Jesse’s picture would
be shown to the victim. He was released after the interview.
A few days later, on September 5, 1978, Mr. Flores disappeared. At
approximately 3:00 that afternoon he had started work at the same gas station that
had been robbed about one week earlier. Later that evening, the police found the
gas station open but with no attendant on the premises. Three days later, on
September 8, 1978, Mr. Flores’s body was found in a ravine in the City of Gilroy.
There were four gunshot wounds to his body from .22-caliber bullets, and two stab
3
wounds to the chest. Mr. Flores had been wearing light tan boots when he arrived
at work on the day he disappeared, but when his body was found it lacked any
footwear. He had no paper money in his pockets, only a small number of coins.
According to the gas station manager, Mr. Flores normally carried about $30 in
cash when he was working, so that he could make change for customers. Three
or four days after Mr. Flores disappeared, the manager noticed that a tapestry that
had been hanging in the gas station was missing.
Defendant was not immediately arrested because, shortly after the killing,
he moved to Salt Lake City, Utah. In March of 1979, a deputy sheriff who was
attempting to locate defendant in San Jose pulled over a car in which defendant
was a passenger. When the deputy asked defendant his name, he replied “you
have the right guy,” and he was arrested for the robbery and murder of Mr. Flores.
No physical evidence connected defendant to the gas station robbery or the
murder, but a number of witnesses testified that defendant had admitted
committing the crimes. At trial, Santiago Ontiveros, a friend of defendant’s,
denied remembering anything defendant told him about the robbery, but in a taped
interview he had told the police that defendant had said he committed the robbery
with Jesse Perez. Sylvia Lopez Ontiveros, who had been married to Santiago
Ontiveros, also denied at trial remembering that defendant had said anything to her
about the crimes. Her contrary preliminary hearing testimony was read into the
record. She testified at the preliminary hearing that during a telephone call,
defendant told her he had killed a person who had identified him in a robbery.
According to that testimony, defendant told her that if he eliminated the witness,
there would be no one to testify against him. When he went to the gas station, the
victim did not recognize him, but was killed anyway. Defendant told Sylvia
Ontiveros that he was going to leave town and change his identity. A statement
4
made by Sylvia Ontiveros to the police was consistent with her preliminary
hearing testimony.
Jona Cardona, who had been Jesse Perez’s girlfriend at the time of the
crimes, testified that she overheard a conversation in which defendant said that he
and Jesse had robbed a gas station and that the person they robbed had identified
defendant from a photograph and knew his motorcycle license number. According
to Cardona, defendant said he was going to obtain revenge on the man who
worked at the gas station. Later, after she learned the man had been killed, she
overheard another conversation in which defendant and George Perez discussed
how the man had died: Defendant and three others ― George, Jesse, and someone
known as “Crazy Joe” ― went to the gas station and asked the man to put some
oil in the back of their truck. They pushed him into the truck, drove him into the
mountains, and shot and stabbed him. In another conversation recounted by
Cardona, the other individuals teased Jesse because he would not stab the man and
because he stole the man’s boots. After defendant had been arrested, Cardona
made an anonymous telephone call to the police to report what she had heard,
because she believed that defendant was receiving all the blame even though
others were involved. A tape recording of that telephone call was played at the
trial.
Cardona’s sister, Shirley Chavez, testified that she had overheard a
conversation between defendant, George Perez, and “Crazy Joe.” According to
Chavez, in this conversation defendant did most of the talking. He said that he
and Jesse had robbed a gas station. Later defendant, Jesse, George, and Joe went
back and kidnapped the victim because he had selected defendant’s picture from a
lineup. Defendant shot him. He asked the others to stab the victim so that he
would not be the only person involved. They dumped the body in an orchard.
Jesse kept the victim’s boots.
5
As noted above, shortly after the murder, defendant moved to Salt Lake
City. Two men who met defendant while he was in Utah testified that defendant
had admitted committing a robbery and murder. Michael Shay testified that in
1979 defendant told him he was wanted for a gas station robbery and a murder in
California. Defendant told Shay he had warned the victim not to “narc” on him.
He returned to the gas station, asked the attendant to put a case of oil into his
vehicle, and then shoved him into the vehicle. According to Shay, defendant said
he drove the victim to the mountains and shot him in the head and chest.
Similarly, Floyd Cowdell testified that defendant told him he had committed a
robbery at a gas station and had gone back to kill the witness, and that he was
wanted for murder. Defendant said he kidnapped the attendant, took him into the
hills, and shot and stabbed him.
The defense contested the prosecution’s case in numerous respects. It
challenged on a variety of grounds the credibility of each prosecution witness who
testified concerning defendant’s admissions, including the witnesses’ drug use at
the time of the crimes, bad character, motives to lie and to curry favor with the
police, and prior inconsistent statements. The defense also offered evidence that
the murder may have been committed by one Joe Guerra, the “Crazy Joe”
mentioned in some of the witnesses’ testimony as a participant in the crimes. Jona
Cardona identified a picture of Guerra as looking like the person she had referred
to as “Crazy Joe.” The police had interviewed Guerra in connection with the
present case. In that interview, Guerra denied involvement in this offense but
admitted setting up hits for the Mexican Mafia. His former girlfriend testified that
he once asked her what she would think if he told her he had killed the person at
the Hudson gas station in 1978, but she told him she did not want to hear about it.
The defense, in support of two alternative theories, presented lay and expert
testimony regarding defendant’s personality and mental condition. The first
6
theory was that, to the extent defendant may have made statements admitting these
crimes, he either was telling lies to make himself seem more important to his
peers, or, because of his extensive drug use, he did not really remember whether
he had committed the crimes and was using information he received from other
persons to fill the gaps in his memory. Second, defendant claimed diminished
capacity. Defense experts opined that defendant was incapable of premeditating
or forming the intent to kill at the time the crimes occurred, because of his
extensive phencyclidine (PCP) use combined with his low intelligence and the
effects of brain damage caused by beatings he received as a child and exposure to
toxic chemicals.
In support of these mental defect defenses, several witnesses testified
concerning defendant’s heavy use of PCP in 1978. Witnesses also testified that he
was more of a follower than a leader and that he had a propensity to exaggerate or
tell lies to make himself seem more successful and important to his peers.
Prosecution witness Floyd Cowdell testified that when defendant told him about
the crimes, he appeared to be trying to act “macho.” When defendant was a child,
he was frequently beaten by his father and his older brother. He was teased as a
child because he was slower than other children and had buck teeth and a large
cyst over his eye.
An expert on drug addiction, H. Westley Clark, testified for the defense that
PCP alters perceptions and can cause psychosis, delusions, and hallucinations. As
Dr. Clark explained, a person under the influence of PCP could appear to function
normally but have a memory gap, which is similar to what occurs in an alcohol
blackout. Persons who have memory gaps tend to deduce what happened or fill
the gap with information suggested by another person, and come to believe that
they actually remember the prior event. Dr. Clark opined that the memory of a
chronic PCP user generally would be unreliable and that a person under the
7
influence of PCP could not deliberate, although he or she might be able to form
the intent to kill.
A psychologist, Dr. Anne Evans, testified concerning the results of
psychological tests she performed on defendant. His intelligence quotient was in
the low average range, but he scored much lower on the verbal test than on other
aspects of the tests. The tests she administered suggested the possibility of brain
damage. When defendant was young, he was teased by his peers because of the
cyst over his eye and his buck teeth, and because he was skinny and slow.
According to Dr. Evans, defendant attempted to compensate for his feelings of
inadequacy by bragging. Dr. Evans asserted that if defendant claimed he was
involved with the killing, it is possible he could have convinced himself that was
true after hearing other individuals say this was so, or that he was trying to build
himself up. Defendant told her he thought he knew who had committed the crime
but could not tell her who it was. He also said he could not remember but believed
he was not responsible, while acknowledging it seemed possible that he was. Dr.
Evans opined that, in 1978, defendant could not have premeditated, and lacked the
capacity to deliberately intend to kill or to form malice ― both because of his
mental defects and because PCP interferes with impulse control and with the
ability to deliberate and think clearly, sometimes to the point of causing psychosis.
Dr. Eric Morgenthaler, a licensed clinical psychologist who performed
neuropsychological tests on defendant, found him to be fine in some areas but
impaired in others. According to Dr. Morganthaler, defendant is able to function
in the world but is slow in processing information and responding to it. His
pattern of neurological defects suggests organic brain damage. Dr. Morgenthaler
explained that defendant’s history of head traumas, his chronic drug use, and his
exposure to toxic chemicals were possible sources of brain damage and that
persons with brain damage are generally more susceptible to the effects of drugs.
8
Dr. Fred Rosenthal, a psychiatrist, testified that defendant appeared to have
brain damage that produced lapses of judgment and an inability to think creatively
and deal with complex material. According to Dr. Rosenthal, defendant had low
self-esteem because of his chaotic childhood and the beatings he suffered during
that period. Dr. Rosenthal explained that defendant resorted to drugs for relief
from both psychic and physical pain and that defendant’s need to feel powerful
and overcome feelings of worthlessness could lead him to exaggerate matters,
such as admitting a killing he did not commit. According to Dr. Rosenthal, even
telling a doctor that he committed a murder could be a way of establishing power
in the relationship, and a person who was intoxicated with PCP would lack the
ability to deliberate or think clearly, or to form the mental states of express or
implied malice. Finally, Dr. Rosenthal stated that a person with brain damage
tends to be more sensitive to further injury and to drugs.
Dr. Michael Radelet, a sociologist, testified concerning a study he had
conducted of persons who had been convicted of murder but who were in fact
innocent of that charge. Dr. Radelet found that false confessions sometimes occur
when the person does not actually remember the crime but confesses, believing
himself responsible, and when the person knows he did not commit the crime but
is boasting. Dr. Radelet stressed that drug use and a history of making false
statements reduce the probability that a confession is true.
On rebuttal, the prosecution presented the testimony of Dr. John Glathe, a
psychiatrist who had been appointed by the court to examine defendant and advise
defense counsel before defendant’s first trial. Dr. Glathe testified that defendant
told him he had committed the robbery at the gas station and that one week later
he went back and kidnapped the victim, killing him by shooting and stabbing him.
The prosecution also presented testimony from a psychologist, Dr. Lee
Coleman, who challenged the reliability of the defense experts and disputed their
9
conclusions. Dr. Coleman opined that the various psychological tests and
assessment tools employed by the defense experts were unreliable or irrelevant to
the issues and that none of them were useful in determining, after the fact, the
nature of a defendant’s state of mind at an earlier time. In Dr. Coleman’s opinion,
although the use of drugs could incapacitate a person to the extent that he or she
could not form the intent to commit a crime, a person so impaired by drugs would
lose the ability to act before losing the ability to form the intent to act. In Dr.
Coleman’s view, the most reliable indicator of a person’s intent is “what they do,
how they do it, and the context in which they do it,” and laypersons are just as
successful, if not more so, as mental health professionals in determining a person’s
intent. Dr. Coleman asserted that the presence of organic brain disorder reveals
nothing about a person’s intent; in Dr. Coleman’s view, if the brain disorder
interferes with intent, that same disorder also would be reflected in the person’s
behavior. Furthermore, in Dr. Coleman’s opinion, none of the evidence presented
by the defense experts supported the conclusion that defendant had organic brain
damage.
The jury found defendant guilty on all charges and found true the various
allegations, including the special circumstances. At the penalty phase, the
prosecution presented evidence that when defendant was in Utah during February
1979, he committed two armed robberies of gas stations and an attempted robbery
of a market. During the attempted robbery, defendant fled from the store when the
owner produced a shotgun. Floyd Cowdell testified that defendant told him that
the store owner took a shot at him and he shot back.
In mitigation, defense counsel presented testimony concerning defendant’s
history and background that supplemented the information presented during the
guilt phase, relating to the abuse suffered by defendant as a child. Mr. Shiraldi, a
social worker, conducted a background investigation of defendant’s social history
10
and described how defendant was beaten as a child and teased because of his
appearance and mental slowness. Shiraldi reiterated that, as a result, defendant
suffered from low self-esteem and turned to drugs at an early age. When
defendant married and began residing with his wife, he was doing relatively well,
working hard and relying less on drugs and alcohol. He discovered, however, that
his wife was being unfaithful to him. The social worker explained that after
defendant and his wife separated, he resided with an aunt and an uncle in
Coalinga, where he worked regularly, helped around the house, and contributed
financially to the household. Still, the social worker testified, defendant was very
depressed about having separated from his wife and his children, eventually
returning to San Jose in the hope of reuniting with them. When this effort was
unsuccessful, his drug use increased.
Several witnesses testified that during the time defendant was incarcerated,
he became more religious, accepted responsibility, and felt remorse for his crimes.
Defendant expressed remorse to Dr. Rosenthal and said he was disturbed by the
realization that defendant was involved in someone having been killed. Dr.
Rosenthal was aware defendant had wanted to plead guilty. A jury consultant who
worked for the defense testified that defendant consistently desired to plead guilty
and receive a life sentence.
Defendant’s cousin corresponded with defendant while defendant was in
prison, instructing him on the Bible. She testified that defendant wanted to make
peace with God and be forgiven for his sins. The chaplain at the county jail
testified that defendant took communion, had expressed remorse for his past
lifestyle, had great concern for his daughters, and hoped he still could do
something productive with his life. Father Wood, a Jesuit priest who had
discussed defendant with the jail chaplain and had met defendant once, testified
that defendant admitted committing a crime and said he was sorry. Father Wood
11
thought defendant felt remorse and wished to be allowed to live so that he would
have the opportunity to repent. A psychologist who worked in the prison system
testified that, if given a life sentence, defendant would have a chance to do useful
work, improve his education, and participate in a religious program.
II. GUILT PHASE ISSUES
A. Grand Jury Indictment
Defendant contends that under the Fifth, Eighth, and Fourteenth
Amendments to the federal Constitution he could not be lawfully prosecuted for a
capital offense or sentenced to death in the absence of a grand jury indictment. To
the contrary, California’s practice of charging by information after a preliminary
hearing does not violate the federal Constitution. (Rose v. Mitchell (1979) 443
U.S. 545, 577, fn. 7; Hurtado v. California (1884) 110 U.S. 516, 538; In re Terry
(1971) 4 Cal.3d 911, 926.) Grand jury oversight of the prosecutor’s decision to
seek the death penalty is not compelled by the Eighth Amendment.
“[P]rosecutorial discretion to select those eligible cases in which the death penalty
will actually be sought does not in and of itself evidence an arbitrary and
capricious capital punishment system or offend principles of equal protection, due
process, or cruel and/or unusual punishment.” (People v. Keenan (1988) 46
Cal.3d 478, 505.) No authority supports defendant’s contention.
B. Jury Selection
1. Number of peremptory challenges
Defendant argues that the trial court erred in limiting him to 20 peremptory
challenges. At the time of his first trial, section 1070 permitted each side in a
capital case to exercise 26 peremptory challenges. Section 1070 was repealed
effective January 1, 1989. (Stats. 1988, ch. 1245, § 30, p. 4155.) The same
enactment added Code of Civil Procedure, section 231, subdivision (a), which
provides only 20 peremptory challenges to each side in a capital case. (Stats.
12
1988, ch. 1245, § 2, p. 4152.) Defendant argues that former section 1070
governed his case because (1) he was entitled to have his second trial conducted
under procedures no less beneficial to him than the first trial, and (2) pretrial
proceedings — including motions and discovery — began in his retrial before the
effective date of Code of Civil Procedure section 231.
A new or amended statute applies prospectively only, unless the Legislature
clearly expresses an intent that it operate retroactively. (Tapia v. Superior Court
(1991) 53 Cal.3d 282, 287.) “[A] law governing the conduct of trials is being
applied ‘prospectively’ when it is applied to a trial occurring after the law’s
effective date, regardless of when the underlying crime was committed.” (Id. at
p. 289.) Application of a change in law that occurred after the crime took place is
retroactive only if it changes the legal consequences of a defendant’s past conduct.
(Id. at p. 298.) In Tapia, this court held that changes in the procedures for
conducting voir dire that were made by Proposition 115 could be applied to the
defendant’s case even though the crime with which he was charged took place
before the effective date of the changes. (Id. at p. 299.) Likewise, application in
defendant’s trial of Code of Civil Procedure section 231, subdivision (a)’s changes
to the procedures for voir dire did not constitute a retroactive application of that
statute.
We reject defendant’s argument that application of Code of Civil Procedure
section 231 to his case is retroactive because the pretrial portions of his trial began
before that statute went into effect. The operative date for determining
prospective application of a statute is the “date of the conduct regulated by the
statute.” (Tapia, supra, 53 Cal.3d at p. 291; see People v. Hayes (1989) 49 Cal.3d
1260, 1274 [holding that a new statute specifying conditions under which the
testimony of a witness who has undergone hypnosis may be admitted could not be
applied in a retrial after the effective date of the statute when the witness had been
13
interviewed under hypnosis before the effective date of the statute].) Code of
Civil Procedure section 231, subdivision (a) governs the conduct of the jury
selection portion of the trial. Therefore, application of the statute that was in
effect at the time defendant’s jury was selected is a proper, prospective application
of the statute.
Defendant also argues that he should have been tried under the procedures
applicable at his first trial, because he was entitled to be placed in no less
advantageous a position had he not been denied his constitutional right to effective
representation at his first trial. In other words, he contends that the reduction in
the number of peremptory challenges available to him constituted a form of
prejudice caused by his first attorney’s ineffective assistance. Defendant’s
contention that the application of Code of Civil Procedure section 231 to his case
can be attributed to his counsel’s ineffectiveness is questionable, but even if he
were correct, he has failed to establish that he was prejudiced. If former section
1070 had been applied at trial, the prosecution would have been entitled to the
same number of peremptory challenges as the defense. There is no basis in this
record upon which to conclude that it would have been to defendant’s advantage
had both sides been given additional challenges.
Defendant argues that even if he was not statutorily entitled to 26
peremptory changes, the trial court abused its discretion in denying him those
additional challenges. Defendant contends that the court erroneously believed it
lacked the power to grant additional challenges and therefore failed to exercise its
discretion. In denying defendant’s request for 26 peremptory challenges, the court
cited People v. Whitmore (1967) 251 Cal.App.2d 359 and People v. Carter (1961)
56 Cal.2d 549, two cases that appear to support the proposition that the trial court
may not grant more peremptory challenges than are permitted by statute. (But see
People v. Bittaker (1989) 48 Cal.3d 1046, 1088 [when a defendant claims the
14
court erroneously denied a challenge for cause and expresses dissatisfaction with
the jury, granting an additional peremptory challenge may be an appropriate
remedy].) Even if we assume the trial court was mistaken about the scope of its
authority, we find no abuse of discretion here, because defendant has not provided
any justification ― either to this court or to the trial court ― for the trial court to
have exercised its discretion to grant defendant 26, rather than 20, peremptory
challenges. Furthermore, to support a claim that he is constitutionally entitled to
more peremptory challenges than are provided by statute, a defendant must
establish “at the very least that in the absence of such additional challenges he is
reasonably likely to receive an unfair trial before a partial jury.” (People v. Bonin
(1988) 46 Cal.3d 659, 679.) Defendant has not made such a showing.
2. Death penalty voir dire
Defendant makes a number of challenges to the adequacy of the procedures
employed during the voir dire of jurors concerning their views regarding the death
penalty. Prospective jurors initially filled out a lengthy questionnaire addressed
solely to their views concerning the death penalty. Each was then questioned
individually concerning his or her ability to make a penalty decision, in
accordance with then applicable procedures established in Hovey v. Superior
Court (1980) 28 Cal.3d 1. Those jurors who were not excused during the Hovey
voir dire then completed a second questionnaire, which addressed their general
qualifications, and participated in the general voir dire. In a few instances,
discussion of some jurors’ views regarding the death penalty also took place
during the general voir dire. Defendant contends that the jury selection process
was arbitrary and unfair, in violation of the Sixth, Eighth, and Fourteenth
Amendments to the federal Constitution and article I, sections 7, and 15 of the
California Constitution, in numerous respects. As explained below, we find no
error.
15
The trial court’s denial of defense counsel’s request to provide the jurors
with a single, consolidated questionnaire on both death penalty and general issues
did not deprive counsel of the use of general information critical to an adequate
Hovey voir dire. Those jurors who were not disqualified during the Hovey voir
dire were required to complete the subsequent general questionnaire. As in People
v. Clark (1990) 50 Cal.3d 583, 596-597, “[d]efendant was not precluded from
attempting to show in the subsequent general voir dire that a juror harbored any
specific bias that would cause him to vote for the death penalty without regard to
mitigating evidence, and thus should be excused for cause.” (See also People v.
Medina (1995) 11 Cal.4th 694, 746.)
Defendant’s contention that the Hovey voir dire was inadequate because the
trial court conducted it without a full understanding of the applicable death penalty
law is without merit. As noted above, these proceedings were governed by the
version of the death penalty law that was adopted by the Legislature in 1977,
rather than the version of the law adopted by initiative in November of 1978,
shortly after the charged offenses were committed. Defendant contends the trial
court was under the mistaken impression that jurors would be instructed to
“weigh” aggravating and mitigating factors (as required by the 1978 death penalty
law) in addition to being instructed to “consider, take into account, and be guided
by” the factors (as required by both the 1977 and 1978 laws). (See § 190.3;
former § 190.3, added by Stats. 1977, ch. 316, § 11, pp. 1258-1260.) Under both
laws, the jury must consider the aggravating and mitigating factors and has the
“responsibility to decide what penalty is appropriate under all the relevant
circumstances.” (People v. Brown (1985) 40 Cal.3d 512, 544.) The weighing
requirement simply makes clear that jurors are to limit their consideration to the
factors listed in the statute. (Id.; People v. Boyd (1985) 38 Cal.3d 762, 773.) It is
inconceivable that the difference between the two laws could have made a
16
significant difference in any juror’s ability to follow the law and impartially
consider both possible punishments.
We cannot conceive of how defendant could have been prejudiced by the
circumstance that, during voir dire, the jurors were told by the trial judge and
defense counsel that the words “life without possibility of parole” mean exactly
what they say, but were told later, during deliberations, to ignore the possibility
that a person serving a term of life without possibility of parole might some day be
released. Instructing jurors to take literally the words “life without possibility of
parole” served to impress upon them the seriousness of their decision and to
overcome the common misperception that all life prisoners may eventually be
paroled. (See People v. Thompson (1988) 45 Cal.3d 86, 129-130.) Furthermore,
defense counsel himself informed jurors during voir dire that life without parole
meant exactly that, and the prosecutor’s objection to that statement was overruled
by the trial court.
The court did not err in permitting some jurors to be questioned about their
views concerning the death penalty during the general voir dire. This practice is
not improper. (See People v. Davenport (1995) 11 Cal.4th 1171, 1204.)
Defendant contends that the questioning of some jurors about their views on the
death penalty in the presence of the others tainted them, but fails to establish any
specific prejudice. Defendant similarly fails to establish that the jury was
“tainted” by Juror Carol S., who mistakenly had been dismissed and later was
called back for general voir dire. Carol S. discussed her views on the death
penalty in the presence of the other members of the panel and ultimately was
excused because she would be unable to return a death verdict under any
circumstances. Defendant’s contention that other jurors who were present during
the voir dire of Carol S. learned what answers to give in order to have themselves
removed from the jury is pure speculation.
17
Defendant contends that sealing the juror questionnaires violated his, and
the public’s, right to a public trial. The instructions that accompanied the juror
questionnaires informed the jurors that these documents would be used only by the
court and lawyers and that they would be kept in confidence under seal after the
jury was selected. Defendant’s claim is forfeited by his failure to make any
objection at trial to the handling of the questionnaires. (See People v. Edwards
(1991) 54 Cal.3d 787, 813 [a defendant may waive right to public trial by
acquiescing in an order of exclusion]; People v. Thompson, supra, 50 Cal.3d at
p. 157 [right to public trial may be waived by failure to assert it in a timely
fashion].)
Defendant also contends that the trial court erred in permitting jurors to
take home the questionnaires in order to complete them. This claim is forfeited by
defendant’s failure to object on this ground at trial. In any event, defendant cites
no authority to support this contention. Jurors were informed in writing that their
answers to the questionnaire would have the effect of an answer given under oath
and were directed by the judge to “fill out the questionnaire by yourself and not
discuss it with anyone.” Defendant points to nothing in the record indicating that
any juror failed to abide by these instructions. We cannot discern how the
procedure followed could have affected the impartiality of the jury. (See People v.
Stewart (2004) 33 Cal.4th 425, 456 [rejecting claim that Code of Civil Procedure
section 223 required prospective jurors to complete the questionnaire in the
presence of the other prospective jurors].)
3. Challenges to Juror Peter W.
Defendant makes a number of contentions related to the trial court’s refusal
to excuse Juror Peter W. or to grant defendant an additional peremptory challenge
in order to excuse him. At the time Peter W. underwent general voir dire,
defendant had used 19 of his 20 peremptory challenges. Peter W. worked for the
18
county department of corrections. During voir dire, the prosecutor asked him
whether he knew defendant. Peter W. replied that he was employed in the main
jail, and that he believed defendant “stayed in the old building.” The prosecutor
then questioned him further concerning whether he had seen defendant at the jail.
Defense counsel moved for a mistrial on the ground that the prosecutor improperly
had informed the jurors that defendant was in custody. The court denied the
motion for mistrial but, upon defendant’s request, the court ordered the prosecutor
not to delve any further into the juror’s occupation “as it relates to the defendant.”
Defense counsel asked for one additional peremptory challenge, “because
there is contamination prejudice.” The trial court denied that request as well.
Defense counsel then challenged Peter W. for cause on the ground that the juror
knew that defendant was in custody. Defense counsel questioned the juror further
concerning whether the nature of his job might affect his ability to serve, and the
juror indicated that it would not. During this questioning, Peter W. reconfirmed
his earlier statements that he would be very cautious in making a decision that
could result in a severe punishment. Defense counsel then explained to the judge
that counsel faced a dilemma: he could either employ his last peremptory
challenge to remove a juror who had a leaning against the death penalty, or retain
him even though he was contaminated as a result of his knowledge that defendant
was currently in custody. Defense counsel offered to stipulate to excuse the juror
for cause. The prosecutor agreed to the stipulation for tactical reasons, but stated
he did not believe the trial court had erred in its rulings. The trial court refused to
accept the stipulation, stating that the juror was qualified and that there was no
impediment to his service. Defense counsel employed his final peremptory
challenge to excuse another juror, and Peter W. served on defendant’s jury.
Defendant contends the trial court abused its discretion in refusing to accept
the stipulation. Defendant asserts that the parties are entitled to stipulate to the
19
excusal of a juror absent “extraordinary circumstances.” Instead, “[a]ssessing the
qualifications of jurors challenged for cause is a matter falling within the broad
discretion of the trial court.” (People v. Weaver (2001) 26 Cal.4th 876, 910; see
Code Civ. Proc. §§ 225, subd. (b)(1) [specifying grounds for challenge for cause],
230 [challenges for cause shall be determined by the court].) Defendant has cited
no authority suggesting a court is required to accept the parties’ stipulation that a
juror be excused for cause. (See People v. Singe (1932) 12 Cal.App. 107, 111
[court is not required to accept the parties’ stipulation on issues of law].)
Defendant relies on the test established to determine whether parties who
have settled a case while the appeal is pending are entitled to a stipulated reversal.
(See Neary v. Regents of University of California (1992) 3 Cal.4th 273.) The
standard established in Neary was based, in large part, on policies relevant to the
settlement of civil actions — policies that are inapplicable in the present context.
(See Neary, supra, 3 Cal. 4th at pp. 277-280.)
“On appeal, we will uphold the trial court’s decision if it is fairly supported
by the record, and accept as binding the trial court’s determination as to the
prospective juror’s true state of mind when the prospective juror has given
conflicting or ambiguous statements.” (People v. Farnum (2002) 28 Cal.4th 107,
132.) The court did not abuse its discretion in concluding that Peter W. was
qualified to serve on defendant’s jury. The juror did not have actual contact with
defendant through his employment at the jail and expressed no opinion suggesting
he could not be fair and impartial.3
3
With respect to this and virtually every other claim raised on appeal,
defendant urges that the error or misconduct he is asserting infringed various of
his constitutional rights to a fair and reliable trial. In most instances, to the extent
defendant raised the issue at all in the trial court, he failed explicitly to make some
or all of the constitutional arguments he now advances. In each instance, unless
(footnote continued on next page)
20
Defendant contends that no deference is due the trial court’s ruling, because
juror Peter W.’s employment as a corrections officer in the county jail system
where defendant was housed constituted “implied bias” — a presumption of bias
that could not be overcome by a finding that he could be fair and impartial. Under
California law, a juror may be excused for “implied bias” only for one of the
reasons listed in Code of Civil Procedure section 229, “and for no other.” (Code
Civ. Proc. § 229.) If the facts do not establish one of the grounds for implied bias
listed in that statute, the juror may be excused for “[a]ctual bias” if the court finds
that the juror’s state of mind would prevent him or her from being impartial.
(Code Civ. Proc. § 225, subd. (b)(1)(C).)
None of the statutory grounds for a finding of implied bias is present in this
case, and the trial court concluded that Peter W. was not actually biased.
Defendant argues nevertheless that Peter W.’s position as a corrections officer and
his knowledge that defendant was incarcerated rendered him unable to decide the
(footnote continued from previous page)
otherwise indicated, it appears either that (1) the appellate claim is of a kind (for
example, failure to instruct sua sponte, or erroneous instruction affecting
defendant’s substantial rights) that required no trial court action by the defendant
to preserve it, or (2) the new arguments do not invoke facts or legal standards
different from those the trial court itself was asked to apply, but merely assert that
the trial court’s act or omission, to the extent erroneous for the reasons actually
presented to that court, had the additional legal consequence of violating the
Constitution. To that extent, defendant’s new constitutional arguments are not
forfeited on appeal. (See People v. Partida (2005) 37 Cal.4th 428, 435-438; see
also People v. Cole (2004) 33 Cal.4th 1158, 1195, fn. 6; People v. Yeoman (2003)
31 Cal.4th 93, 117.)
In the latter instance, of course, our rejection, on the merits, of a claim that
the trial court erred on the issue actually before that court necessarily leads us to
reject the newly invoked constitutional “gloss” as well. No separate constitutional
discussion is required concerning such claims, and we therefore provide none.
21
case impartially, and that the failure to excuse him violated the Sixth
Amendment’s guarantee of a trial by an impartial jury. Defendant relies upon
federal cases concluding that bias may be implied or presumed from the “potential
for substantial emotional involvement” inherent in certain relationships. (United
States v. Allsup (9th Cir. 1977) 566 F.2d 68, 71 [jurors should have been excused
for cause from serving on case in which the defendant was charged with robbing a
bank that employed them, even though they claimed they could be impartial]; see
also Fields v. Woodford (9th. Cir. 2002) 281 F.3d 96 [evidentiary hearing required
to determine whether juror whose wife had been the victim of a crime quite similar
to the ones charged was biased]; United States v. Eubanks (9th. Cir. 1979) 591
F.2d 513 [juror who had two sons who were serving long prison terms for murder
and robbery committed in an attempt to obtain heroin should have been excused
from serving in case in which the defendant was charged with conspiracy to
possess and distribute heroin].) Even assuming these federal decisions are
otherwise persuasive, we discern on the present record no potential for the type of
“emotional involvement” that these cases found to be grounds for disqualification.
Peter W. did not work in the part of the jail in which defendant was housed. The
circumstance that he knew defendant was incarcerated did not render him unable
to be impartial. (See, e.g., People v. Valdez (2004) 32 Cal.4th 72, 121; People v.
Bradford (1997) 15 Cal.4th 1229, 1336.)4
4
Defendant also contends that the trial court should have excused Peter W.
under former Code of Civil Procedure section 219, which exempted peace
officers, as defined in section 832, subdivision (a), from jury service in criminal
cases. Defendant concedes that Peter W. was not a “peace officer” within the
meaning of Code of Civil Procedure section 219. (See § 831, subd. (a) [a
custodial officer is a public officer, not a peace officer]; see also County of Santa
Clara v. Deputy Sheriffs’ Assn. (1991) 3 Cal.4th 873.) Nevertheless, he argues
that the statute denies due process and equal protection guarantees of the state and
(footnote continued on next page)
22
Defendant also contends that the trial court abused its discretion in refusing
to grant defendant’s request for an additional peremptory challenge. To support a
claim that he is constitutionally entitled to more peremptory challenges than are
provided by statute, a defendant must establish “at the very least that in the
absence of such additional challenges he is reasonably likely to receive an unfair
trial before a partial jury.” (People v. Bonin, supra, 46 Cal.3d 659, 679; see
People v. Pride (1992) 3 Cal.4th 195, 231 [additional peremptory challenge not
required when the defendant did not demonstrate that the trial court erroneously
denied challenges for cause and none of the allegedly biased prospective jurors
actually served on the jury].) Other than the meritless contention that Peter W.’s
employment at the jail was ground for disqualification, defendant suggests no
reason that an additional peremptory challenge was necessary in order to avoid an
unfair trial. Defense counsel argued that he needed the additional challenge
because the jury panel was tainted by the information that defendant was in
custody, but any such bias could have been addressed through an appropriate
admonition, had one been requested.
4. Denial of challenges based on jurors’ views concerning
the death penalty
Defendant contends that the trial court erred in denying eight challenges to
jurors under Wainwright v. Witt (1985) 469 U.S. 412. “A prospective juror who
would invariably vote either for or against the death penalty because of one or
(footnote continued from previous page)
federal Constitutions by drawing an arbitrary and irrational distinction between
peace officers and jailers. Because defendant did not raise Code of Civil
Procedure section 219 in support of his challenge to Peter W. in the trial court, we
decline to address that argument here.
23
more circumstances likely to be present in the case being tried, without regard to
the strength of aggravating and mitigating circumstances, is . . . subject to
challenge for cause . . . .” (People v. Kirkpatrick (1994) 7 Cal.4th 988, 1005.) “If
the prospective juror’s statements are conflicting or equivocal, the court’s
determination of the actual state of mind is binding. If the statements are
consistent, the court’s ruling will be upheld if supported by substantial evidence.”
(People v. Horning (2004) 34 Cal.4th 871, 896-897.) Under this deferential
standard of review, we find no error. The trial judge concluded that each of the
prospective jurors at issue (none of whom ultimately served on the jury) would
follow the court’s instructions and consider the relevant circumstances before
making a decision. As we explain below, the trial court’s conclusions are
supported by the record.
a) George C.
George C. initially stated that he was “pretty much noncommittal”
concerning the appropriate penalty and would not favor the defense or the
prosecution. He also stated, however, that he would not give much weight to a
defendant’s background, psychiatric evidence, age, childhood abuse, drug use, or
testimony from family members, as long as the person knew right from wrong.
Although he would not afford such evidence much weight, he would consider it.
And, he stated, he would follow the court’s instructions and, if persuaded by the
evidence, could return a verdict of life imprisonment without possibility of parole.
The trial court properly disallowed the challenge. The court noted that although
the prospective juror was somewhat unwilling to give weight to particular
mitigating factors, he was not asked about other mitigating and aggravating
factors, and the juror’s decision is based on “the final evaluation of all the
circumstances.” The prospective juror never stated he would vote for the death
24
penalty without regard to mitigating evidence, but merely expressed his view that
certain types of evidence were not entitled to much weight in the penalty decision.
b) Glenn H.
Glenn H. stated several times that he definitely would vote for the death
penalty if a deliberate, premeditated murder were proved. On his questionnaire he
indicated that anyone who intentionally kills another person automatically should
receive the death penalty and that he would not be willing to give weight to the
defendant’s background. He stated, however, that if he were instructed that he
must consider other evidence, he would follow the instructions. In that
circumstance, he stated he would not automatically vote for death, but the
mitigating evidence would have to be “very overwhelming” to cause him to
change his opinion. Childhood beatings, alcohol or drug problems, and mental
problems short of insanity would not affect his decision. He said he would
consider other mitigating evidence, including whether the defendant was
dominated by someone else, acted under duress, or was a minor participant in the
crime and, if persuaded, could vote for life imprisonment without possibility of
parole. Defense counsel challenged Glenn H. for cause on the ground that the
only mitigating factors he was willing to consider were ones that were not relevant
to the case. The court properly disallowed the challenge, stating that it believed
the juror would follow the law and would consider both penalties before arriving
at a decision. Despite the personal opinions he asserted at the beginning of voir
dire, this prospective juror stated he would consider the mitigating evidence as
required by the court’s instructions and could vote for life imprisonment without
possibility of parole if persuaded that was the appropriate penalty.
c) James L.
James L. stated that a person who commits a murder should receive the
death penalty and that he would automatically vote for the death penalty if he were
25
convinced that an intentional murder had been committed. He also stated,
however, that this was only his opinion ― he would follow the law, keep an open
mind, and consider both penalties. When questioned by defense counsel, James L.
confirmed that he would automatically vote for the death penalty for an
intentional, coldblooded murder. But after the prosecutor and the court further
explained his obligations under the law, he indicated he would keep an open mind
and would seriously consider both penalties. The trial court properly denied
defense counsel’s challenge for cause. The prospective juror acknowledged that
his initially stated views were only his personal opinion and that he would follow
the law requiring him to consider both penalties.
d) John V.
On his questionnaire, John V. wrote that a person who intentionally killed
someone who had done nothing to harm the killer always should receive the death
penalty. If faced with an intentional killing during a robbery or the killing of a
witness, and there was no other relationship between the killer and the victim, he
believed the death penalty always should be imposed. Information concerning the
defendant’s background would not, he stated, carry much significance. He also
stated, however, that he would follow the law as instructed and keep an open
mind, and if the evidence warranted it he could vote for life imprisonment without
possibility of parole. He felt that he would vote for the death penalty, but
conceded it was possible that upon learning more facts he might change his mind.
The trial court properly disallowed defense counsel’s challenge for cause, stating it
appeared the juror was “ambivalent at the moment and would follow the law and
the evidence as given in the case.”
e) Jean A.
Jean A. believed in the death penalty and doubted that life imprisonment
without possibility of parole truly was carried out. But she did not lean strongly
26
toward the death penalty and thought her ultimate decision would depend on the
case and the circumstances. She considered herself an opinionated person and
stated it would take a lot to sway her — the burden would be on the defense to
convince her of extenuating circumstances. At the penalty stage, she could wait
until she heard all the evidence before making a decision. She explained she
would try to keep an open mind, although she would find it difficult to be fair to
both sides because she has very strong feelings against violence and would find it
difficult to be lenient. She did not believe that anyone who intentionally kills
should be sentenced to death automatically because, she conceded, there might be
extenuating circumstances. She thought she could keep an open mind and listen to
whatever extenuating circumstances were presented at the penalty phase, including
psychological testimony. Defense counsel challenged her for cause. The court
found the challenge to present a close question because Jean A.’s answers
fluctuated, but ultimately concluded the prospective juror would follow the court’s
instructions, and hence the court disallowed the challenge. In view of the
prospective juror’s conflicting responses, we defer to the trial court’s conclusion
that she could follow the law.
f) Gary M.
Gary M. had been the victim of a robbery in 1982, during which the robber
attempted to shoot him. He stated that he had considered whether his being shot at
might be a reason to excuse him from the case, but that he was trained in science
and followed the scientific method; he felt he would be willing to follow the rules
and decide the case in accordance with the evidence. He stated that if the killing
were intentional and committed with a gun, he felt the death penalty should be
automatic, but later clarified that he would have to know the circumstances and
hear the instructions on the law. If the judge told him he was to consider the
defendant’s background and the circumstances of the crime in deciding the
27
appropriate penalty, and to keep an open mind, he would follow those instructions
and put aside his personal beliefs. Defense counsel challenged Gary M. for cause
based upon his stated views regarding the death penalty and the fact that he had
been shot at during a robbery. The court properly disallowed the challenge,
stating that the juror was in “the category of those who would favor the death
penalty but would not impose it in every case.”
g) Harley R.
Harley R.’s brother had been the victim of a robbery in 1984, during which
he was beaten with a gun and sustained serious injuries. When questioned
concerning whether that event would have any effect upon him if he served on the
case, the prospective juror stated he believed he could keep an open mind. He
believed the death penalty always should be imposed if a person murders in order
to cover up a crime and that a person’s background should not carry strong weight
if the person knew right from wrong. Although it would be very difficult to
convince him not to vote for the death penalty, it was possible he could be swayed
and could set aside his personal feelings, follow the law, keep an open mind, and
consider all of the mitigating factors. The court properly disallowed the challenge
for cause, finding that the prospective juror favored the death penalty but would
not vote to impose it in every case.
h) Kathryn R.
Kathryn R. stated she believed a person who deliberately killed should be
put to death, in spite of any background or mitigating evidence that might be
presented. She had a sister whose boyfriend had been beaten to death with a
crowbar during a gas station robbery. She stated that this incident might have an
effect on her because the person who committed the offense was only lightly
punished and she was displeased with that outcome. At one point she stated she
was unsure whether she could set aside her personal views concerning the death
28
penalty. After the law and the procedures were explained to her, however, she
indicated she would want to know the defendant’s background and “would hope”
she could keep an open mind and listen to all the evidence. She could vote for life
imprisonment without the possibility of parole “if it was really strong evidence.”
She explained she did not believe drug and alcohol use would constitute such
evidence, but a brutal childhood might hold more weight. It would be difficult
but she would attempt to put aside her personal feelings concerning the death
penalty. Defense counsel challenged her for cause, but the trial court properly
disallowed the challenge. Although her answers were equivocal, the trial court did
not abuse its discretion in concluding she would be willing to follow the law and
consider both possible penalties.
5. Implied bias
Defendant additionally contends that the trial court erred in denying
challenges for cause to four prospective jurors ― three of those discussed above
(Gary M., Harley R., and Kathryn R.) and a fourth, Gary Mc.5 — based on their
asserted “implied bias.” Gary M. had been the victim of a robbery and shooting.
Harley R.’s brother had been the victim of a robbery, during which the brother was
seriously injured. Kathryn R.’s sister had a boyfriend who was beaten to death
during a gas station robbery. Gary Mc. had two friends in law enforcement who
were killed on the job. We apply the same standard of review to challenges for
cause based upon a prospective juror’s bias as we do to challenges based on the
juror’s views concerning the death penalty. “If the prospective juror’s statements
5
Defendant also asserts that juror Gary Mc. should have been excused under
Wainwright v. Witt, supra, 469 U.S. 412, but defendant did not challenge
Gary Mc. in the trial court on the basis of his views concerning the death penalty,
and defendant provides no justification for this claim other than the fact that
Gary Mc. had two friends in law enforcement who were murdered on the job.
29
are conflicting or equivocal, the court’s determination of the actual state of mind is
binding. If the statements are consistent, the court’s ruling will be upheld if
supported by substantial evidence.” (People v. Horning, supra, 34 Cal.4th at
pp. 896-897.)
Jurors Gary M., Harley R., and Kathryn R. were challenged during the
Hovey voir dire, and all of the circumstances indicate that the challenges were
based upon their views concerning the death penalty ― including the impact of
their personal experiences on those views ― and not on any alleged inability to be
impartial regarding guilt or innocence. Thus, the challenges to these jurors have
been fully addressed above.
Defense counsel did challenge Gary Mc. for cause based upon his
relationship with law enforcement. Gary Mc. had been a deputy sheriff. He had
been the victim of a violent assault when he worked as a park ranger and had two
friends in law enforcement who had been murdered. He stated he did not believe
that experience would have any effect upon his ability to consider fairly the
appropriate penalty in this case. During the general voir dire, when defense
counsel questioned him extensively about his relationship with law enforcement
and whether he could be fair if questions were raised regarding the credibility or
performance of a police officer, Gary Mc. insisted he would maintain an open
mind. He stated he could be impartial and listen to the testimony of all witnesses
fairly and would not be prejudiced for or against any officer. This record supports
the trial court’s conclusion that Gary Mc. could be a fair juror. 6
6
Defendant also contends the trial court should have excused Gary Mc. on
the ground he was a “peace officer” and was therefore ineligible to serve under
Code of Civil Procedure section 219. Defendant failed to raise this objection at
trial, but in any event the record does not support his assertion. Gary Mc. was a
reserve deputy sheriff. As such, he had the powers of a peace officer only when
(footnote continued on next page)
30
As he did in relation to the challenge to juror Peter W., discussed above,
defendant argues that bias should be presumed on the basis of these jurors’
experiences with violent crime, relying upon federal cases concluding that bias
may be implied or presumed from the “potential for substantial emotional
involvement” inherent in certain relationships. (See, e.g., United States v. Allsup,
supra, 566 F.2d at p. 71; see also Fields v. Woodford, supra, 281 F.3d 96; United
States v. Eubanks, supra, 591 F.2d 513.) Even assuming, as discussed above, that
such decisions are persuasive, these four potential jurors’ experiences with violent
crime were unconnected to the present case and were not sufficiently similar to
create the type of “emotional involvement” that these cases viewed as a ground for
disqualification.
6. Exclusion of jurors from guilt phase under Witt
Defendant argues he was deprived of due process by the exclusion of jurors
from the guilt phase of his trial because of their stated inability to impose the death
penalty. He invites us to reconsider our contrary conclusion in People v. Fields
(1983) 35 Cal.3d 329. We continue to adhere to that decision, in which we held
that the exclusion of jurors who could not consider imposing the death penalty
from serving on the guilt phase of a capital trial was justified by the “interest of
the state in maintaining a unitary jury for both phases of the trial.” (Id. at p. 353;
see People v. Wader (1993) 5 Cal.4th 610.)
7. Batson-Wheeler issues
Defendant contends the prosecutor employed peremptory challenges to
excuse Hispanic jurors on the basis of race, in violation of his state and federal
(footnote continued from previous page)
specifically assigned to duty. (§ 832.6). The record does not establish that
Gary Mc. had the powers of a peace officer at the time of defendant’s trial.
31
constitutional rights. (See People v. Wheeler (1978) 22 Cal.3d 258; Batson v.
Kentucky (1986) 476 U.S. 79.) After the prosecutor employed one of his few
remaining peremptory challenges to excuse a Hispanic-surnamed juror, defense
counsel objected on the ground the prosecutor was exercising peremptory
challenges on the basis of race. After asking for and receiving the prosecutor’s
explanation for excusing that juror and four other Hispanic jurors, the trial court
ruled that each reason given by the prosecutor was sufficient.
Defendant contends the trial court erred in so concluding and that the
prosecutor’s reasons for excusing Prospective Jurors Norma R., Jimmy B.,
Frank F., and Irene H. were contrived. The United States Supreme Court recently
reiterated the applicable legal standards. “First, the defendant must make out a
prima facie case ‘by showing that the totality of the relevant facts gives rise to an
inference of discriminatory purpose.’ [Citations.] Second, once the defendant has
made out a prima facie case, the ‘burden shifts to the State to explain adequately
the racial exclusion’ by offering permissible race-neutral justifications for the
strikes. [Citations.] Third, ‘[i]f a race-neutral explanation is tendered, the trial
court must then decide . . . whether the opponent of the strike has proved
purposeful racial discrimination.’ ” (Johnson v. California (2005) ___ U.S. ___,
___ [125 S.Ct. 2410, 2416, fn. omitted].) This court gives “great deference to the
trial court in distinguishing bona fide reasons from sham excuses.” (People v.
Turner (1994) 8 Cal.4th 137, 165.) As explained below, the record supports the
trial court’s conclusions that each of the jurors at issue was excused for valid,
race-neutral reasons.
a) Norma R.
The prosecutor explained that, among other reasons, he excused Norma R.
because she did not know whether she could vote for the death penalty. Although
she stated generally that she supported the death penalty for someone who kills
32
intentionally, she repeatedly expressed uncertainty whether she actually could cast
a vote for that punishment as a juror. The prosecutor questioned her intensively
on this subject, as did defense counsel. Ultimately, she stated she thought she
could make the decision, and the trial court denied the prosecutor’s challenge for
cause. The record amply supports the trial court’s conclusion that the prosecutor
had an acceptable, race-neutral reason for excusing this juror. A juror’s reluctance
to impose the death penalty, even if insufficient to justify a challenge for cause, is
a valid reason for a prosecutor to exercise a peremptory challenge. (See People v.
Johnson (1989) 47 Cal.3d 1194, 1222.)
b) Frank F.
Similarly, the prosecutor explained that he excused Frank F. because he
indicated that the prospective juror would impose the death penalty only for
multiple murders. Although he stated he could vote for the death penalty if he
were convinced it was appropriate, Frank F. asserted several times that he would
impose that punishment only if it were shown that the perpetrator enjoyed killing
and killed repeatedly. The prosecutor noted that when asked a question calling for
a yes-or-no answer, Frank F. stated he could vote to impose a death sentence, but
that whenever he was asked a question calling for him to express his own views he
indicated he would expect facts showing multiple murders, or someone who
enjoyed killing, before he could vote to impose a death sentence. In addition, he
described his feelings concerning the death penalty in general as neutral, and
expressed the opinion that life imprisonment without possibility of parole was the
harsher sentence. The prosecutor’s stated reason was valid. (See People v.
Johnson, supra, 47 Cal.3d at p. 1222.)
c) Jimmy B.
Jimmy B. had been convicted of brandishing a weapon and of driving under
the influence. The prosecutor explained that Jimmy B. had suffered the second
33
highest number of convictions of any potential juror, and the prosecutor also had
excused the one prospective juror who had more convictions. Jimmy B. also had
several family members who were heroin addicts and a brother who was confined
in prison. He checked a questionnaire box indicating he was “very liberal”; he had
not given much thought to the death penalty; and at one point he indicated he
would require a showing of multiple murders before imposing the death penalty.
These reasons are adequate, particularly when viewed in combination. “[A] party
may decide to excuse a prospective juror for a variety of reasons, finding no single
characteristic dispositive.” (People v. Gray (2005) 37 Cal.4th 168, 189.)
d) Irene H.
The prosecutor stated he lacked confidence in Irene H. He felt she was not
very bright, and he was concerned about discrepancies between some of her
questionnaire answers and responses she gave during oral voir dire. In the
prosecutor’s opinion, the prospective juror also appeared to be predisposed toward
defense counsel. The prosecutor believed Irene H. might have been an acceptable
juror under some circumstances, but she was not a leader, and at the time he
excused her the group appeared to be lacking in leadership. We recognized the
validity of this type of strategic decision in People v. Johnson, supra, 47 Cal.3d at
page 1220: “If the panel as seated appears to contain a sufficient number of jurors
who appear strong-willed and favorable to a lawyer’s position, the lawyer might
be satisfied with a jury that includes one or more passive or timid appearing jurors.
However, if one or more of the supposed favorable or strong jurors is excused
either for cause or peremptory challenge and the replacement jurors appear to be
passive or timid types, it would not be unusual or unreasonable for the lawyer to
peremptorily challenge one of these apparently less favorable jurors even though
other similar types remain.”
34
Defendant contends the trial court erred by applying the standards set out in
People v. Johnson, supra, 47 Cal.3d 1194, and by not comparing the responses of
the jurors not stricken by the prosecutor with those of the Hispanic jurors he did
strike, in evaluating the good faith of the prosecutor. Defendant did not request
that the trial court engage in such an analysis, but argues that we should do so on
appeal. In Johnson, we held that a reviewing court is not required to engage in a
comparative analysis of jurors. Assuming without deciding that the United States
Supreme Court’s decision in Miller-El v. Dretke (2005) ___ U.S. ___ [125 S.Ct.
2317] (Miller-El) requires us to perform an analysis comparing jurors the
prosecutor excused with those he or she did not excuse, we conclude that the
comparative analysis relied upon by defendant fails to demonstrate purposeful
discrimination.
In Miller-El, the high court stated that “[i]f a prosecutor’s proffered reason
for striking a black panelist applies just as well to an otherwise-similar nonblack
who is permitted to serve, that is evidence tending to prove purposeful
discrimination to be considered at Batson’s third step.” (Miller-El, supra, ___U.S.
at p. ___ [125 S.Ct. at p. 2325].) That analysis does not provide a basis to doubt
the trial court’s findings in the present case, however, because the examples of
“comparative” jurors cited by defendant are not truly comparable to those whom
the prosecutor excused. For example, the circumstance that the prosecutor did not
strike some jurors who had received traffic citations for speeding does not call into
question the validity of his explanation that he excused Jimmy B. because that
prospective juror had convictions for brandishing a weapon and driving under the
influence (which was only one of several reasons given by the prosecutor).
Defendant contends the procedures employed by the trial court were
improper in that the court ruled one at a time on the propriety of each of the
prosecutor’s reasons for excusing the prospective jurors, rather than ruling on the
35
basis of the totality of the circumstances after all of the explanations had been
given. Defendant complains that this procedure deprived defense counsel of the
opportunity to argue, based on all of the circumstances, that the prosecutor was
discriminating against Hispanics, and that the trial court did not make a
meaningful and sincere determination concerning the prosecutor’s intent.7 Even if
it might have been better practice for the trial court to withhold its ruling until
hearing all of the prosecutor’s reasons, we find no basis for concluding that its
ruling might have been different had it done so. The trial court did not deny
defense counsel the opportunity to argue, and defendant does not point to any
circumstances in the record that would support the conclusion that the prosecutor
was discriminating unlawfully in his use of peremptory challenges despite the
apparently valid, race-neutral reasons he provided.
8. Prosecutor’s conduct
Defendant contends the prosecutor engaged in a continual pattern of
misconduct during the voir dire proceedings, violating defendant’s right to a fair
7
Defendant also complains that the trial court improperly suggested a race-
neutral reason for the prosecutor’s decision to strike Judy P. Before the prosecutor
gave his reason, the trial court volunteered that the prospective juror was a
“borderline case,” the same expression the court had used in denying the
prosecutor’s challenge for cause against her based upon her views concerning the
death penalty. Although it is not the trial court’s role to supply reasons to the
prosecutor, in this case the trial court merely stated the obvious. The views
expressed by Judy P. during voir dire made it clear that the prosecutor would not
find her an acceptable juror. Indeed, defendant does not even attempt to argue on
appeal that the prosecutor lacked a valid, race-neutral reason for excluding her.
Under these circumstances, we find no merit in defendant’s contentions that the
trial judge’s comment violated its duty to fairly and impartially consider the
validity and sincerity of the prosecutor’s proffered reasons and that the court
influenced the prosecutor to provide similar, but sham, reasons for excusing other
jurors.
36
trial under the state and federal Constitutions. In essence, he complains that the
prosecutor accused defense counsel of misconduct in the presence and hearing of
prospective jurors, leading to frequent heated exchanges and reciprocal
accusations between the two attorneys. For example, the prosecutor complained
that defense counsel was interrupting him and engaging in distracting conversation
at the counsel table, stated that defense counsel’s answer to a juror’s question was
incorrect and unfair, and accused defense counsel of “grandstanding.”
Defendant did not object to most of the prosecutor’s comments, and to that
extent the claim is forfeited. In any event, the contention is without merit. A
prosecutor’s conduct violates the Constitution only when it is “ ‘ “so egregious
that it infects the trial with such unfairness as to make the conviction a denial of
due process.” ’ ” (People v. Gionis (1995) 9 Cal.4th 1196, 1214; People v.
Espinoza (1992) 3 Cal.4th 806, 820.) Conduct that does not rise to the level of a
constitutional violation will constitute prosecutorial misconduct under state law
only if it involves “ ‘ “the use of deceptive or reprehensible methods to attempt to
persuade either the court or the jury.” ’ ” (Espinoza, supra, 3 Cal.4th at p. 820.)
In the present case, both counsel engaged in a pattern of aggressive advocacy and
mutual expressions of antagonism, which caused the trial court to admonish them
frequently. Although the prosecutor at times might have conducted himself in a
more restrained manner, we do not find that any of these incidents, considered
singly or in combination, amount to prejudicial misconduct.
Defendant did object and requested a mistrial when the prosecutor asked
Prospective Juror Peter W., who worked at the county jail, whether he ever had
seen defendant there. The trial court sustained the objection and directed the
prosecutor not to pursue that line of questioning. Defendant contends the
prosecutor’s voir dire of Peter W. deliberately was designed to inform other jurors
that defendant was in custody and thereby undermine the presumption of
37
innocence. We find no misconduct. Whether Peter W. had contact with defendant
was a legitimate subject of inquiry on voir dire. As we have observed, “the mere
fact that the jury is made aware of a defendant’s custodial status does not deprive
the defendant of his constitutional rights.” (People v. Valdez, supra, 32 Cal.4th
72, 121.) “[I]n certain circumstances a jury inevitably will learn a defendant is in
custody for the current charged offense, for example where the jury is presented
with the testimony of a jailhouse informant.” (People v. Bradford, supra, 15
Cal.4th 1229, 1336 [prosecutor did not commit misconduct in eliciting responses
from a witness about her continuing contacts with the defendant, from which the
jury could have inferred he was in custody].) Furthermore, the trial court
sustained defendant’s objections, and defendant did not request the court to
admonish the jury to ignore the fact that defendant was in custody.
C. Use of Material from Defendant’s First Trial
1. Testimony that defendant had been on death row
Defendant contends the trial court erred in failing to declare a mistrial after
a prosecution witness, during cross-examination, mentioned that defendant had
been on death row. When defense counsel was questioning Jona Cardona about
conversations she testified she had with defendant, she stated, “He called me when
he was on death row.” Although the witness’s statement did not reveal to the jury
that defendant had been on death row as a result of prior proceedings in this same
case, defense counsel subsequently revealed that circumstance. Counsel asked the
witness, “Did you not learn that Mr. Ledesma was previously convicted and went
to death row in this case because he was incompetently represented, that his
attorney was on drugs and gambling during the trial, and because of that the
Supreme Court ruled that he had an unfair trial and that’s why we are back
today?” The witness replied that she did not know, although she might have read
about it in the papers. Counsel further asked, “And you learned, did you not, that
38
he had gone to death row or been sentenced because he had an attorney who did
no investigation, put on a false defense to the court, himself, was on PCP and other
drugs during trial, and was addicted to gambling . . . .” The prosecutor objected to
that question, and the court sustained the objection. When questioning resumed,
defense counsel referred once again to calls that defendant had made to the
witness “during those many years that he sat on death row.”
A few minutes later, outside the presence of the jury, defense counsel
moved for a mistrial. He argued the prosecutor was responsible for the witness
and should have told her in advance not to mention defendant’s having been on
death row. Once that information was revealed, defense counsel tried to minimize
the prejudice by trying to explain the reason for the new trial, but was stopped by
the court when it sustained the prosecutor’s objection. Defense counsel argued
that no admonition the court could give would erase this from the minds of the
jurors. The prosecutor explained that he did admonish this witness not to mention
the previous trial.
The trial court denied the motion for mistrial, noting that it was defense
counsel’s question that indicated that the defendant was on death row as a result of
prior proceedings in this same case. Defense counsel made a strategic decision to
avoid juror speculation concerning whether defendant had committed another
murder and to attempt to mitigate the damaging effects of this information by
explaining to the jury that defendant previously had been convicted of the same
offense for which he now was being tried but that he had not had an adequate
defense at his previous trial.
Although objections had been sustained to counsel’s questions to Cardona
about the prior trial, it was subsequently made clear through other witnesses that
defendant’s prior trial was for the same offense and that prior defense counsel had
not conducted a thorough defense. For example, when the prosecution attempted
39
to impeach defense witnesses who testified about defendant’s drug use on the
grounds that they had not mentioned the subject in the prior trial, defense counsel
brought out the circumstance that the prior defense attorney had not questioned
them on the subject. One of the defense experts, Dr. Evans, testified that prior
defense counsel did not have psychological tests of defendant performed.
Prosecution witness Dr. Glathe testified under cross-examination that he had
performed only the brief examination of defendant that prior defense counsel had
asked him to perform, and that the results of tests that had been performed
subsequently would have been helpful in assessing defendant.
The issue here is whether the witness’s comment was so incurably
prejudicial that a new trial was required. “A mistrial should be granted if the court
is apprised of prejudice that it judges incurable by admonition or instruction.
[Citation.] Whether a particular incident is incurably prejudicial is by its nature a
speculative matter, and the trial court is vested with considerable discretion in
ruling on mistrial motions.” (People v. Haskett (1982) 30 Cal.3d 841, 854.) A
witness’s volunteered statement can, under some circumstances, provide the basis
for a finding of incurable prejudice. (See People v. Wharton (1991) 53 Cal.3d
522, 565 [motion for mistrial properly was denied because court’s admonition and
witness’s later testimony under cross-examination dispelled prejudice]; People v.
Rhinehart (1973) 9 Cal.3d 139, 152 [witness’s inadvertent answer was
insufficiently prejudicial to justify a mistrial].) But we do not presume that
knowledge that a defendant previously has been convicted and is being retried is
incurably prejudicial. (See People v. Anderson (1990) 52 Cal.3d 453, 468 [claim
that trial court improperly disclosed to jury that the defendant previously had been
sentenced to death for the same offense was waived by counsel’s tactical failure to
object, and was not prejudicial].)
40
In the present case, the length of time between the crime and the trial and
the numerous unavoidable references to witnesses’ prior statements created a high
risk that the jury would become aware that defendant had been tried previously.
As the high court has recognized, “it is virtually impossible to shield jurors from
every contact or influence that might theoretically affect their vote.” (Smith v.
Phillips (1982) 455 U.S. 209, 217 [verdict did not deny due process, even though
one juror had applied for employment with the prosecutor’s office during the trial,
absent showing of actual bias].) We find no basis for concluding, on the present
record, that the knowledge that defendant previously had been convicted of
murder and sentenced to death was incurably prejudicial.
Furthermore, defense counsel made a strategic decision to inform the jury
that defendant previously had been convicted of the same offense, rather than a
different crime, and that his conviction was reversed because of the inadequate
defense provided by his attorney. Counsel’s approach appears to be an
appropriate attempt to minimize damage and speculation, particularly in light of
the circumstance that the jury inevitably would learn that defendant had been on
death row if the case went to a penalty phase.8
8
On the present record, we cannot conclude that defense counsel’s decision
to proceed in this manner was unreasonable, and we therefore reject defendant’s
claim that his attorney rendered constitutionally ineffective assistance in choosing
this strategy rather than immediately requesting that the jury be admonished to
ignore the comment. (See Strickland v. Washington (1984) 466 U.S. 668, 688.)
Whether it was preferable to leave the jury to speculate that defendant had been
convicted and was under a death sentence for another murder the jury knew
nothing about, or instead permit the jury to become aware of the circumstances
that led to his being retried and rely upon the jurors to do their duty and decide the
case solely on the evidence before them, is a matter upon which reasonable
counsel might differ. Under such circumstances, we decline to second-guess the
strategic decisions of defense counsel. (See Ledesma I, supra, 43 Cal.3d at
p. 216.)
41
Defendant argues that the jury’s knowledge that the first jury had convicted
him for the same offense was prejudicial not only because it may have influenced
the jury’s verdict directly, but also because it enhanced the credibility of
prosecution witnesses Michael Shay, Floyd Cowdell, and Syvlia Ontiveros, who
had testified at the first trial and whose testimony apparently had been accepted by
the first jury. The jury was given the standard instruction, “You must decide all
questions of fact in this case from the evidence received in this trial and not from
any other source.” We presume the jury followed that instruction.9 There is no
reason to believe that the jurors, who observed each of these witnesses, felt
compelled to ignore the court’s instruction and defer to the judgment of a different
jury that resulted from a different trial. Under these circumstances, we conclude
that the witness’s comment did not require a mistrial.10
9
During the presentation of the evidence, defense counsel asked the court to
instruct that jury that defendant’s prior conviction had been reversed because of
the ineffective assistance provided by his counsel, but the court declined,
commenting, “If they are not aware of it by this time they must have been asleep.”
At the penalty phase, the court specifically instructed the jury that defendant was
being retried as the result of the decision by this court that his previous trial was
unfair, and that the jury was to “disregard completely the result of that first trial in
deciding upon a verdict in the present trial.” No similar instruction was requested
at the guilt phase.
10
Defendant additionally contends his counsel rendered constitutionally
ineffective assistance in failing to seek a protective order to preclude Jona Cardona
and other witnesses from informing that jury that defendant had been on death
row. Defendant has not established that the result at his trial would have been
different had such an order been obtained. The prosecutor stated that he
admonished the witness not to bring up the first trial, and nothing in the record
suggests she did so intentionally.
42
2. Defendant’s prior testimony
Defendant contends the trial court erred in refusing to grant a mistrial after
the prosecutor referred to defendant’s false testimony at his first trial during cross-
examination of defense witnesses. Testifying at his first trial, defendant denied
committing the robbery or murder, claiming that on the day of the gas station
robbery he had loaned his motorcycle to two friends, who later told him they had
committed the robbery. At the retrial, the prosecutor asked defense expert
Dr. Evans whether she had reviewed defendant’s prior testimony. When defense
counsel objected, the court asked the prosecutor, in the presence of the jury,
whether he would be getting into the defendant’s testimony. At that point, the
court conducted a bench conference and directed the prosecutor not to pursue that
line of questioning.
Subsequently, the prosecutor asked defense witness Dr. Rosenthal whether
defendant had admitted to him that he previously lied in court about this matter.
Dr. Rosenthal did not directly answer but instead attempted to clarify the question.
After the court overruled defense counsel’s objection, the prosecutor asked
whether Dr. Rosenthal was comfortable relying upon information provided by a
man who admitted that he lied in court. The court sustained defense counsel’s
objection.
Thereafter, defense counsel moved for a mistrial on the grounds that the
prosecutor’s question denied defendant a fair trial and violated the trial court’s
prior ruling (in the context of the examination of Dr. Evans) that defendant’s prior
testimony was inadmissible. The prosecutor argued that the question was based on
Dr. Rosenthal’s notes, which indicated that defendant told him he had lied at the
first trial. The court denied defendant’s motion for mistrial, concluding there was
no misconduct by the prosecutor and no prejudice.
43
Defendant contends his testimony at his first trial was inadmissible at his
second trial because it was a direct result of the ineffectiveness of his first
attorney. (See People v. Karlin (1964) 231 Cal.App.2d 227, 232 [trial court erred
in admitting at trial a confession the defendant made at his preliminary hearing,
because his attorney had a conflict of interest that prevented her from providing
effective assistance and the defendant’s testimony at the preliminary hearing “was
the product of the failure to honor his constitutional right to adequate legal
representation”].) In our prior opinion, we upheld the referee’s conclusion that
Attorney Parrish “took an active part in the decision to use, and in preparation of,
the alibi defense.” (Ledesma I, supra, 43 Cal.3d at p. 221.) The decision to
present the false alibi derived from Parrish’s ineffective assistance in failing to
undertake adequate investigation and research, especially with regard to the issue
of diminished capacity.
We need not decide whether or not the prosecutor’s reference to
defendant’s prior testimony was a proper means of impeaching the defense’s
expert witnesses because, even assuming for the purposes of discussion that it was
not, defendant has not shown that the prosecutor’s questions caused prejudice that
was “incurable by admonition or instruction.” (People v. Haskett, supra, 30
Cal.3d at p. 854.) As noted earlier, “[w]hether a particular incident is incurably
prejudicial is by its nature a speculative matter, and the trial court is vested with
considerable discretion in ruling on mistrial motions.” (Ibid.)
Defendant’s objections were sustained by the trial court, and neither
witness answered the questions. The jury did not hear specific evidence about
what defendant said in his prior testimony. Defense counsel did not request the
court to admonish the jury to ignore the question and, in any event, the jury was
instructed that questions are not evidence. Furthermore, because defendant did not
testify at the second trial, the defense case did not rest upon his credibility. The
44
jury heard other evidence that suggested defendant was not always truthful;
indeed, the defense theory was that he made numerous false admissions about his
participation in the crime. Under these circumstances, we cannot conclude that the
prosecutor’s brief reference to defendant’s lying in his prior testimony was so
prejudicial as to require a mistrial.11
3. Use of prior testimony to impeach defense witnesses
Defendant contends the prosecutor improperly was permitted to impeach
defense witnesses Adelita Jordon, Pasqual Ledesma, and Ruben Gomez with their
testimony at the previous trial. Defendant asserts the prosecutor’s ability to
impeach these witnesses is attributable to Attorney Parrish’s ineffective assistance.
In Ledesma I, this court concluded that Attorney Parrish had failed to investigate
adequately a diminished capacity defense based upon defendant’s drug use.
(Ledesma I, supra, 43 Cal.3d at p. 223.) As a result of this failure, the witnesses
did not testify at the first trial concerning defendant’s drug use. Subsequently at
the retrial, the prosecutor was able to use these (and other) omissions and
inconsistencies between their earlier testimony and their current testimony to
imply that their current testimony was fabricated.
Defendant cites no authority establishing an absolute bar to the
prosecution’s use of testimony from a previous trial at which the defendant
received ineffective assistance of counsel. Rather, decisions that have addressed
11
Defendant also asserts the trial court erred in ruling that his prior testimony
could be admitted for impeachment purposes if he testified in a manner
inconsistent with that prior testimony, and that this error denied him his rights to
effective assistance of counsel and to testify in his own defense under the Fifth,
Sixth, and Fourteenth Amendments and article I, sections 7 and 15 of the
California Constitution. The record demonstrates, however, that no such ruling
was made with respect to the guilt phase of the trial.
45
such issues have examined the circumstances surrounding the prior testimony and
how it was used in the subsequent trial, to determine whether the evidence at issue
is attributable to counsel’s ineffective assistance and whether its use denied the
defendant a fair trial in the subsequent proceeding. (See, e.g., People v. Sixto
(1993) 17 Cal.App.4th 374 [upholding trial court’s denial of motion for certain
findings and for exclusion of evidence as means of curing effect of ineffective
assistance of counsel at prior trial]; People v. Karlin, supra, 231 Cal.App.2d 227
[the defendant’s admissions made at preliminary hearing, when his attorney had a
conflict of interest, could not be used at his subsequent trial]; see also Ibn-Thomas
v. United States (D.C. 1979) 407 A.2d 626 [the defendant’s testimony at first trial,
after which a mistrial was declared due to ineffective assistance of counsel, could
be used at second trial only for impeachment purposes]; People v. Duncan
(Ill.App.Ct. 1988) 527 N.E.2d 1060, 1062 [because ineffective assistance of
counsel “colored the entire proceeding,” the defendant’s testimony at first trial
could not be used in second trial except for purposes of impeachment].)
Even if the failure of these witnesses to testify at the first trial concerning
defendant’s drug use may be attributed to prior counsel’s ineffective assistance,
we do not find that the use of their prior testimony for impeachment purposes
denied defendant a fair trial. Defense counsel had a full opportunity to rehabilitate
these witnesses and to permit them to explain discrepancies between their prior
testimony and their subsequent testimony. Adelita Jordon testified for the defense
that after she and defendant separated, he began using PCP and there was a
substantial change in his behavior. She remembered that when she served him
with marital dissolution papers, he was very shaky and did not make sense. The
prosecutor cross-examined her regarding her prior testimony that when defendant
came to visit her and her daughters he was polite and pleasant, that she did not
recall whether defendant appeared to be under the influence of drugs at the time
46
she served him, and that he appeared to be “straight” on other occasions when she
saw him at her mother’s house. When asked about these discrepancies, she said
she had been nervous at the prior trial. On redirect examination, she testified that
at the previous trial defense counsel did not ask her anything about defendant
using drugs and he did not ask her whether he was acting strange.
The prosecutor questioned witness Ruben Gomez concerning why he had
not mentioned in his previous testimony that Jona Cardona told him in 1979 that
she heard defendant did not commit the murder and that someone named “Crazy
Joe” had done so. On redirect examination, Gomez testified that at the first trial
defendant’s lawyer asked Gomez only a few questions concerning whether
defendant was a nice person and did not ask him about drug use. Gomez also
explained that he had heard many rumors concerning whether defendant had
committed the crime, and that the conversation with Jona Cardona stood out in his
mind only because she now had become a witness in the case and had testified
differently from what she told him back in 1979. Furthermore, Gomez testified,
he mentioned the conversation as soon as defense counsel told him she was a
witness.
Defendant’s brother Pasqual Ledesma testified he never had seen defendant
use drugs but he had observed him acting as if he were in a daze, out of contact
with reality, and in a state in which he just was not himself. The prosecutor cross-
examined defendant’s brother concerning his prior testimony, in which he stated
he had not seen defendant under the influence of drugs but had only heard rumors
about his drug use. Pasqual responded that, not being an expert in such matters, he
did not necessarily know whether his brother was under the influence of drugs and
that he had not been asked at the prior trial whether his brother seemed to be out of
contact with reality. On redirect examination, Pasqual further testified that since
47
defendant’s first trial, Pasqual had learned more about drug use and had thought
more about his brother’s behavior.
As demonstrated above, each of these witnesses was able to provide
plausible explanations for omissions from their testimony at the first trial,
including prior defense counsel’s failure to develop the issue. Under these
circumstances, prior counsel’s ineffective assistance did not deny defendant a fair
retrial.
D. Testimony of Dr. Glathe
1. Privileges
Defendant contends the admission of the testimony of psychiatrist
Dr. John P. Glathe regarding statements made to him by defendant violated the
attorney-client and psychotherapist-patient privileges and defendant’s Sixth
Amendment right to counsel. Prior to defendant’s first trial, the court appointed
Dr. Glathe at the request of defense counsel. The appointment was made under
Evidence Code section 1017, which provides that the psychotherapist-patient
privilege applies when the psychotherapist is appointed by the court to advise the
defendant’s lawyer regarding defendant’s emotional or mental condition for the
purpose of determining whether to raise insanity or some other mental defense.
(See Ledesma I, supra, 43 Cal.3d at p. 179.) No type of mental defense was
presented at defendant’s first trial, and Dr. Glathe did not testify at that trial.
(Ibid.)
In the subsequent habeas corpus proceeding, one of the claims made by
defendant was that his trial attorney, Mr. Parrish, failed to research adequately the
facts and the law regarding the availability of a diminished capacity defense. The
referee who conducted the habeas corpus hearing ordered defendant, over his
objection, to provide to the prosecution Dr. Glathe’s report and notes. At the
hearing on the habeas corpus petition, the prosecution called Dr. Glathe as a
48
witness, and his report was admitted into evidence. (Ledesma I, supra, 43 Cal.3d
at p. 194, fn. 5.) The report does not mention any confession by defendant, but Dr.
Glathe testified at the hearing that defendant told him he had committed the
charged offenses. (Id. at p. 205.)
One of the defense experts, Dr. Evans, testified at the present trial that she
had read portions of the transcripts of the hearing in the habeas corpus proceeding
as well as this court’s decision in Ledesma I. That decision quotes the full text of
Dr. Glathe’s report and includes a summary of Dr. Glathe’s testimony at the
habeas corpus hearing that references defendant’s confession. (Ledesma I, supra,
43 Cal.3d at p. 194, fn. 5, & p. 205.) During cross-examination, the prosecutor
asked Dr. Evans — without objection — whether she was aware that defendant
had confessed to Dr. Glathe. She testified that she was, but that defendant told her
he was innocent. She commented further that Dr. Glathe had not performed any
psychological tests and that the information he had was inadequate.
Another defense expert, Dr. Clark, also had read this court’s decision in
Ledesma I. When the prosecutor attempted to cross-examine him concerning his
awareness of defendant’s confession to Dr. Glathe, defense counsel objected,
arguing that defendant’s statements to Dr. Glathe were privileged. Defense
counsel objected to any reference to Dr. Glathe’s report, on the grounds that
defendant’s statements to him were protected by the attorney-client and
psychotherapist-patient privileges, and that the prosecution should not be able to
benefit from any evidence produced at the habeas corpus hearing, because it was
produced as a consequence of the ineffective representation provided by Attorney
Parrish at the first trial. The trial court ruled that the prosecutor could question the
experts concerning their awareness of defendant’s statements to Dr. Glathe, and
49
could ask them hypothetical questions regarding the confession, but that the
statements could not be considered for their truth unless Dr. Glathe testified.12
Subsequently, defense counsel asked defense expert Dr. Rosenthal whether,
if defendant had made a confession to a doctor, such a statement might be an
example of his bragging or attempting to bolster himself. Dr. Rosenthal testified
that it might be, and that making a shocking claim could be a way for defendant to
accord himself a sense of power in a relationship with a person in authority.
Defense counsel questioned Dr. Rosenthal concerning the statement in Dr.
Glathe’s report that defendant had exhibited an inappropriately “macho” affect.
Dr. Rosenthal had read Dr. Glathe’s report, and had testified about it at the habeas
corpus hearing in 1985. In Dr. Rosenthal’s opinion, Dr. Glathe’s statement in the
report that defendant probably was sane at the time of the crime was an indication
that more work needed to be done before a conclusion could be reached on that
issue.
The prosecutor called Dr. Glathe to testify in rebuttal. The trial court heard
further argument and ruled that his testimony was admissible. Dr. Glathe,
consulting his notes from his one-hour interview with defendant in October of
1979, testified that defendant told him that at the time of the offense, he had been
laid off from work and had broken up with his girlfriend. According to Dr.
Glathe, defendant told him that he “got the notion” to commit an armed robbery.
He robbed a gas station attendant of $60.00 and used the money to purchase the
drug PCP. He warned the victim he would kill him if he reported the crime.
Thereafter he received an anonymous phone call informing him that the police
12
Dr. Clark testified subsequently that he did not rely on Dr. Glathe’s report
in forming his opinions, and the prosecutor was not permitted to question him
further on that subject.
50
were looking for him. Dr. Glathe recounted defendant’s assertions that he had not
covered the license plate on his motorcycle and that one week after the robbery, he
went back to the gas station and kidnapped the victim, took him to Watsonville,
shot him in the head, back, and chest, and stabbed him. Dr. Glathe also testified
that defendant stated, “If I get the death penalty, I get it, I will hang myself first
rather than give them the pleasure.”
At the time defendant made his statements to Dr. Glathe, they were
protected by the psychotherapist-patient privilege. (Evid. Code, § 1017; People v.
Clark, supra, 50 Cal.3d 583, 621.) But under the patient-litigant exception, the
psychotherapist-patent privilege was lost when defendant put his mental and
emotional state in issue at trial. (Evid. Code, § 1016.)
Because Dr. Glathe conducted a confidential interview of defendant for the
purpose of assisting defense counsel in the preparation and presentation of a
defense, defendant’s statements to Dr. Glathe also were protected by the attorney-
client privilege unless that privilege was waived or an exception applied. (People
v. Lines (1975) 13 Cal.3d 500, 510.) There is no client-litigant exception to the
attorney-client privilege that is comparable to the patient-litigant exception to the
psychotherapist-patient privilege. (Id. at p. 514; Evid. Code, § 1016.) The
attorney-client privilege continues to protect a defendant’s statements to a defense
psychiatrist even if the defendant tenders a mental defense. (Lines, supra, 13
Cal.3d at p. 514.)
The Attorney General argues that Dr. Glathe’s testimony nevertheless was
admissible because defendant waived all privileges when, in the habeas corpus
proceeding, defendant claimed that his trial counsel provided ineffective assistance
in failing to investigate and present a diminished capacity defense. (See In re
Gray (1981) 123 Cal.App.3d 614, 615-617.) Evidence Code section 958 provides
that there is no privilege “as to a communication relevant to an issue of breach, by
51
the lawyer or by client, of a duty arising out of the attorney-client relationship.”
“Thus, for example, if the defendant in a criminal action claims that his lawyer did
not provide him with an adequate defense, communications between the lawyer
and client relevant to that issue are not privileged.” (Recommendation Proposing
an Evidence Code (Jan. 1965) 7 Cal. Law Revision Com. Rep. (1965) p. 176; see
In re Gray, supra, 123 Cal.App.3d at p. 616.) The exception established in section
958 was intended precisely for the type of situation that occurred at defendant’s
habeas corpus hearing.
Defendant does not dispute that the attorney-client privilege was lost for
purposes of the habeas corpus proceeding but contends that his statements to Dr.
Glathe remained privileged for other purposes, including the retrial. Generally, a
waiver of the privilege for purposes of one proceeding is applicable to all
subsequent proceedings. (People v. Clark (1993) 5 Cal.4th 950, 1005 [because the
defendant waived attorney-client privilege by calling psychiatrist to testify during
a suppression hearing, the defendant’s statements to psychiatrist could be used to
impeach other experts who testified at trial]; People v. Haskett (1990) 52 Cal.3d
210, 243 [because the defendant waived privilege by calling psychiatrist to testify
at first penalty trial, psychiatrist could testify regarding the defendant’s admissions
at penalty retrial].) Strictly speaking, however, Evidence Code section 958
establishes an exception to the privilege, not a waiver. A waiver occurs if the
holder of the privilege discloses the communication or consents to disclosure by
another, without coercion, or fails to claim the privilege in a proceeding in which
he or she has the opportunity to do so. (Evid. Code, § 912, subd. (a).) Defendant
asserted the privilege in the habeas corpus hearing, but the referee ruled that
communications to Dr. Glathe were not privileged under Evidence Code section
958. The question presented here is whether the applicability of the section 958
52
exception in the habeas corpus proceeding rendered the privilege inapplicable in
all further proceedings, including the retrial.
This court has not previously had the occasion to address that question.
Defendant relies on People v. Dennis (1986) 177 Cal.App.3d 863, 874-876
(Dennis), which concluded that a defendant must be granted use immunity for
disclosures he makes in support of a motion for a new trial based upon ineffective
assistance of counsel.13 Dennis held that because the information a defendant
would be required to disclose in support of a new trial motion might lighten the
prosecution’s burden in bringing about a conviction upon a new trial, the
defendant should be granted use immunity for the material disclosed. Dennis
relied upon the reasoning of a number of decisions by this court granting use
immunity in other contexts in which it would be unfair to require the defendant to
choose between maintaining a privilege and asserting other important rights. For
example, in People v. Coleman (1975) 13 Cal.3d 867, we concluded that when a
defendant is subject to probation revocation proceedings upon grounds that are
also the basis for criminal charges, his testimony at the revocation proceedings is
inadmissible at a subsequent trial on the criminal charges (except to rebut
inconsistent testimony by the defendant in the criminal trial). We recognized that
the public interest in “informed, intelligent and just revocation decisions” would
be furthered if the probationer were not discouraged from speaking freely at such
proceedings. (Id. at p. 874.) On the other hand, the prosecution’s burden to prove
guilt at a criminal trial without requiring the defendant to incriminate himself
13
In People v. Macias (1997) 16 Cal.4th 739, we cited Dennis for the
proposition that statements made by a defendant during a motion for new trial on
the ground of ineffective assistance of counsel are protected from substantive use
but may be used for impeachment.
53
would be lightened if the prosecution, simply by moving to revoke probation
before the criminal trial, could attempt to force the probationer into making
incriminatory statements at the revocation proceeding. (Id. at p. 876.) We
concluded that to force an individual to choose among the “unpalatable
alternatives” of self-accusation, perjury, or silence at the probation hearing in
order to protect his or her constitutional right not to incriminate oneself at the
criminal proceedings “runs counter to our historic aversion to cruelty reflected in
the privilege against self-incrimination.” (Id. at p. 878.)
Similarly, in Bryan v. Superior Court (1972) 7 Cal.3d 575, 586-589, we
held that a minor’s statements made in connection with juvenile court proceedings
cannot be used against him at a subsequent criminal trial after he has been found
unfit for treatment as a juvenile. We reasoned, in part, that the minor “should not
be put to the unfair choice of being considered uncooperative by the juvenile
probation officer and juvenile court because of his refusal to discuss his case with
the probation officer, or of having his statements to that officer used against him in
subsequent criminal proceedings.” (Id. at pp. 587-588; see also In re Wayne J.
(1979) 24 Cal.3d 595, 602 [admissions made to a probation officer at a required
postdetention interview may not be used at the minor’s juvenile court jurisdiction
hearing]; People v. Harrington (1970) 2 Cal.3d 991, 999-1000 [use immunity
applied to the defendant’s discussion of case details with a probation officer after
conviction].)
Although few courts have addressed the issue directly, the weight of
authority from other jurisdictions supports the reasoning of Dennis, supra, 177
Cal.App.3d 863. The Supreme Court of Pennsylvania has held that “the policy
inherent in the legislative recognition and judicial enforcement of the attorney-
client privilege, as it implicates a defendant’s exercise of the right to effective
assistance of counsel and to freedom from compelled self-incrimination, restricts
54
the use as well as the scope of permitted disclosures. Just as an attorney may not
respond to allegations of ineffectiveness by disclosing confidences unrelated to
such allegations, so the client confidences properly disclosed by an attorney at an
ineffectiveness hearing may not be imported into the client’s subsequent trial on
criminal charges.” (Com. v. Chimel (Pa. 1999) 738 A.2d 406, 424.)
A Missouri appellate court reached a similar conclusion, holding that a
defendant’s testimony at a postconviction hearing challenging his conviction on
the ground of ineffective assistance of counsel could not be admitted against him
when he was retried. (State v. Samuels (Mo. 1998) 965 S.W.2d 913.) Samuels
relied upon the reasoning of Simmons v. United States (1968) 390 U.S. 377. In
Simmons, the United States Supreme Court held that a defendant’s testimony at a
pretrial hearing on his motion to suppress evidence of an illegal search could not
be used against him at trial. The high court reasoned that a defendant should not
be forced to surrender his Fifth Amendment right not to incriminate himself in
order to protect his Fourth Amendment right to be free from unreasonable searches
and seizures. The Missouri court similarly reasoned that a defendant should not be
forced to choose between enforcing his Sixth Amendment right to the effective
assistance of counsel and his Fifth Amendment right not to incriminate himself.
(Samuels, supra, 965 S.W.2d at p. 919; see also Waldrip v. Head (Ga. 2000) 532
S.E.2d 380 [defendant waived attorney-client privilege as to documents relevant to
claims of ineffective assistance, but disclosure of such documents should be
limited to the purpose of rebutting claim of ineffectiveness].)
The United States Court of Appeals for the Ninth Circuit similarly has held,
in an en banc decision, that in federal habeas corpus proceedings the petitioner’s
waiver of the attorney-client privilege arising from a claim of ineffective
assistance of counsel extends only to litigation of the petition. (Bittaker v.
Woodford (9th Cir. 2003) 331 F.3d 715.) Bittaker upheld a district court’s order
55
precluding the disclosure of privileged attorney-client materials for any purpose
other than litigating the federal habeas corpus petition. The court could “conceive
of no federal interest in enlarging the scope of the waiver beyond what is needed
to litigate the claim of ineffective assistance of counsel in federal court.” (Id. at p.
722.) On the other hand, “[a] broad waiver rule would no doubt inhibit the kind of
frank attorney-client communications and vigorous investigation of all possible
defenses that the attorney-client and work product privileges are designed to
promote.” (Ibid.) Furthermore, “[t]he fortuity that defendant’s initial trial was
constitutionally defective gives the prosecution no just claim to the lawyer’s case
file or testimony. To the contrary, allowing the prosecution at retrial to use
information gathered by the first defense lawyer ― including defendant’s
statements to his lawyer ― would give the prosecution a wholly gratuitous
advantage.” (Id. at p. 524.)
We find the reasoning of these cases persuasive. We have recognized that
in some circumstances the attorney-client privilege may apply even when the
communications at issue have been disclosed in another context and are no longer
confidential. (People v. Clark, supra, 50 Cal.3d 583, 620-621 [although defense
psychologist properly disclosed communications to third parties to avert potential
danger to them, thereby eliminating the psychotherapist-patient privilege,
attorney-client privilege nevertheless applied].) In Clark, we noted that the
purpose of the psychotherapist-patient privilege is to promote the therapeutic
relationship, a purpose that “can no longer be achieved once the therapist has
revealed the confidential communications to third parties.” (Id. at p. 621.) In
contrast, however, we found no provision in the Evidence Code that reflected “an
intent that the attorney-client privilege terminate if a communication to an attorney
is made public without a waiver of confidentiality by the client.” (Ibid.) The
attorney-client privilege “exists to permit a client to freely and frankly reveal
56
confidential information, including past criminal conduct, to the attorney or others
whose purpose is to assist the attorney, and to thereby enable the attorney to
adequately represent the client. [Citation.] In a criminal case the privilege also
serves to preserve the defendant’s privilege against self-incrimination . . . . To
make adequate representation possible, therefore, these privileges assure criminal
defendants that confidential statements to their attorney will not be admissible in
any proceeding.” (Id. at p. 620, fn. omitted.)
The purpose of the exception to the attorney-client privilege established by
Evidence Code section 958 is to avoid the injustice of permitting “a client either to
accuse his attorney of a breach of duty and to invoke the privilege to prevent the
attorney from bringing forth evidence in defense of the charge or to refuse to pay
his attorney’s fee and invoke the privilege to defeat the attorney’s claims.” (7 Cal.
Law Revision. Com. Rep., supra, p. 176.) That purpose was fully met when Dr.
Glathe was permitted to testify for the prosecution at the habeas corpus hearing.
To interpret section 958 as abolishing the privilege for all purposes in this context
would raise serious questions as to whether section 958 conflicts with the
defendant’s Sixth Amendment right to counsel, a right that the privilege is
intended to promote.
Furthermore, in a case such as this, in which the defendant successfully
established that his previous attorney provided constitutionally ineffective
assistance, the disclosure of confidential communications at the habeas corpus
hearing can be attributed to the attorney’s ineffective assistance. The admission of
those communications at a retrial may be viewed as a further consequence of the
violation of the defendant’s right to effective assistance of counsel. (Cf. People v.
Karlin, supra, 231 Cal.App.2d 227 [the defendant’s admissions made at
preliminary hearing, when his attorney had a conflict of interest, could not be used
at his subsequent trial].) In light of these serious constitutional concerns, we
57
conclude the attorney-client privilege continues to apply for purposes of retrial
after otherwise privileged matters have been disclosed in connection with habeas
corpus proceedings, under Evidence Code section 958.
Nevertheless, we agree with the Attorney General’s alternative argument
that the privilege was waived at trial when the defense presented the testimony of
expert witnesses who had reviewed and considered Dr. Glathe’s report and prior
testimony. Both Dr. Evans and Dr. Clark testified that they had reviewed this
court’s decision in Ledesma I, which included the complete text of Dr. Glathe’s
report and referred to defendant’s confession to Dr. Glathe. (Ledesma I, supra, 43
Cal.3d at pp. 195, fn. 5, 205.) Dr. Evans had reviewed a transcript of the hearing
in the habeas corpus proceeding, which included Dr. Glathe’s testimony
concerning defendant’s confession to him, and the prosecution cross-examined her
about defendant’s statements to Dr. Glathe without objection.
An expert witness may be cross-examined as to “the matter upon which his
or her opinion is based and the reasons for his or her opinion.” (Evid. Code § 721,
subd. (a).) The scope of cross-examination permitted under section 721 is broad,
and includes examination aimed at determining whether the expert sufficiently
took into account matters arguably inconsistent with the expert’s conclusion. (See
People v. Osband (1996) 13 Cal.4th 622, 712 [under Evidence Code section 721,
subd. (a), expert who was familiar with the defendant’s juvenile record could be
cross-examined about it “to determine whether he took it into account” in forming
his opinion].) “Once the defendant calls an expert to the stand, the expert loses
his status as a consulting agent of the attorney, and neither the attorney-client
privilege nor the work-product doctrine applies to matters relied on or considered
in the formation of his opinion.” (People v. Milner (1988) 45 Cal.3d 227, 241;
compare People v. Coddington (2000) 23 Cal.4th 622, 604-606 [prosecutor’s
cross-examination of testifying defense experts about prior examinations of the
58
defendant by nontestifying defense experts violated work-product privilege, when
testifying experts were not aware of the earlier examinations].)
In People v. Combs (2004) 34 Cal.4th 821 (Combs) we recognized that the
prosecution is entitled to cross-examine an expert concerning an otherwise
privileged report considered by the expert in formulating his or her opinion. In
Combs, a psychiatrist, Dr. Oshrin, examined the defendant and provided a report
to defense counsel. (Id. at p. 862.) Although Dr. Oshrin did not testify, the
prosecutor was permitted to cross-examine two other defense experts concerning
Dr. Oshrin’s report. Both doctors had read and considered Dr. Oshrin’s report and
relied upon portions of it in forming their opinions. (Id. at p. 863.) We rejected
the defendant’s argument that the trial court erred in requiring the defense to
provide a copy of Dr. Oshrin’s report to the prosecution, noting that, contrary to
the defendant’s contention, the defendant voluntarily had furnished Dr. Oshrin’s
report to the prosecutor during the examination of another defense expert, Dr.
Crinella. This court “presume[d] that defense counsel provided Dr. Oshrin’s
report because he knew that the prosecutor was entitled to cross-examine Dr.
Crinella about its contents.” (Id. at p. 862.)
The defendant in Combs also argued that allowing the prosecutor to call Dr.
Oshrin as a rebuttal witness violated the attorney-client privilege. Although we
concluded that the defendant had forfeited the issue by failing to assert the
attorney-client privilege at trial, we addressed the merits of the claim, stating that
“[d]efendant waived any protections that the attorney-client privilege, the attorney
work product doctrine, and the privilege against self-incrimination afforded him
regarding all matters that [the testifying defense experts] considered or on which
they relied, including Dr. Oshrin’s report.” (Combs, supra, 34 Cal.4th at p. 864.)
We rejected the defendant’s argument that the defense experts could be cross-
examined only as to those portions of Dr. Oshrin’s report that they had adopted
59
and relied upon. (Id. at pp. 893-864.) Furthermore, because the defendant waived
all privileges regarding Dr. Oshrin’s report, “the prosecutor was free to call Dr.
Oshrin as a rebuttal witness and to question him about that report.” (Id. at p. 864.)
Likewise, in the present case, defendant waived the protections of the attorney-
client privilege as to his statements to Dr. Glathe by presenting the testimony of
experts who had reviewed and considered Dr. Glathe’s report and his testimony at
the habeas corpus hearing.14
2. Consideration of confession to Dr. Glathe for the truth of
the matter
Defendant contends the trial court erred by instructing the jury that Dr.
Glathe’s testimony concerning defendant’s confession to him could be considered
for the truth of the matter and as evidence of guilt. The trial court did not formally
instruct the jury that Dr. Glathe’s testimony could be considered as evidence of
guilt, but did make statements in the jury‘s presence indicating that the testimony
had been admitted for that purpose. During the cross-examination of Dr. Glathe,
defense counsel asked the court whether it was correct that what the witness had
been told by defendant had not been received for the truth of the matter stated.
The court, in the presence of the jury, replied, “No, it has been offered for the truth
of the matter stated.” Later during the cross-examination, the court sustained an
objection to a question asked by defense counsel that may have appeared to relate
14
Defendant alternatively argues that Dr. Glathe’s testimony should have
been excluded because it was the fruit of former counsel’s ineffective assistance.
We find no basis for concluding that defendant would not have made a confession
to Dr. Glathe had he received competent assistance from his first trial attorney. To
the extent defendant argues that Dr. Glathe’s testimony was the fruit of his
attorney’s ineffective assistance because it was disclosed during the habeas corpus
proceedings, the substance of this argument has been addressed above.
60
to the witness’s opinion concerning whether defendant had been telling him the
truth. The court explained its ruling as follows: “The doctor has testified to a
statement made by the defendant. . . . [B]ut it’s for the jury to determine whether
or not that statement is to be believed. . . . [I]t’s the truth or falsity of the
statement that is in question and this witness cannot help us on that.”
Defendant asserts that the court’s comments were erroneous, because under
In re Spencer (1965) 63 Cal.2d 400 (Spencer) defendant’s statements to Dr. Glathe
could be considered only as the basis for his expert opinion. We have stated, “It
is well settled that an expert’s testimony as to a defendant’s incriminating
statements may not be regarded as proof of the facts described in such statements.”
(People v. Williams (1988) 45 Cal.3d 1268, 1327, citing People v. Cantrell (1973)
8 Cal.3d 672, 683 and Spencer, supra, 63 Cal.2d 400.) This rule derives from our
decision in Spencer. Spencer held that a defendant may be examined by a court-
appointed psychiatrist without the presence of his attorney, but established two
safeguards in order to protect the defendant’s right to counsel: First, the
psychiatrist may not testify unless the defendant puts his or her mental state in
issue. Second, if the psychiatrist testifies, the jury must be instructed that any
incriminating statements made to him or her by the defendant may be considered
only as the basis for an opinion, and not for the truth of the matters stated.
(Spencer, supra, 63 Cal.2d at pp. 412-413.)
Even if Spencer is applicable (and, as discussed below, we conclude it is
not), defendant has forfeited any claim that the trial court’s comments were
erroneous, because he did not request an instruction that Dr. Glathe’s testimony
could be considered only for the limited purpose of evaluating the basis of the
experts’ opinions. The trial court is not required to give the limiting instruction
prescribed by Spencer in the absence of a request. (People v. Cantrell, supra, 8
Cal.3d 672, 683.) Defendant argues that the issue has not been forfeited because
61
any request for a limiting instruction would have been futile. We disagree. The
trial court did indicate in response to defense counsel’s questions that the
testimony was admissible for its truth, but defense counsel never argued that it
could be admitted only for a limited purpose under Spencer. Rather, counsel
argued that Dr. Glathe could not testify at all, because of the attorney-client
privilege. Defense counsel also objected to Dr. Glathe’s testifying on the ground
that his testimony should be excluded under Evidence Code section 352 as more
prejudicial than probative, and as cumulative. Defense counsel did not argue that
the testimony, if admitted, could be admitted for a limited purpose.
Even if the issue had not been forfeited, we would find no error, because
Spencer applies when the defendant’s admissions are made to an expert who has
been appointed to report to the court, but not when the defendant’s admissions are
made to an expert appointed to assist defense counsel. Spencer required a limiting
instruction when an expert who was appointed by the court to examine the
defendant testified regarding the defendant’s mental state. Spencer acknowledged
that under Massiah v. United States (1964) 377 U.S. 201, 205, the defendant has a
right to have counsel present at such an examination, but that “such presence may
largely negate the value of the examination.” (Spencer, supra, 63 Cal.2d at
p. 411.) The court concluded that the presence of counsel at such a psychiatric
examination “is not constitutionally required so long as certain safeguards are
afforded to defendant.” (Id. at p. 412.) These safeguards include the following:
(1) before submitting to an examination by a court-appointed psychiatrist, the
defendant must be represented by counsel or must waive that right; (2) counsel
must be informed of the appointment of the psychiatrist; (3) if the defendant does
not place his or her mental state in issue, the psychiatrist should not be permitted
to testify; and (4) if the psychiatrist does testify, “the court should instruct the
jurors that the psychiatrist’s testimony as to defendant’s incriminating statements
62
should not be regarded as proof of the truth of the facts disclosed by such
statements and that such evidence may be considered only for the limited purpose
of showing the information upon which the psychiatrist based his opinion.” (Id. at
p. 412.) These “safeguards are sufficient to justify the exclusion of counsel from
the psychiatric examination and at the same time avoid a deprivation of
defendant’s constitutional rights.” (Id. at p. 413.) “Under this formulation, a
defendant’s constitutional rights are amply protected, while the court, the
prosecution, and the defendant will obtain the benefit of the testimony of an
impartial psychiatrist as to defendant’s mental condition.” (Ibid.)
Spencer’s rationale is inapplicable when the psychiatrist is appointed to
assist the defense and the communications between defendant and the psychiatrist
are, hence, protected by the attorney-client privilege. When, as in the present case,
the psychiatrist has been appointed to assist the defense and operates under the
attorney-client privilege, the state has not interfered in any way with the
defendant’s right to counsel. The defendant and his or her attorney may decide
whether the attorney should be present when the psychiatrist interviews the
defendant and may decide whether or not to use the results of the examination at
trial. Even if the defendant places his or her mental state in issue, the defendant
does not thereby waive the attorney-client privilege. (People v. Lines, supra, 13
Cal.3d at p. 514.) The psychiatrist may testify only if the defendant calls the
psychiatrist as a witness or waives the privilege in some other manner.
Defendant cites this court’s decision in People v. Morse (1969) 70 Cal.2d
711 (Morse) for the proposition that the safeguards set out in Spencer apply even
when the psychiatrist has been appointed to assist the defense. Morse sometimes
has been cited for that proposition, and on occasion we have assumed that Spencer
does apply to defense psychiatric experts. (See, e.g., People v. Clark, supra, 5
Cal.4th 950, 1008 [jury was admonished not to consider statements made by
63
defendant to defense psychiatrist for the truth of their contents; defendant’s claim
that evidence was misused for its substance was rejected]; People v. Cantrell,
supra, 8 Cal.3d 672, 683-684 & fn. 2 [finding no error in the court’s failure to give
a limiting instruction under Spencer, because the defendant had not requested one
when three psychiatrists, called by the defense (one of whom had been selected by
the defendant’s counsel to advise the defense), testified concerning the defendant’s
incriminating statements]; see also People v. Balderas (1985) 41 Cal.3d 144, 167,
fn. 7 [trial court admonished jury to consider defense expert’s testimony
concerning the defendant’s admissions only as bearing on his opinion and not as
evidence of guilt].)
Nevertheless, Morse, supra, 70 Cal.2d 711, does not hold that the Spencer
safeguards apply whenever the psychiatrist has been appointed to assist the
defense. In Morse, a psychiatrist testified for the defense and gave an opinion
concerning the defendant’s mental state at the time of the offense. During cross-
examination, the psychiatrist admitted he had reviewed a transcript of an interview
between the defendant and police officers. The trial court previously had ruled
this interview inadmissible because it was conducted in violation of the
defendant’s right to counsel. Nevertheless, the trial court permitted the prosecutor
to question the psychiatrist about several of the statements made by the defendant
during the police interview but admonished the jury that it could consider those
statements only for the purposes of testing the psychiatrist’s credibility and
opinion. (Id. at p. 725.)
On appeal the defendant argued that, because the interview had been
obtained in violation of his constitutional rights, it “could not form the basis of
cross-examination without infringing upon those same rights.” (Morse, supra, 70
Cal.2d at p.725.) Analogizing to Spencer, this court rejected the defendant’s
argument, because the jury had been admonished to consider the statements only
64
for the purpose of impeaching the expert and not for their substance. (Morse,
supra, 70 Cal.2d. at p. 726.) This court indicated that the circumstances that the
psychiatrist involved was appointed specifically to aid the defense, and that there
were other differences between the two cases, “do not render our Spencer rationale
inapplicable.” (Ibid.) In both situations — the defendant’s interview with the
court-appointed psychiatrist without the presence of counsel in Spencer, and the
defense experts’ consideration of the defendant’s statements to the police made
without counsel in Morse — “defense counsel has consented to the use of
incriminating statements for the purpose of psychiatric evaluation. . . . In either
situation the defense can have no cause for complaint when the incriminating
statements are brought to light as one of the bases of the expressed opinion,
provided of course that the proper limiting instruction has been given.” (Ibid.)
The “Spencer rationale” that applied in Morse was Spencer’s conclusion
that a defendant’s right to counsel is not violated if a limiting instruction is given.
A violation of the defendant’s right to counsel in Morse occurred because he was
interviewed by the police without his counsel being present, not because he was
interviewed by the defense psychiatrist without his counsel being present. Morse
does not support the proposition that the defendant’s right to counsel, or any other
constitutional right, is violated when a defense psychiatrist testifies concerning
statements made to him or her by the defendant. Neither Spencer nor Morse
supports the conclusion that a limiting instruction must be given even when the
constitutional right to the assistance of counsel is not at issue. Accordingly, the
trial court was not required by Spencer to instruct the jury that Dr. Glathe’s
65
testimony concerning defendant’s statements could not be considered as proof of
the truth of the matter stated.15
Furthermore, we cannot conclude that the absence of a limiting instruction
denied defendant a fair trial. Defendant’s confessions to other witnesses already
were properly before the jury. It was permissible for the jury to consider the fact
that defendant made a confession to Dr. Glathe for the nonsubstantive purpose of
rebutting the defense experts’ theory that his similar confessions to other witnesses
were false. Under these circumstances, “a limiting instruction would have had
little or no effect.” (People v. Cantrell, supra, 8 Cal.3d at p. 683 [absence of a
limiting instruction required by Spencer did not deny the defendant a fair trial
when incriminating statements he made to psychiatrists were essentially the same
as those he made to other witnesses].)
3. Evidence Code section 352
Defendant further asserts that the trial court erred in admitting Dr. Glathe’s
testimony under Evidence Code section 352, asserting that it was more prejudicial
than probative. We review the trial court’s ruling for abuse of discretion. (People
v. Holloway (2004) 33 Cal.4th 96, 134.) The evidence was relevant to rebut
defendant’s assertions that he had not confessed to other witnesses or that in doing
so he was merely bragging. Defendant contends the jury could not properly
evaluate whether Dr. Glathe’s testimony related a true or false confession without
15
Of course, if the statements concerning which a psychiatrist testifies do not
fall within an exception to the hearsay rule, they would be admissible only as the
basis of the psychiatrist’s opinion, and a limiting instruction normally would be
given if requested. (See CALJIC No. 2.10 [which was given at defendant’s trial];
see also Judicial Council of Cal. Crim. Jury Instns. (2006) CALCRIM No. 360.)
Here, however, defendant’s statements to Dr. Glathe constituted admissions, and
the hearsay rule did not prevent the jury from considering them as proof of the
matters asserted. (Evid. Code, § 1220.)
66
considering the context in which defendant’s statement was made, including the
ineffective assistance of prior counsel, and that such consideration could not be
accomplished without undue prejudice. The question of whether defendant’s
confessions were false was fully litigated, however. Defense counsel cross-
examined Dr. Glathe concerning his failure to conduct further psychological tests
or explore the truth or falsity of the confession, and Dr. Glathe admitted that ―
had he been aware defendant had a pattern of telling stories and had brain
damage ― those circumstances might have affected his expert opinion. Defense
expert Dr. Rosenthal testified that defendant could have made a false confession to
Dr. Glathe as a means of establishing power in a relationship with an authority
figure. We find no abuse of discretion.
4. Evidence Code section 804, subdivision (b)
Defendant argues alternatively that Dr. Glathe’s testimony should have
been excluded under Evidence Code section 804, because Dr. Glathe was
defendant’s agent within the meaning of that statute. Subdivision (a) of section
804 provides that if an expert witness testifies that “his opinion is based in whole
or in part upon the opinion or statement of another person, such other person may
be called and examined by any adverse party as if under cross-examination
concerning the opinion or statement.” Section 804 does not apply if the person
upon whose opinion the expert relied is “identified with” a party, a term that
includes someone who is an agent of the party. (Evid. Code, §§ 804, subd. (b),
776, subd. (a).)
Defendant’s argument is misplaced. Evidence Code section 804 governs
the manner of examination; it permits a party to cross-examine the expert even
though the expert is the party’s own witness. (See 7 Cal. Law Revision Com.
Rep., supra, p. 152.) The circumstance that section 804 does not apply if the
expert is an agent of a party does not preclude calling the expert as a witness; that
67
circumstance simply signifies that the examination is governed by other applicable
statutes. (See, e.g., Evid. Code, § 776 [authorizing a party or person identified
with a party to be called as a witness by an adverse party, but requiring that
counsel for the party who is the witness or is identified with the witness examine
the witness as if on redirect examination]; 7 Cal. Law Revision Com. Rep., supra,
p. 1221 [noting that language of Evidence Code section 1203, subdivision (b),
which is identical to the relevant language of Evidence Code section 804,
subdivision (b), would prohibit counsel for a party from examining his or her own
client as if under cross-examination].)
E. Interception of Telephone Call
Defendant contends evidence of a telephone call from him that was
intercepted by police officers when they were in his apartment was obtained in
violation of the Fourth Amendment of the federal Constitution and article I,
section 13 of the California Constitution and should have been excluded at trial.
Evidence presented in the trial court at a hearing on defendant’s motion to
suppress evidence of the telephone call established the following:
When the police interviewed the victim (Mr. Flores) about 15 minutes after
the robbery, he reported a license plate number for the motorcycle that had been
used by the robbers. Defendant was the registered owner of that vehicle. His
name and the address used for the registration were broadcast over the police
radio. Officer Webster heard the broadcast and promptly went to the address,
where he was told that defendant no longer resided at that location but now resided
in a duplex in the vicinity of Third and Hedding in San Jose and that he drove a
white Cadillac. As Officer Webster drove around the area of Third and Hedding,
he observed a white Cadillac parked in a driveway in front of a house. Webster
ran a check on the license plate and found that the Cadillac was registered to
defendant. The officer watched the house for approximately 20 minutes until
68
additional officers arrived. He and two other officers went to the front door, and
he knocked at approximately 6:15 or 6:30 p.m.
The door was answered by Lawrence Santiago, who stated when asked that
he was not defendant and that defendant was not in the house. Officer Webster
asked Santiago whether he would mind if the officers entered and looked around.
Santiago said he was just visiting but that he did not mind, and stepped back to let
the officers in. Millie Dominguez also was present. The officers entered and
searched the house but did not find defendant. One of the two occupants of the
house mentioned that defendant had called earlier and was expected to call back.
When the telephone rang, the officers instructed the occupants not to answer it.
Officer Guerra picked up the phone, pretending to be Millie Dominguez. The
caller identified himself as defendant and said that he was “hot” and that the police
were looking for him. He instructed her to lock the doors of the apartment and the
Cadillac and to take a walk.
The trial court denied defendant’s motion to suppress, concluding that the
officers’ entry into the house was consensual, and that the interception of the call
was the result of a “fresh pursuit situation.” Officer Guerra was permitted to
testify at trial concerning the contents of the telephone call.
In its opinion reversing defendant’s first conviction, this court concluded
that counsel at defendant’s first trial provided ineffective assistance in failing to
move to suppress evidence of the intercepted telephone call. We observed that
because the officers’ entry into the apartment was without a warrant, it was
presumptively unlawful. (Ledesma I, supra, 43 Cal.3d at p. 227.) However, we
also noted that if counsel had challenged the admissibility of the call, “the
prosecution may well have been successful in rebutting the presumption of
unlawfulness,” and stated that the prosecution was not foreclosed from attempting
on retrial to “rebut the presumption of unreasonableness.” (Id. at p. 227, fn. 11;
69
see also id. at p. 236 (conc. opn. of Mosk, J.) [concluding that it appeared the
police entry was not based on voluntary consent and that even if it was, the
consent did not extend to interception of the telephone call, but noting that if
defense counsel had challenged the admissibility of the intercepted call, the
prosecutor “might have presented evidence and argument to show that the entry
was lawful or that the intercepted telephone call was admissible”].) We conclude,
based on the record of the retrial, that the prosecution succeeded in rebutting the
presumption that the entry into defendant’s house and subsequent interception of
the telephone call were unlawful.
To establish consent, the prosecution was required to prove that the officers
reasonably and in good faith believed that Santiago had the authority to consent to
their entry into the apartment. (See Illinois v. Rodriguez (1999) 497 U.S. 177;
People v. Escudero (1979) 23 Cal.3d 800.) Although Santiago was just visiting,
he and Dominguez were present in the apartment in the early evening when
defendant was not at home. Cases from a number of jurisdictions have recognized
that a guest who has the run of the house in the occupant’s absence has the
apparent authority to give consent to enter an area where a visitor normally would
be received. (See, e.g., United States v. Turbyfill (8th Cir. 1975) 525 F.2d 57; Nix
v. State (Alaska 1981) 621 P.2d 1347; State v. Thompson (Minn. 1998) 578
N.W.2d 734; see also 4 La Fave, Search and Seizure (4th ed. 2004) § 8.5(e).)
Furthermore, the police may assume, without further inquiry, that a person who
answers the door in response to their knock has the authority to let them enter.
(See Mann v. Superior Court (1970) 3 Cal.3d 1 [entry was consensual where the
police knocked on the door of the defendant’s house, in which a party was taking
place, and voices inside called out “come in”].) There is no indication that the
consent given here was involuntary. The officers asked Santiago for permission to
enter and inspect; such a request, by its nature, carries the implication that
70
permission may be withheld. (See People v. James (1977) 19 Cal.3d 99, 116.)
Therefore, the officers reasonably believed they had consent to enter and were
lawfully in the apartment when they answered the phone.16
The officers’ interception of defendant’s phone call when they were
lawfully present in his apartment was not improper, because it was based on
probable cause, and exigent circumstances justified the officers’ failure to obtain a
warrant. The information supplied by Santiago and Dominguez gave them reason
to believe that the incoming call would be from defendant and that, by answering
it, they would obtain information leading to his imminent capture. (See People v.
Sandoval (1966) 65 Cal.2d 303, 308 [officers who were engaged in a lawful
search justifiably could answer the telephone and conceal their identity, because
they had information that the telephone was being used in drug transactions];
People v. Dreislein (1985) 170 Cal.App.3d 591 [same].) The delay required to
obtain a warrant obviously would have resulted in the loss of this opportunity.
People v. Harwood (1978) 74 Cal.App.3d 460 is distinguishable. In that
case, the court held that consent to enter and search the premises did not include
consent to intercept telephone calls. In Harwood, the police suspected that
narcotics were kept in the apartment but had no specific information indicating
that the telephone was being used for narcotics transactions. (Id. at p. 468.) In the
present case, the police had specific information that defendant was likely to call
16
Contrary to defendant’s contention at oral argument, the recent decision of
the high court in Georgia v. Randolph (2006) 126 S.Ct. 1515, ___ U.S. ___ does
not affect our conclusion. That case held that the police cannot reasonably rely on
one co-occupant’s consent to search a residence when the other co-occupant
expressly refuses consent. It does not change the legal standards applicable to the
present case, in which defendant was not present when the police received consent
to enter his residence and did not refuse such consent.
71
and thus reason to believe that answering the telephone could lead to information
regarding his location.
F. Testimony of Jona Cardona
Defendant argues that several of the trial court’s various rulings regarding
defense counsel’s attempts to impeach prosecution witness Jona Cardona were
erroneous and denied him his right to confront and cross-examine the witness
under the confrontation clause of the federal Constitution. Trial judges retain
“wide latitude insofar as the Confrontation Clause is concerned to impose
reasonable limits on such cross-examination based on concerns about, among
other things, harassment, prejudice, confusion of the issues, the witness’ safety, or
interrogation that is repetitive or only marginally relevant.” (Delaware v. Van
Arsdall (1986) 475 U.S. 673, 679-680; see People v. Jennings (1991) 53 Cal.3d
334, 372.) A trial court’s ruling to admit or exclude evidence offered for
impeachment is reviewed for abuse of discretion and will be upheld unless the trial
court “exercised its discretion in an arbitrary, capricious, or patently absurd
manner that resulted in a manifest miscarriage of justice.” (People v. Rodriguez
(1999) 20 Cal.4th 1, 9-10.) As explained below, we find no abuse of discretion in
the trial court’s rulings.
First, defendant challenges the trial court’s ruling sustaining objections to
defense counsel’s questions regarding burglary charges that were pending against
Cardona in 1980, at the time she made an anonymous telephone call to the police
to report discussions she had heard about the murder. The trial court ruled that the
information sought to be elicited by defense counsel was not relevant to
establishing that she had a motive to lie in order to curry favor with the police,
because the call was anonymous; she could not have received favorable treatment
had the police not known who she was. This conclusion is reasonable, and the
trial court did not abuse its discretion. Likewise, the trial court did not abuse its
72
discretion in sustaining objections to defense counsel’s questions concerning Ms.
Cardona’s involvement in a variety of criminal activities, including prostitution
and the use and distribution of drugs. To the extent evidence of such activities
was relevant to her credibility, it was cumulative. Cardona testified that she had
felony convictions for burglary and petty theft with a prior, that she had been
arrested and went to jail many times, that she had served time in prison, and that
she had used drugs, including PCP and heroin.
Second, defendant challenges the trial court’s ruling sustaining objections
to a line of questions asked by defense counsel regarding Cardona’s
hospitalization for psychiatric treatment in 1972. Defense counsel attempted to
inquire whether, when she was in the mental hospital, she had expressed violent
feelings toward her child or other violent fantasies, whether she was told that she
was a person who manipulated other individuals and had a psychopathic streak,
and whether she had told anyone she had delusions, hallucinations, confusion, and
poor memory. The trial court sustained objections to these questions on the
grounds of relevance and, in some instances, privilege, and ordered counsel to
discontinue this line of questioning. The trial court did not abuse its discretion.
The hospitalization occurred in 1972, more than 16 years before her testimony at
trial, and thus had little bearing on Cardona’s credibility at the time she testified.
(See People v. Rodriguez (1986) 42 Cal.3d 730, 749 [trial court did not err in
excluding testimony regarding the witness’s psychiatric treatment five years
before trial, when she was only 15 years of age, because the evidence “did not
have sufficient bearing upon the credibility of her testimony at the trial, when she
was 20”].)
Third, defendant contends the trial court erred in refusing to permit him to
establish, through the testimony of Mary Perez, that Cardona could have been
motivated by jealousy and revenge to falsely implicate Jesse and George Perez.
73
The trial court did not abuse its discretion in excluding this evidence, the relevance
of which was minimal. The testimony did not provide any motive for Cardona to
falsely implicate defendant.
Defendant also contends the trial court should have instructed the jury, on
its own motion, on the rule that an accomplice’s testimony should be viewed with
distrust and must be corroborated. (See CALJIC Nos. 3.10-3.18.) Defendant’s
theory is that the jury could have believed that Cardona did not actually hear
defendant confess to the crimes, and that her testimony was based instead on
information she received from George Perez, one of defendant’s accomplices in
the murder. Instructions on accomplice testimony must be given if there is
evidence to support the conclusion that a prosecution witness was an accomplice.
(People v. Guiuan (1998) 18 Cal.4th 558, 564-565.) No accomplice testified at
defendant’s trial, and defendant’s theory that Cardona indirectly testified based
upon information obtained from an accomplice amounts to nothing more than
conjecture.
G. Hearsay Statements of Gabriel Flores
1. Identification of defendant in photographic lineup
Defendant contends the trial court improperly admitted hearsay testimony
that the victim Flores picked defendant’s picture out of a photographic lineup.17
After a pretrial hearing on the issue, the trial court ruled that evidence of the
identification was relevant for a nonhearsay purpose — to establish that
defendant’s motive for killing Flores was to eliminate him as a witness. The
identification that was made provided evidence of a motive, regardless of whether
17
In Ledesma I, we concluded that trial counsel’s failure to move pretrial to
bar reference to the identification, or at least to object to such reference, amounted
to incompetence. (Ledesma I, supra, 43 Cal.3d at p. 224.)
74
it was accurate. The trial court also concluded that the probative value of the
evidence was not outweighed by its prejudicial effect. The court instructed the
jury that this evidence was offered to show a motive for the murder and was not to
be considered for its truth, that is, to prove that defendant committed the robbery.
It was alleged as a special circumstance that the victim was “intentionally
killed for the purpose of preventing his testimony in any criminal proceeding.”
(Former § 190.2, subd. (c)(2).) It is the “accused’s subjective intent that is
crucial” to establish the witness-killing special circumstance. (People v. Weidert
(1985) 39 Cal.3d 836, 854.) In People v. Heishman (1988) 45 Cal.3d 147, 171, we
held that evidence establishing that the deceased victim had identified the
defendant as the person who had raped her was admissible to prove a witness-
killing special circumstance. In Heishman, the defendant actually had been
charged with the rape at the time of the capital crime. Although the defendant’s
knowledge of the pending charges provided some evidence that he killed the
victim to prevent her from testifying, we concluded that evidence demonstrating
that she actually had identified him nevertheless was relevant to prove the special
circumstance allegation. The defendant “would not likely believe it was necessary
to kill his accuser unless he knew or believed she had identified him to the police
and was prepared to identify him at trial.” (Id. at p. 172.)18
Defendant contends that the victim Flores’s identification of defendant’s
photograph nevertheless should have been excluded as more prejudicial than
18
Because Flores’s statements were admitted for a nonhearsay purpose, their
admission did not, as defendant contends, violate the confrontation clause of the
Sixth Amendment of the federal Constitution. “The Clause . . . does not bar the
use of testimonial statements for purposes other than establishing the truth of the
matter asserted.” (Crawford v. Washington (2004) 541 U. S. 36, 60, fn.9; see
Tennessee v. Street (1985) 471 U.S. 409, 414.)
75
probative under Evidence Code section 352 because of the risk that the jury would
use it for an improper purpose, that is, to prove the charge that defendant robbed
Flores. Defendant also contends the probative value of the actual identification
was minimal, because there was other evidence from which the jury could
conclude that defendant believed he had been identified ― namely, that the police
had told Jesse Perez that a witness had identified defendant, and Jona Cardona
testified that defendant knew he had been identified.
We review for abuse of discretion the trial court’s decision that the
evidence was admissible under Evidence Code section 352. (People v. Holloway,
supra, 33 Cal.4th at p. 134.) Other witnesses testified that defendant’s motive in
killing the victim was that he had identified defendant, but that did not render
proof of the actual identification superfluous as to motive. Jona Cardona testified
that, before the killing, defendant told her he had committed a robbery at a gas
station and wanted to obtain revenge on the victim because he had picked out
defendant from a photograph and had his motorcycle license number. Shirley
Chavez testified that defendant admitted he killed the victim because he had
identified him. Evidence of the identification tended to corroborate the testimony
of these other witnesses ― witnesses whose credibility the defense vigorously
challenged at trial. Furthermore, the risk that the jury would rely on the
identification as proof of defendant’s guilt of the robbery was low, because several
other witnesses testified that defendant had admitted committing the robbery. The
trial court did not abuse its discretion.
Defendant also contends the actual photo display from which the victim
Flores made the identification was irrelevant and should have been excluded under
Evidence Code section 352. Defendant argues the photo display was prejudicial
because the jury could have interpreted defendant’s photograph as a “mug shot”
76
and could have concluded he had been previously arrested and had a criminal
history. The trial court rejected that argument, ruling there was nothing about the
photograph that would identify it as a “mug shot.” Having reviewed the
photograph at issue, we agree.
2. Statements describing robbery and license plate number
Defendant further contends the trial court erred in admitting, as
spontaneous declarations, victim Flores’s hearsay statements concerning the
robbery and the license plate number of the motorcycle used in the robbery.
“Evidence of a statement is not made inadmissible by the hearsay rule if the
statement: [¶] (a) purports to narrate, describe, or explain an act, condition, or
event perceived by the declarant; and [¶] (b) Was made spontaneously while the
declarant was under the stress of excitement caused by such perception.” (Evid.
Code, § 1240.) We review for abuse of discretion the trial court’s decision to
admit evidence as a spontaneous declaration. (People v. Phillips (2000) 22
Cal.4th 226, 236.)
The trial court conducted a hearing at which Officer Guerra testified that
when she interviewed the victim Flores at the gas station on August 26, 1987, he
appeared to be nervous. He said he had been robbed about 15 minutes earlier,
described the robbery and robbers in some detail, and gave her the license plate of
the motorcycle they were driving. The trial court concluded that Flores’s
statements to Officer Guerra were admissible as spontaneous declarations, and
Officer Guerra testified concerning these statements at trial. In addition, Flores’s
supervisor, Eulalio Solorio, testified that on the day of the robbery, Mr. Flores
called him at home, sounding scared. Flores told Mr. Solorio that he had just been
robbed and that he had recorded the license number of the getaway motorcycle.
The trial court’s decision is sufficiently supported by the evidence. Mr.
Flores described a robbery that he had personally perceived, shortly after it
77
occurred. The court’s conclusion that he was under the stress of the event at the
time he made the statements is supported by the brief lapse of time before he made
the statement, by Officer Guerra’s statement that he seemed nervous, and by Mr.
Solorio’s statement that he sounded scared. That statements were made to Officer
Guerro in response to her questions does not render the exception inapplicable.
“Neither lapse of time between the event and the declarations nor the fact that the
declarations were elicited by questioning deprives the statements of spontaneity if
it nevertheless appears that they were made under the stress of excitement and
while the reflective powers were still in abeyance.” (People v. Washington (1969)
71 Cal.2d 1170, 1176.)
Defendant contends that the admission of Mr. Flores’s statements to the
police regarding the robbery nevertheless violated his Sixth Amendment right to
confront the witnesses against him. The confrontation clause applies to hearsay
statements that are “testimonial” in nature, including statements made during
police interrogation. (Crawford v. Washington, supra, 541 U. S. 36.) Such
hearsay may be admitted at trial only if the declarant is unavailable and the
defendant has had a previous opportunity to cross-examine the declarant. The
high court recently concluded that hearsay statements are testimonial when made
in the course of police interrogation and “the circumstances objectively indicate
that there is no . . . ongoing emergency, and that the primary purpose of the
interrogation is to establish or prove past events potentially relevant to later
criminal prosecution.” (Davis v. Washington (2006) ___ U.S. ___, ___ [126 S.Ct.
2266, 2273-2274].)
Assuming for the purposes of discussion that Mr. Flores’s statements to
Officer Guerra were made in response to interrogation and that their admission in
this case violated defendant’s Sixth Amendment rights, we conclude that any error
78
was nevertheless harmless beyond a reasonable doubt.19 To the extend that
Officer Guerra’s testimony tended to establish that Flores had been robbed and
tended to connect defendant to that robbery, it was cumulative of other evidence.
Mr. Solorio testified that the victim told him he had been robbed and had obtained
the license plate number of the motorcycle used in the robbery. He also testified
that $30 was missing from the gas station. Numerous other witnesses testified that
defendant had admitted committing the robbery.
H. Admission of Witnesses’ Prior Statements
1.
Santiago
Ontiveros
Defendant contends the trial court erred in admitting testimony regarding
statements made by the witness Santiago Ontiveros during a police interview.
When Ontiveros testified at trial, he denied that defendant had told him he was
involved in a robbery or that Ontiveros had told anyone else that defendant had
admitted being involved in a robbery. He further testified that he did not
remember any conversation with a San Jose police officer in March of 1979.
When the prosecutor asked him how he could flatly deny telling anyone that
defendant had committed a robbery, but also testify that he did not remember what
he told the police, he stated, “It’s in my nature. I wouldn’t tell anything to begin
with.”
19
Because we conclude that the admission of Mr. Flores’s hearsay statements
was harmless in any event, we do not address whether, because defendant was
responsible for Mr. Flores’s death, his statements were admissible under the rule
of “forfeiture by wrongdoing,” which the high court has recognized “extinguishes
confrontation claims on essentially equitable grounds.” (Crawford v. Washington,
supra, 541 U.S. at p. 62; Davis v. Washington, supra, ___ U.S. ___, ___ [126
S.Ct. at p. 2280].)
79
Over a hearsay objection, a police officer testified that in March of 1979 he
interviewed Ontiveros, who said that defendant had told him that defendant and
Jesse Perez were involved in the robbery at the Hudson gas station. In addition,
the prosecutor was permitted to play for the jury a portion of the tape-recorded
interview during which Ontiveros told an officer that he did not know anything
about the murder, but that defendant had told him that Jesse Perez was on the back
of the motorcycle during the robbery. The trial court admitted the tape and the
testimony as prior inconsistent statements. (Evid. Code, § 1235.)
A witness’s prior statement that is inconsistent with his or her testimony is
admissible so long as the witness is given the opportunity to explain or deny the
statement. (Evid. Code, §§ 770, 1235.) Defendant complains that the trial court
failed to make a factual finding that Ontiveros’s testimony was inconsistent with
his prior statement, a prerequisite for the admission of those statements. No such
explicit finding is required. “A ruling on the admissibility of evidence implies
whatever finding of fact is prerequisite thereto; a separate or formal finding is
unnecessary unless required by statute.” (Evid. Code, § 402, subd. (c); see People
v. Pinholster (1992) 1 Cal.4th 865, 935.) Furthermore, Ontiveros’s insistence that
he never told anyone that defendant had admitted being involved in the robbery
was plainly inconsistent with his prior statements to the officer.
2. Sylvia Lopez Ontiveros
Defendant similarly challenges the admission of prior statements of Sylvia
Lopez Ontiveros, Santiago’s former wife, which also were admitted as prior
inconsistent statements. Sylvia Ontiveros initially testified that she did not
remember having a conversation with defendant concerning a robbery or murder.
Subsequently, she denied that he ever had told her he was going to kill someone.
Ontiveros recalled speaking to a police officer in March of 1979, and she recalled
testifying at the preliminary hearing in 1979. But she stated she did not remember
80
what she testified about, and did not remember testifying that defendant had told
her he had killed somebody. She did remember being in the district attorney’s
office during the last year and listening to a tape recording in which she was
speaking to a man about defendant, but stated she did not remember many of the
things she said on the recording. She did, however, admit that she might have said
on the recording that defendant had killed the gas station attendant because the
man was going to testify against him. She testified she did not want to be in court
and admitted that when she was called to testify in a previous proceeding in the
same case, she failed to appear and the police had to bring her to court.
After Ontiveros read a copy of her prior preliminary hearing testimony, she
testified that she still did not remember her testimony or the conversations with
defendant to which she had testified. She said she blanked things out because she
did not want to think about them. Over defense objection, the prosecutor was
permitted to have a portion of her preliminary examination testimony read to the
jury. That testimony disclosed that defendant had told her he had killed someone
who had identified him in a robbery, in order to eliminate the witness. She also
testified at the preliminary hearing that, prior to the murder, she had overheard
defendant tell her husband that he was thinking of getting rid of the witness
because the witness had identified him. Evidence of statements made by
Ontiveros during a police interview also were admitted over a hearsay objection.
In the interview, she stated that defendant had told her, prior to the murder, that he
wanted to get rid of the victim. She recounted that he later had told her he had
shot the victim and had told “another guy” to “finish him off.” Defendant also
told her he felt that if he eliminated the victim, the police would not be able to
press charges against him.
Defendant argues that the trial court failed to make a finding that
Ontiveros’s prior statements were inconsistent with her testimony. “Normally, the
81
testimony of a witness that he or she does not remember an event is not
inconsistent with that witness’s prior statement describing the event. (People v.
Green (1971) 3 Cal.3d 981, 988.) However, . . . [w]hen a witness’s claim of lack
of memory amounts to deliberate evasion, inconsistency is implied. (Id. at pp.
988-989.) As long as there is a reasonable basis in the record for concluding that
the witness’s ‘I don’t remember’ statements are evasive and untruthful, admission
of his or her prior statements is proper. (People v. O’Quinn (1980) 109
Cal.App.3d 219, 225.)” (People v. Johnson (1992) 3 Cal.4th 1183, 1219.) The
requisite finding is implied from the trial court’s ruling. (Evid. Code, § 402, subd.
(c).)
Although Ontiveros consistently denied at trial being able to remember
anything that defendant had told her, what she had told the police, or her prior
testimony, the record provides a reasonable basis to conclude she was being
evasive. (See People v. Coffman & Marlow (2004) 34 Cal. 4th 1, 78.) She had
been a friend of defendant’s and admitted she was reluctant to testify and had
failed to appear at a previous hearing. She claimed that even reading her prior
testimony in full and listening to a tape recording of her police interview did not
refresh her recollection.
I. Request to Enter Insanity Plea
Defendant asserts the trial court erred in refusing to permit him to enter an
insanity plea late in the trial. On August 30, 1989, during the defense surrebuttal,
counsel made a motion to permit defendant to enter an insanity plea, based upon
recent discussions counsel had had with defense experts. To establish good cause
for a belated entry of the plea, defense counsel explained that until July 31, 1989,
he had not received Dr. Morganthaler’s report relating that defendant suffered
from brain damage. That report caused him to reconsider the issue of sanity.
Thereafter, counsel continued, he asked Dr. Evans and Dr. Rosenthal their
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opinions concerning defendant’s sanity, and both indicated that defendant met the
test for insanity established in People v. Drew (1978) 22 Cal.3d 333 (Drew).20
The trial court denied the motion, concluding that defense counsel had not
established good cause for the delay in seeking to enter an insanity plea.
The trial court’s ruling on the issue of good cause is reviewed for abuse of
discretion. (People v. Monteil (1993) 5 Cal.4th 877, 923.) We find no such abuse.
As we have noted, the Drew test for insanity is very similar to the defense of
diminished capacity. (People v. Cruz (1980) 26 Cal.3d 233, 251; People v.
Wetmore (1978) 22 Cal.3d 318, 330-331.) Under the Drew test, a person is legally
insane if “as a result of mental disease or defect he lacks substantial capacity either
to appreciate the criminality [wrongfulness] of his conduct or to conform his
conduct to the requirements of law.” (Drew, supra, 22 Cal.3d at p. 345.) Defense
20
The murder was committed in early September of 1978, shortly before this
court, in People v. Drew, supra, 22 Cal.3d 333 (filed Sept. 26, 1978), rejected the
long-standing M’Naghten test for insanity in favor of the test proposed by the
American Law Institute. Subsequently, in 1982, Proposition 8 was adopted by the
voters, reinstating the M’Naghten test for crimes committed after the effective date
of that initiative measure. (See People v. Skinner (1985) 39 Cal.3d 765, 768
[Proposition 8 reinstated the M’Naghten test for insanity]; People v. Smith (1983)
34 Cal.3d 251, 263 [Proposition 8 does not apply to crimes committed before June
9, 1982].) Defendant contends that the Drew test is applicable to his case because
the crimes occurred before the effective date of Proposition 8. The Attorney
General contends that the M’Naghten test applies because the crimes occurred
before the Drew decision. The Attorney General contends that the Drew test
applies only to those crimes that occurred after the Drew decision but before the
reinstatement of the M’Naghten rule in Proposition 8. (See People v. Visciotti
(1992) 2 Cal. 4th 1, 62 [requirement that intent to kill be proved as element of
felony-murder special circumstance applies only to offenses committed on or after
the date of the decision in Carlos v. Superior Court (1983) 35 Cal.3d 131, which
adopted the intent requirement, and before the date of the decision in People v.
Anderson (1987) 43 Cal.3d 1104, which overruled Carlos].) In view of our
conclusion that the trial court’s denial of defendant’s motion to enter an insanity
plea, if error, was harmless, we need not resolve this issue.
83
counsel had fully prepared a diminished capacity defense and therefore should
have been well aware of the possibility of an insanity defense.
Furthermore, if there was error it was harmless. The jury heard an
extensive presentation of evidence regarding defendant’s mental state at the time
of the crimes. Indeed, defense counsel told the trial court that if an insanity plea
were permitted, he would present very little additional evidence; an insanity trial
would focus upon specific questions related to the standard for insanity and the
experts’ opinions on that subject. Accordingly, we discern no reasonable
probability that the jury would have accepted a defense of insanity based upon its
consideration of essentially the same evidence that it considered on the very
similar issue of diminished capacity. (See People v. Cruz, supra, 26 Cal.3d at p.
252 [finding no prejudice from failure to instruct on the Drew test for insanity
rather than the stricter M’Naghten test, because in rejecting the diminished
capacity defense “the jury necessarily rejected the evidence that might support a
verdict that defendant not only had diminished capacity but was legally
insane”].)21
J. Rebuttal Testimony of Dr. Coleman
Defendant contends that the trial court erred in admitting the rebuttal
testimony of Dr. Lee Coleman because that evidence encouraged the jury to
nullify the diminished capacity defense and to ignore defendant’s mental state and
convict him based upon his acts alone, and because that testimony was irrelevant
and inherently prejudicial, and denied him due process.
21
Because we conclude that the court’s denial of defendant’s motion to
permit entry of an insanity plea was not prejudicial, defendant’s claim that his
counsel rendered ineffective assistance in failing to investigate and present such a
defense in a timely manner must fail.
84
Defendant’s claim was forfeited by counsel’s failure to object in the trial
court. Defense counsel did object to Dr. Coleman’s giving a general opinion on
the reliability of testimony from psychiatrists and psychologists. The court agreed
that his testimony should be directed to the expert testimony given in this case,
and sustained objections when Dr. Coleman appeared to be giving a general
opinion concerning psychological evidence not specifically related to the present
case. But defense counsel did not object to Dr. Coleman’s giving a specific
opinion concerning the reliability of the particular methods used by the defense
experts or their conclusions concerning defendant’s mental state. In the course of
his testimony, Dr. Coleman sometimes explained his opinions on particular
matters by reference to his more general views that psychological methods lack
reliability and relevance in the context of legal proceedings, but defense counsel
did not object to this testimony.
Furthermore, even if defense counsel had objected on the grounds now
urged by defendant, we would find no error. In several cases, we have upheld the
admission of testimony by Dr. Coleman similar to the testimony he gave at
defendant’s trial. (See, e.g., People v. Smithey (1999) 20 Cal.4th 936, 965-969;
People v. Clark, supra, 5 Cal.4th at p. 1019; People v. Danielson (1991) 3 Cal. 4th
691, 728-731.) In Smithey, we fully considered and rejected the arguments
defendant raises here. We find nothing in the present case to distinguish it from
these prior decisions, nor do we find any reason to reconsider our previous
conclusions related to such testimony.
K. Jury Instructions
1.
Failure
to instruct on theft as a lesser included offense of
robbery
Defendant contends the trial court erred in failing to instruct the jury on the
lesser offense of theft regarding the September robbery. Defendant argues there
85
was substantial evidence from which the jury could have concluded that the intent
to steal from the victim was not formed until after the murder, making the offense
theft rather than robbery.22 We agree, and conclude this error requires reversal of
defendant’s conviction for the September robbery (count three) and the robbery
special circumstance finding.
Theft is a necessarily included offense of robbery. (People v. Ramkeesoon
(1985) 39 Cal.3d 346, 351.) “It is well settled that the trial court is obligated to
instruct on necessarily included offenses ― even without a request ― when the
evidence raises a question as to whether all of the elements of the charged offense
are present and there is evidence that would justify a conviction of such a lesser
offense.” (Id. at p. 351.) If there is evidence to support a finding that the
defendant did not form the intent to steal until after the killing, the court should
instruct on its own motion on the lesser included offense of theft. (People v.
Webster (1991) 54 Cal.3d 411, 443-444.) In Webster, the defendant testified that
he decided to take the victim’s property only after he had struggled with and
stabbed the victim. We stated that although he was not entitled to a “pinpoint”
instruction on after-formed intent in the absence of a request, he was entitled to an
22
Defendant also argues that the trial court was required to instruct on
conspiracy to commit theft, because that offense is necessarily included in
robbery, and the court instructed on conspiracy to commit robbery. (See People v.
Horn (1974) 12 Cal.3d 290, 297; People v. Fenenbock (1996) 46 Cal.App.4th
1688, 1706 [court must instruct on any lesser offenses “which the jury could
reasonably find to be the true objects of the conspiracy”].) The conspiracy
instruction was given as a possible basis for finding defendant vicariously liable
for offenses committed in furtherance of the conspiracy. Because conspiracy to
commit robbery was not a charged offense, there was no need for instructions on
lesser included offenses. Furthermore, defendant points to no evidence that
reasonably would have supported a jury finding that defendant engaged in
conspiracy to commit theft but not conspiracy to commit robbery.
86
instruction on theft as a lesser included offense of robbery (which he received).
(Ibid.)
The evidence in defendant’s case warranted an instruction on theft as a
lesser included offense of robbery. The prosecution’s theory was that defendant
stole the victim’s boots and his money shortly before or after the killing.23 The
evidence presented by the prosecution, however, overwhelmingly supported the
conclusion that the primary motive for the killing was to prevent the victim from
testifying that defendant committed the August gas station robbery. The
prosecution’s witnesses testified that defendant had stated before the killing that
he wanted to kill the victim out of revenge and to prevent his testimony, but there
was no reference to robbing him. None of the evidence related to the admissions
made by defendant after the killing mentioned any intent to steal the victim’s
property. The only reference to a taking in these admissions was defendant’s
comment that Jesse Perez had stolen the victim’s boots. Although the jury could
have concluded, on this evidence, that defendant killed the victim both with the
intent to eliminate him as a witness and to steal his property, it instead could have
readily concluded that the evidence was insufficient to prove that any intent to
steal was formed before the killing. Under these circumstances, the trial court
should have instructed the jury on the lesser included offense of theft.
23
The prosecution also alleged that defendant took a tapestry that had been
hanging in the gas station. On appeal, however, the Attorney General does not
argue that the evidence was sufficient to support a conviction for robbery related
to the taking of the tapestry, and we agree with this apparent concession.
Evidence was presented that, three or four days after Mr. Flores disappeared, his
manager noticed the tapestry was missing. However, the gas station had been
open during this period and there was no evidence concerning how long the
tapestry was missing, nor any evidence that defendant or any of his alleged
accomplices had the tapestry in their possession.
87
An erroneous failure to instruct on a lesser included offense requires
reversal of a conviction if, taking into account the entire record, it appears
“ ‘reasonably probable’ ” the defendant would have obtained a more favorable
outcome had the error not occurred. (People v. Breverman (1998) 19 Cal.4th 142,
178; People v. Watson (1956) 46 Cal.2d 818, 836.) In defendant’s case, there was
strong, explicit evidence that defendant’s purpose in killing the victim was to
eliminate him as a witness to the August robbery, and the jury found true the
witness-killing special circumstance. On the other hand, although the jury could
have inferred that defendant formed the intent to rob before the killing, the
evidence supporting such an inference was weak. Under these circumstances, it
seems reasonably likely the jury would have found defendant guilty of theft rather
than robbery had it been presented with that alternative. Therefore, we must
reverse defendant’s conviction for the September robbery and set aside the true
finding on the robbery special circumstance.
Defendant argues that reversal of his murder conviction also is required,
because the jury could have relied upon the theory of felony murder committed
during a robbery to convict him of first degree murder. We disagree. The jury’s
true finding on the witness-killing special circumstance demonstrates that it found
the murder to be deliberate and premeditated. (See former § 190.2, subd. (c)(2),
added by Stats. 1977, ch. 316, § 9, pp. 1257-1258 [witness-killing special
circumstance requires willful, deliberate, and premeditated killing].) Accordingly,
we may reasonably conclude the jury would have found defendant guilty of first
degree premeditated murder even had it concluded he committed theft rather than
robbery. (Compare Ramkeesoon, supra, 39 Cal.3d at p. 352, fn. 2 [failure to
instruct on theft as lesser included offense of robbery required reversal of the
defendant’s first degree murder conviction because court had “no way of knowing
88
whether the jury relied on [a felony-murder] theory or on premeditation and
deliberation”].)
Defendant further argues that reversal of the robbery special circumstance
requires reversal of his death sentence. We disagree. The jury’s death sentence is
supported by the witness-killing special circumstance. Under circumstances
similar to those of this case, we held the reversal of a robbery conviction and the
setting aside of a robbery special circumstance finding not to require reversal of
the death penalty imposed in People v. Kelly (1992) 1 Cal.4th 495, 551. In
defendant’s case, as in Kelly, “if the jury found defendant first intended to steal the
[victim’s property] after death, but nevertheless erroneously convicted him of
robbery, it would not have given significant weight to that conviction or to the
robbery special circumstance.” (Kelly, supra, 1 Cal.4th at p. 551; see Brown v.
Sanders (2006) 546 U.S. ___ [invalidation of two special circumstances did not
render death sentence unconstitutional when other, valid special circumstances
rendered the defendant eligible for the death sentence, and evidence admitted to
establish the invalid circumstances nevertheless was admissible and properly
considered by the jury.) We find no reasonable possibility that the jury would have
reached a different penalty verdict had it not considered the robbery special
circumstance.24
2. Definition of malice
Defendant complains that the jury instruction on malice defined that word
as “intent to kill,” without explaining that the concept of malice (at the time of
defendant’s offenses) also included the ability to comprehend the duty to comply
24
In light of these conclusions, we do not address defendant’s other claims
related to the September robbery charge.
89
with the law and the ability to act in accordance with that duty. (See People v.
Saille (1991) 54 Cal.3d 1103, 110-1111; People v. Poddar (1974) 10 Cal.3d 750,
758; People v. Conley (1966) 64 Cal.2d 310, 322.) We conclude that the
instructions, taken as a whole, fully conveyed these requirements.
The jury in the present case was told that murder requires proof of malice,
and that “malice is express when there is manifested an intention unlawfully to kill
a human being.” (CALJIC No. 8.11.) In instructing the jury on the lesser offense
of voluntary manslaughter, the court explained: “There is no malice aforethought
if the evidence shows that due to diminished capacity caused by mental illness,
mental defect, or intoxication, the defendant did not have the capacity to form the
mental state constituting malice aforethought, even though the killing was
intentional, voluntary, deliberate, and unprovoked.” (CALJIC No. 8.41.) The jury
further was told that if it found that defendant’s mental capacity was substantially
reduced at the time of the offense, “you must consider what effect, if any, this
diminished mental capacity had on the defendant’s ability to form any of the
specific mental states that are essential elements of murder . . . . [I]f you find the
defendant’s mental capacity was diminished to the extent that you have a
reasonable doubt whether he was able to form the mental state constituting express
malice aforethought, you cannot find him guilty of murder . . . . If you have a
reasonable doubt whether he was able to form an intention unlawfully to kill a
human being, or whether he was aware of the duty imposed on him not to commit
acts which involve the risk of grave injury or death, or whether he did act despite
that awareness, you cannot find that he harbored express malice.” (CALJIC
No. 8.77.)
We reject defendant’s argument that the jury, by focusing upon the initial
definition of express malice, might have concluded that defendant was guilty of
murder as soon as it concluded he intended to kill, without further considering
90
whether diminished capacity negated malice. The jury was instructed: “Do not
single out any particular sentence or any individual point or instruction and ignore
the others. Consider the instructions as a whole and each in light of all the others.”
We presume the jury followed these instructions. (See People v. Sanchez (2001)
26 Cal.4th 834.)
3. Failure to instruct on diminished capacity in relation to
uncharged conspiracy and special circumstances
At the prosecution’s request, the jury was instructed on the uncharged
crime of conspiracy and on vicarious liability for a killing committed in
furtherance of a conspiracy to commit a robbery or kidnapping. Defendant
contends the trial court erred in failing to instruct, on its own motion, that the
defense of diminished capacity applied to the mental state required for conspiracy,
and he claims this error requires reversal of his conviction for murder and the
September robbery.
Even assuming the instructions did not adequately cover the applicability of
diminished capacity to the theory of conspiracy, we agree with the Attorney
General’s argument that any error was harmless. The jury’s verdicts on the special
circumstance and firearm allegations demonstrate that it did not rely upon a theory
of vicarious liability. The jury was instructed that before it could find the special
circumstance allegations to be true, it had to find that defendant was “personally
present during the commission of the act or acts causing death” and that he
“physically aided or committed the act or acts causing death.” (See former
§ 190.2, subd. (c), added by Stats. 1977, ch. 316, § 9, p. 1257.) The jury was
instructed that before it could find the allegations that defendant personally used a
firearm to be true, it had to find defendant “personally used a firearm in the
commission of” each felony. The jury found true the alleged special
circumstances, as well as the personal-firearm-use allegations as to all counts —
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murder, kidnapping, and robbery. Because the jury found that defendant
personally had participated in the robbery and in the acts causing death, any
defects in the instructions pertaining to vicarious liability for crimes arising out of
a conspiracy could not have affected its verdicts.
Defendant similarly contends the trial court erred in failing to instruct that
the defense of diminished capacity applied to the mental states required for the
special circumstance allegations. Although the instructions on the special
circumstances did not specifically delineate how the defense of diminished
capacity related to the particular mental states required to prove those allegations,
the jury was generally instructed that for both the crime of murder and the special
circumstances alleged, “there must exist a union or joint operation of act or
conduct and a certain specific intent in the mind of the perpetrator. Unless such
specific intent exists the crime or allegation to which it relates is not committed.”
(CALJIC No. 3.31.) Furthermore, the jury was instructed that intent is shown not
only by a statement of intent and the circumstances surrounding the act, but also
by “the sound mind and discretion of the person committing the act.” (CALJIC
No. 3.34.) Finally, even if these instructions were inadequate in some way, the
jury’s rejection of the defense of diminished capacity in relation to the murder
charge demonstrates that any error was harmless.
4. Refusal of instruction that voluntary intoxication may
negate mental state of aider and abettor
The defense proposed, and the trial court rejected, an instruction that the
jury could consider the effect of intoxication on the “intent or purpose either of
committing, or of encouraging or facilitating the commission of, the offense.”
Defendant contends the trial court erred in refusing this instruction because the
jury was not otherwise informed that it could consider the effects of intoxication
92
on the mental state required for liability as an aider and abettor. He asserts this
alleged error requires reversal of his conviction for murder.
We find no error. Defendant’s jury was instructed that it could consider the
effects of intoxication on “defendant’s ability to form any of the specific mental
states that are essential elements of murder” (CALJIC No. 8.77) and that it should
consider “his state of intoxication in determining if the defendant had [the]
specific intent or mental state” required for murder. (CALJIC No. 4.21.) The jury
was informed that liability as an aider and abettor required that defendant act
“with the intent or purpose of committing, encouraging, or facilitating the
commission of the crime.” (CALJIC No. 3.01.) Considering the instructions as a
whole, a reasonable juror would have understood that the intent element required
in order to find defendant guilty of the crime of murder under the aiding and
abetting instructions was a “specific intent or mental state” to which defendant’s
state of intoxication was relevant. (See People v. Castillo (1997) 16 Cal.4th 1009,
1016-1017 [a jury that was instructed to consider evidence of intoxication in
determining whether the defendant possessed the required specific intent or mental
state at the time of the commission of the crime would have reasonably understood
deliberation and premeditation to be “mental states” for which it should consider
the evidence of intoxication].)
Furthermore, even if the instructions did not adequately address the
relevance of intoxication to aider and abettor liability, there was no prejudice. As
discussed above, the jury’s findings on the special circumstances and the firearm-
use allegations demonstrate that it did not rely upon a theory of accomplice
liability to convict defendant of murder.
5. Refusal of proposed pinpoint instructions
Defendant asserts that the trial court erred in refusing to give instructions,
requested by defendant, that he could not be convicted upon “mere suspicion” and
93
that mere opportunity to commit the crime is insufficient proof of guilt. These
proposed instructions are restatements of the requirement that guilt be proved
beyond a reasonable doubt, a requirement that was fully explained to the jury in
other instructions. Therefore, the trial court did not err in refusing them.
(People v. Wright (1988) 45 Cal.3d 1126, 1134.) 25
Nor did the court err in refusing an instruction that directed the jury to
consider, for the purpose of determining whether there was reasonable doubt as to
defendant’s guilt, evidence that another person had the motive or opportunity to
commit the crime. A defendant is entitled, upon request, to a nonargumentative
instruction that pinpoints his or her theory of the case. (People v. Wright, supra,
45 Cal.3d 1126, 1135-1136.) An instruction that directs the jury to “ ‘consider’ ”
certain evidence is properly refused as argumentative. (Id. at p. 1135.) “In a
proper instruction, ‘[w]hat is pinpointed is not specific evidence as such, but the
theory of the defendant’s case.’ ” (Id. at p. 1137, quoting People v. Adrian (1982)
135 Cal.App.3d 335, 338.)
Defendant also requested that the jury be instructed that if evidence tending
to prove that a party other than defendant committed the crime raises a reasonable
doubt as to defendant’s guilt, the jury must find him not guilty. This instruction
was arguably an appropriate “pinpoint” instruction of the type that focuses upon
the defendant’s theory of the case and should be given upon request. (See People
v. Wright, supra, 45 Cal.3d at p. 1137-1138.) But even if the trial court erred in
refusing it, any error was harmless. The jury was instructed on the prosecution’s
burden of proving guilt beyond a reasonable doubt and was instructed specifically
25
For the same reason, we also reject defendant’s argument that the court
erred in failing to instruct the jury, on its own motion, that the presence of motive
and opportunity, without more, is insufficient to establish identity.
94
that if it entertained a doubt concerning whether defendant was present at the time
the crime was committed, it would have to find him not guilty. The jury also was
instructed that to prove the witness-killing special circumstance, the prosecution
had to prove that defendant physically aided or committed the act or acts causing
death. These instructions adequately addressed the prosecution’s burden of
proving beyond a reasonable doubt that defendant perpetrated the crimes charged.
(See People v. Adrian, supra, 135 Cal.App.3d at p. 342 [refusal of pinpoint
instruction on defense claim of self defense was harmless where other instructions
adequately conveyed that the prosecution had the burden of disproving the defense
beyond a reasonable doubt]; People v. Gomez (1972) 24 Cal.App.3d 486 [refusal
of instruction on reasonable doubt regarding accuracy of identification was
harmless where instruction on alibi called to the jury’s attention the necessity of
finding beyond a reasonable doubt that the defendant was present when the
offense was committed].)
6. Corpus delicti instruction
The corpus delicti rule requires some evidence that a crime occurred,
independent of the defendant’s own statements. (People v. Alvarez (2002) 27
Cal.4th 1161,1181.) Defendant contends the trial court erred by instructing the
jury on the corpus delicti rule in the language of CALJIC No. 2.72. This
instruction required that there must be “some proof” of each element of the crime
independent of defendant’s extrajudicial admissions. Defendant asserts that the
instruction should have required the jury to find proof of each element of the crime
to a “reasonable probability.” The instruction given is consistent with the law.
“[T]he modicum of necessary independent evidence of the corpus delicti, and thus
the jury’s duty to find such independent proof, is not great. The independent
evidence may be circumstantial, and need only be a ‘a slight or prima facie
showing’ permitting an inference of injury, loss, or harm from a criminal agency,
95
after which the defendant’s statements may be considered to strengthen the case
on all issues.” (People v. Alvarez, supra, 27 Cal.4th at p. 1181.) Defendant cites
no authority supporting his contention that the jury must be instructed on a
“reasonable probability” standard.
Defendant also contends the trial court erred in instructing that identity is
not an element of the crime that must be established independent of defendant’s
extrajudicial admissions. Defendant asks this court to declare, as a judicial rule of
criminal procedure or as a matter of due process, that the corpus delicti rule
applies to proof of identity. Defendant provides no sound reason for this court to
depart from the long-established principle that the corpus delicti rule does not
require independent proof that the defendant is the perpetrator of the crime. (See,
e.g., People v. Jones (1898) 123 Cal. 65, 68 [“[I]t is not necessary that the
evidence of the corpus delicti should itself connect the defendant with its
perpetration”].) The principal purpose of the corpus delicti rule is to ensure that a
defendant is not convicted of a crime that never occurred. (People v. Carpenter
(1997) 15 Cal.4th 312, 394; see People v. Jennings, supra, 53 Cal.3d 334, 368.)
That purpose is fulfilled by the admission of evidence sufficient to establish that
the crime occurred.
L. Proof of Corpus Delicti
Defendant contends his convictions for the August robbery and for
kidnapping must be reversed because the prosecution failed to establish the corpus
delicti of these crimes independent of defendant’s extrajudicial statements. As
noted above, however, the quantum of evidence required is not great, and “need
only be a ‘a slight or prima facie showing’ permitting an inference of injury, loss,
or harm from a criminal agency, after which the defendant’s statements may be
considered to strengthen the case on all issues.” (People v. Alvarez, supra, 27
Cal.4th at p. 1181.) “The inference [that a crime has been committed] need not be
96
‘the only, or even the most compelling, one . . . [but need only be] a reasonable
one.’ ” (People v. Jones (1998) 17 Cal.4th 279, 301-302, quoting People v.
Jennings, supra, 53 Cal.3d 334, 367.)
Under these standards, there was sufficient evidence to establish the corpus
delicti of the August robbery and of the kidnapping. The testimony of victim
Flores’ supervisor that Flores had told him he had been robbed was, as discussed
above, admissible, and it was sufficient to establish the corpus delicti of robbery.
The circumstances surrounding the murder of Mr. Flores ― as noted, he
disappeared from the gas station during the middle of his shift, leaving it open and
unattended, and his body was discovered later many miles away — were sufficient
to establish a reasonable inference that he had been kidnapped.
M. Sufficiency of Evidence of First Degree Murder
Defendant contends his murder conviction must be reversed because the
evidence was insufficient to prove malice or deliberation and premeditation. He
argues the evidence was insufficient because the prosecution provided no response
to the testimony of the defense experts that, due to the effect on his brain of PCP
use, defendant lacked the capacity to form these mental states. He contends that
the testimony of the prosecution expert Dr. Coleman that the requisite mental state
could be inferred from defendant’s acts was insufficient to rebut the testimony of
the defense experts.
In resolving such a claim, a reviewing court must determine “whether, after
viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” (Jackson v. Virginia (1979) 443 U.S. 307, 319; see also People
v. Marshall (1997) 15 Cal.4th 1, 34.) Contrary to defendant’s contention, the jury
was not required to accept the testimony of the defense experts. “The value of an
expert’s opinion depends upon the quality of the material on which the opinion is
97
based and the reasoning used to arrive at the conclusion.” (Marshall, supra, 15
Cal.4th at pp. 31-32.) The jury could have found the defense experts’ reasoning to
be flawed, or could have found an insufficient basis for concluding that defendant
was under the influence of PCP at the time of the crimes.
The jury also could have concluded that the defense experts’ opinions
regarding defendant’s state of mind were inconsistent with the circumstances of
the offense as described in defendant’s admissions — which indicated that
defendant planned and carried out a plot to kidnap the victim, transport him to a
remote location, and kill him to prevent him from testifying — and with his
conduct in fleeing the state after the crime. Those circumstances are certainly
sufficient to support the jury’s conclusion that defendant was capable of forming,
and did form, the intent to kill and that the murder was deliberate and
premeditated.
N. Sufficiency of Evidence of Witness-killing Special
Circumstance
Defendant contends the evidence is insufficient to support the jury’s finding
that “the victim was a witness to a crime who was intentionally killed for the
purpose of preventing his testimony in any criminal proceeding.” (Former
§ 190.2, subd. (c)(2), added by Stats. 1977, ch. 316, § 9, p. 1258.) He asserts the
evidence, instead, supports the conclusion that the killing was for the purpose of
revenge or to prevent defendant’s arrest.
We uphold the jury’s verdict if there is any substantial evidence to support
it. (People v. Johnson (1980) 26 Cal.3d 557, 578.) Sylvia Ontiveros specifically
testified that defendant said that if he “got rid of the witness, he wouldn’t have a
witness to testify against him.” The circumstances of the offense also support the
conclusion that the victim was killed to prevent his testimony. At the time of the
killing, defendant was aware that he had been identified and that the police were
98
seeking to arrest him. Defendant contends other evidence suggests that
defendant’s intent was to exact revenge or to prevent his arrest ― he stresses his
threat to the victim not to “narc” on him, defendant’s comment that he killed the
victim even though the victim did not recognize defendant (“just in case”), his
statement that he wanted to kill the victim for revenge, and his statement that he
killed because he did not want to get caught. These statements, however, are not
inconsistent with the conclusion that defendant intended to prevent the witness
from testifying. (See People v. Saunders (1990) 51 Cal.3d 471, 520 [evidence was
sufficient to support witness-killing special circumstance when, shortly after a
robbery attempt, the defendant expressed concern that one of the victims could
identify him].) Furthermore, the witness-killing special circumstance is not
inapplicable merely because the defendant might have had more than one reason
to kill. (Id. at p. 519.)
Defendant also contends the witness-killing special circumstance is
inapplicable to his case because the killing of Flores was part of the August gas
station robbery. The witness-killing special circumstance applies only if “the
killing was not committed during the commission . . . of the crime . . . .” (Former
§ 190.2, subd. (c)(2), added by Stats. 1977, ch. 316, § 9, p. 1258.) The witness-
killing special circumstance applies here because the August 26 robbery was long
completed at the time of the murder, which took place no sooner than
September 5. The case of People v. Fields, supra, 35 Cal.3d 329, on which
defendant relies, does not support his contention. In Fields, we concluded that the
robbery victim was killed during the commission of a robbery even though the
killing occurred several hours after the defendant had forced the victim to write
him a check. We noted that the defendant’s motive in killing the victim, to
prevent her from reporting the crime and to punish her for attempting to frustrate
the robbery, served to link the two crimes. (Id. at p. 368.) But we also pointed out
99
that “[s]uch motives would not enable a court to find a killing occurred during the
commission of a robbery if it took place days later and in a far distant locale.”
(Ibid.) In Fields, the murder was committed only a few hours after the robbery
and, importantly, during that period of time the defendant continued to have
“control over the victim, forcing her to remain at his house [where the robbery
took place] and then transporting her to the murder site.” (Ibid.) The facts of the
present case are entirely different. More than one week passed between the
robbery and the killing of the victim, and defendant did not have continuous
control over the victim during that period.
O. Constitutionality of Witness-killing Special Circumstance
Defendant contends that the witness-killing special circumstance is
unconstitutional under the Eighth and Fourteenth Amendments to the federal
Constitution because it fails to reasonably distinguish between persons who
deserve the death penalty and those who do not. In essence, defendant argues that
the witness-killing special circumstance under the 1977 death penalty law is
underinclusive because it applies only to witnesses in criminal, not juvenile
proceedings; it applies only to killings to prevent testimony, not to prevent a crime
report or arrest; and it applies only to killings to prevent future testimony, not
killings in retaliation for actual testimony. (Compare former § 190.2, subd. (c)(2)
with current § 190.2, subd. (a)(10) [special circumstance applicable to killing of a
witness to prevent or retaliate for testimony in a criminal or juvenile proceeding].)
To pass constitutional muster, a capital sentencing scheme must “genuinely
narrow the class of persons eligible for the death penalty and must reasonably
justify the imposition of a more severe sentence on the defendant compared to
others found guilty of murder.” (Zant v. Stephens (1988) 484 U.S. 231, 244.) The
witness-killing special circumstance serves this function by reasonably assigning
greater culpability to those who kill in order to prevent a witness from testifying.
100
Furthermore, the Legislature’s decision to single out for greater punishment those
who kill in order to prevent testimony at a criminal proceeding is not, as defendant
contends, entirely arbitrary. Because juveniles are not subject to the death penalty
and the consequences of juvenile proceedings generally are less severe than those
of a criminal prosecution, the Legislature reasonably could have concluded that
murders of witnesses in criminal proceedings posed a greater threat. It also could
have reasonably concluded that a murder to prevent future testimony should be
treated more seriously than a retaliatory killing because such a killing would
undermine the underlying criminal prosecution. A special circumstance is not
unconstitutional merely because it does not apply to every defendant who may be
otherwise deserving of the death penalty.
Alternatively, defendant argues that the witness-killing special
circumstance is unconstitutionally vague, because a jury might apply it more
broadly than the Legislature intended — for example, to a killing committed for
purposes of revenge or avoiding arrest. We find no merit in this argument. A
statute defining a special circumstance is not vague if the ordinary meaning of its
language adequately communicates the parameters of the statutory requirements.
(People v. Estrada (1995) 22 Cal.4th 568, 581.) The special circumstance applies
if the murder was “willful, deliberate, and premeditated” and if the victim was
“intentionally killed for the purpose of preventing his testimony in any criminal
proceeding.” (Former § 190.2, subd. (c)(2), added by Stats. 1977, ch. 316, § 9, p.
1258.) In People v. Saunders, supra, 51 Cal.3 471, the defendant argued that the
instructions that were given concerning the offense of dissuading a witness from
testifying confused the jury regarding the elements of the witness-killing special
circumstance. We stated that because the instruction on the witness-killing special
circumstance, which was given in the language of the statute, expressed its
meaning “in such a straightforward manner, we find the possibility that the jury
101
sustained the special circumstance without finding these explicit elements is quite
remote.” (Saunders, supra, 51 Cal.3d at p. 518.) Because the words in the
witness-killing special circumstance statute can be readily understood and applied,
it is not unconstitutionally vague.
Finally, defendant contends that the witness-killing special circumstance is
unconstitutional because it does not include a requirement that the defendant kill
with malice aforethought. The special circumstance requires that the defendant
physically aid or commit the act causing death and that the killing be intentional,
deliberate, and premeditated. (Former § 190.2, subd. (c)(2).) These elements
satisfy constitutional requirements. (See Cabana v. Bullock (1986) 474 U.S. 376,
386 [Eighth Amendment is satisfied so long as the defendant killed, attempted to
kill, or intended to kill]; People v. Anderson, supra, 43 Cal.3d 1104, 1140
[Constitution does not require that felony-murder special circumstance provide
that actual killer intended to kill].)
P. Prosecutor’s Closing Argument
Defendant contends the prosecutor committed misconduct in numerous
ways during his closing argument and rebuttal argument at the guilt phase, in
violation of California law and defendant’s right to a fair trial under the Fourteenth
Amendment to the United States Constitution and article I, sections 7 and 15 of
the California Constitution. A prosecutor’s conduct violates the federal
Constitution only when it is “ ‘ “so egregious that it infects the trial with such
unfairness as to make the conviction a denial of due process.” ’ ” (People v.
Gionis, supra, 9 Cal.4th 1196, 1214; People v. Espinoza, supra, 3 Cal.4th 806,
820.) A prosecutor’s conduct that does not rise to the level of a constitutional
violation will constitute misconduct under state law only if it involves “the use of
deceptive or reprehensible methods to attempt to persuade either the court or the
jury.” (Espinoza, supra, 3 Cal.4th at p. 820.) A prosecutor is given wide latitude
102
to vigorously argue his or her case and to make fair comment upon the evidence,
including reasonable inferences or deductions that may be drawn from the
evidence. (People v. Hill (1998) 17 Cal.4th 800, 819 (Hill).) Generally, a claim
of prosecutorial misconduct is preserved for appeal only if the defendant objects in
the trial court and requests an admonition, or if an admonition would not have
cured the prejudice caused by the prosecutor’s misconduct. (People v. Medina,
supra, 11 Cal.4th 694, 761; People v. Fiero (1991) 1 Cal.4th 173, 211; People v.
Ratliff (1986) 41 Cal.3d 675, 690.)
During the prosecutor’s argument, defendant moved for a mistrial based
upon three comments made by the prosecutor. Even if defendant has preserved
these claims despite his failure to request that the trial judge admonish the jury to
ignore them, we conclude that none of the comments amounted to misconduct
under state law; much less did they render the trial fundamentally unfair. (See
People v. Medina, supra, 11 Cal.4th at p. 761.) First, defendant contends the
prosecutor’s reference to the absence of remorse was an improper comment on
defendant’s failure to testify, in violation of Griffin v. California (1965) 380 U.S.
609. The prosecutor noted that defendant had bragged about the murder and
commented, “the quality of defendant’s remorse is notable only in its absence.”
After defense counsel unsuccessfully moved for a mistrial based on this statement,
the prosecutor explained to the jury why he had referred to defendant’s lack of
remorse, explaining that his point was a response to the defense’s theory that
defendant had bragged about the crimes to impress other persons but had not
actually committed them. The prosecutor’s argument was that defendant was
bragging about the crimes because he lacked remorse, “and that explains why he
conducted himself in the manner that he did.” There is no reasonable likelihood
that the jury would have understood these remarks as a comment upon defendant’s
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failure to testify. (See Medina, supra, 11 Cal.4th at p. 755; People v. Clair (1992)
2 Cal.4th 629, 662.)
Second, defendant argues that the prosecutor vouched for the credibility of
witness Jona Cardona by referring to facts outside the record. Responding to the
testimony of a defense witness who claimed to have had sex with Ms. Cardona
and heard her make remarks allegedly inconsistent with her trial testimony, the
prosecutor commented, “If he knew Jona in that way . . . why didn’t he know
about her tattoos?” This argument was based on Ms. Cardona’s testimony, not on
evidence outside the record. She denied knowing the witness, and stated: “He
would have seen [my tattoos] if I went to bed with him, he could tell you where
they were at. He wasn’t there with me in bed, or he could have told you about the
distinguishing marks, right?” Although that testimony was in the form of
rhetorical questions, it constituted evidence that Cardona had distinguishing
tattoos. In this context, the prosecutor’s comment was not improper.
Third, defendant complains the prosecutor attempted to bolster his own
credibility by informing the jury that he taught at a law school. Before explaining
the instructions on circumstantial evidence, the prosecutor mentioned that he
taught a law school class on evidence and that when he reads these instructions to
law students they often have difficulty understanding them. The prosecutor
explained he would help the jurors make sense of the instructions by breaking
them down. We find it inconceivable that this comment could have improperly
influenced the jury.
As to two additional instances of alleged misconduct to which defendant
objected at trial, the trial court admonished the jury, dispelling any possibility of
prejudice. First, defendant contends the prosecutor improperly argued that victim
Flores’s identification of defendant could be considered evidence of defendant’s
guilt of the August robbery. The prosecutor enumerated all of the circumstantial
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evidence against defendant related to the August robbery charge, as well as
defendant’s admissions. When the prosecutor mentioned that Flores had identified
one of the robbers in a photographic lineup, defense counsel objected. The trial
court reminded the jury that the victim identification was admitted only to show
motive for defendant’s actions to the extent that he became aware of the
identification, and that the evidence was not admitted to prove the truth of the
identification. Contrary to defendant’s contention, the prosecutor did not ignore
the court’s admonition; his comments after that point referred only to
circumstantial evidence demonstrating that defendant was told he had been
identified.
Second, defendant asserts that the prosecutor improperly stated that the
testimony of the defense experts was inconsistent. At trial, defense counsel
objected that the prosecutor had misstated the facts. The court admonished the
jury that if facts are misstated during argument, the jurors must rely on their
recollection or can have recourse to the reporter’s notes.
Defendant also cites numerous examples of alleged prosecutorial
misconduct to which he did not object at trial. As to these instances, the issue has
been forfeited. (People v. Medina, supra, 11 Cal.4th at p. 755.) Having reviewed
the entire argument of the prosecutor, we do not find his comments, even if they
were to be characterized as misconduct, to be so pervasive that an objection and
admonition would not have cured the ensuing harm. (See People v. Clair, supra,
at pp. 685-686; cf. People v. Bandhauer (1967) 66 Cal.2d 524, 530.) Although we
need not and do not address the merits of each of these various forfeited
subclaims, we note that the prosecutor did make some inappropriate comments
questioning defense counsel’s ethics. For example, the prosecutor stated that there
had been a “concerted effort in this case to introduce things for your consideration
105
that were introduced perhaps by inappropriate questions. I think you know what I
am referring to.” Such comments, however, were neither egregious nor pervasive.
Nor do we find any reason to believe that objections to any misconduct
would have been futile. This case is distinguishable from Hill, supra, 17 Cal.4th
800, in which we reviewed claims of misconduct despite defense counsel’s failure
to object to some of them because additional attempts to object “would have been
futile and counterproductive to his client.” (Id. at p. 821.) In Hill, we found that if
defense counsel had continued to object, he would have risked “repeatedly
provoking the trial court’s wrath, which took the form of comments before the jury
suggesting Blum was an obstructionist, delaying the trial with ‘meritless’
objections.” (Ibid.) In contrast, the trial judge in the present case ruled on defense
counsel’s objections with admirable patience and equanimity.
Q. Permitting Jurors to Think About the Case at Home
At the end of the first day of jury deliberations, the foreperson asked the
court if she could take the instructions home with her to read. The court told her
she could “as long as you don’t communicate any thought you may develop
concerning that with anyone else while you are separated.” Similarly, when
excusing the jury for the day, the court admonished the jurors that they could
continue to think about the case, but they could not communicate their thoughts to
anyone until they were back together for deliberations.
Defendant contends that permitting the foreperson to read instructions at
home and permitting all the jurors to think about the case after they separated
violated California statutory law as well as defendant’s right to a jury trial under
the Sixth and Fourteenth Amendments to the federal Constitution and article I,
sections 5, 15, and 16 of the California Constitution. We note, first, that the issue
has been forfeited because counsel failed to object in a timely manner. Defense
counsel did not object when the foreperson was told she could take the instructions
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home, but moved for a mistrial the following morning on the ground that jurors
may not be permitted to deliberate while separated. The court denied the motion,
explaining that the foreperson is required to guide the jurors through their
deliberations and that it would assist them if she were aware of the context of the
instructions they would cover during their deliberations. The court also noted that
defense counsel could have asked to speak to the court outside the presence of the
jury if he wished to object. At the end of the third day of deliberations, the
foreperson again asked to take the instructions home. The court asked all counsel
whether they had any objections, and none did. The court again cautioned the
foreperson not to discuss the instructions with anyone and admonished her not to
look up any words she did not understand.
Even had the issue not been forfeited, we would find no error. Defendant
equates thinking about the case with jury deliberations. Jurors must be
admonished not to form an opinion concerning the case or to discuss it with
anyone before it is submitted to them. (§ 1122.) Once the case has been
submitted to the jurors for decision, they may not deliberate except when all are
together. (§ 1128.) Although the deliberation process of course includes thinking,
defendant has failed to cite any authority suggesting that jurors must be directed
not to think about the case except during deliberations. A juror participates in the
deliberative process by “participat[ing] in discussions with fellow jurors by
listening to their views and by expressing his or her own views.” (People v.
Cleveland (2001) 25 Cal.4th 466, 485.) Indeed, it would be entirely unrealistic to
expect jurors not to think about the case during the trial and when at home. (See
U. S. v. Steele (9th Cir. 2002) 298 F.3d 906, 911 [noting that jurors who reached a
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verdict on Monday morning may have come “to a resolution during a weekend
when they individually pondered the evidence”].)26
Defendant also contends the trial court made comments that elevated the
status of the foreperson, thereby improperly increasing her influence over the other
jurors. On the third day of deliberations, the court told the jurors that they must
not remove anything from the jury room, including the instructions. The court
noted that the foreperson had been allowed to take the instructions home, “but that
is because of her status as foreperson . . . the foreperson has a need to be perhaps
better informed than anyone else as to where those instructions are located within
that packet.” No objection was made at trial to the court’s explanation, and in any
event we find no error. Contrary to defendant’s contention, the court’s comments
did not convey a message that the opinion of the foreperson was more important
than that of any other juror. The court merely explained that the foreperson should
be in a position to assist deliberations by locating particular instructions within the
large packet the jurors had been given.
III. PENALTY PHASE ISSUES
A.
Vindictive
Prosecution
Defendant asserts the prosecutor’s decision to pursue the death penalty in
his case was the result of vindictiveness — that is, to punish him for pursuing his
constitutional right to counsel and for having obtained a reversal of his previous
conviction and death sentence. Defendant did not preserve the issue because he
did not make any motion in the trial court based upon a theory of vindictive
26
For the same reasons, we reject defendant’s argument that the trial court
erred in admonishing the jurors at the penalty phase that they could continue to
think about the case when separated, but not discuss it with anyone.
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prosecution.27 “Absent proof of invidious or vindictive prosecution, as a general
matter a defendant who has been duly convicted of a capital crime under a
constitutional death penalty statute may not be heard to complain on appeal of the
prosecutor’s exercise of discretion in charging him with special circumstances and
seeking the death penalty.” (People v. Lucas (1995) 12 Cal.4th 415, 477.)
Because the trial court was not called upon to make a ruling, it did not conduct a
hearing on this matter and made no findings of fact.
Furthermore, an inference of vindictive prosecution is raised if, upon retrial
after a successful appeal, the prosecution increases the charges so that the
defendant faces a sentence potentially more severe than the sentence he or she
faced at the first trial. (See In re Bower (1985) 38 Cal.3d 865, 872-875.) In the
present case, however, the prosecution sought the same sentence upon retrial that
it did at the initial trial. The record thus contains no evidence supporting
defendant’s claim of vindictive prosecution.
B. Use of Evidence from First Trial
At the penalty phase, defense counsel sought a ruling that, should defendant
testify and state he was remorseful, the prosecutor would not be permitted to
question him about the circumstances of the crimes or use defendant’s prior
testimony for impeachment. The court declined to make such a ruling, and
27
During the jury selection process (but outside the presence of the jurors),
defense counsel stated on the record that the prosecution had declined to accept
defendant’s plea of guilty in exchange for a sentence of life imprisonment without
the possibility of parole. Defense counsel expressed his opinion that defendant
was being penalized because of the earlier judgment having been reversed, and
noted that at one point the prosecutor had indicated to him that accepting such a
settlement would cause adverse publicity. Defense counsel stated, however, that
he was mentioning these matters as “food for thought for the prosecution” and did
not make any motion.
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defense counsel indicated that as a result he would not call defendant as a witness.
Defendant contends the trial court’s ruling denied him his rights to effective
assistance of counsel and to testify in his own defense under the Fifth, Sixth, and
Fourteenth Amendments to the federal Constitution and article I, sections 7 and 15
of the California Constitution.
Defendant has failed to preserve this claim of error. It is well established
that the denial of a motion to exclude impeachment evidence is not reviewable on
appeal if the defendant subsequently declines to testify. (See Luce v. United States
(1984) 469 U.S. 38 (Luce) [denial of in limine motion to preclude impeachment of
the defendant with a prior conviction is not reviewable on appeal if the defendant
did not testify]; People v. Collins (1986) 42 Cal.3d 378, 383-388 (Collins)
[prospectively adopting the Luce rule].)
Defendant argues that the Luce rule does not apply, because defendant’s
prior testimony was constitutionally tainted and because evidence that he had
perjured himself in the prior trial would completely undermine his current
testimony regardless of its content. (See People v. Brown (1996) 42 Cal.App.4th
461, 468 [defendant need not testify in order to preserve his claim that trial court
erred in admitting for impeachment purposes a statement obtained in violation of
his right to counsel].) We are not persuaded. The rationale for the Luce rule
applies fully here. First, in order to determine the admissibility of defendant’s
prior testimony, the court must balance its probative value against its prejudicial
effect under Evidence Code section 352, an analysis that cannot be performed
unless the record discloses the content of the defendant’s testimony. (See Luce,
supra, 469 U.S. at p. 41; Collins, supra, 42 Cal.3d at p. 384.) Second, if the
defendant does not testify, any possible harm from the trial court’s ruling is wholly
speculative. The ruling might change in response to the actual content of the
defendant’s testimony, or the prosecution might choose not to use the evidence at
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issue. (See Luce, supra, 469 U.S. at p. 41; Collins, supra, 42 Cal.3d at p. 384.)
Third, if the trial court erred in its ruling, the appellate court could not
“intelligently weigh the prejudicial affect of that error.” (Collins, supra, 42 Cal.3d
at p. 384; Luce, supra, 469 U.S. at p. 42.) Here, defendant proposed to testify that
he was remorseful more than 10 years after the offense. On the present record, it
is impossible to evaluate what effect his false testimony many years earlier might
have had on such a defense.
Defendant additionally contends the prosecutor improperly used the
circumstance of defendant’s first trial and death sentence to rebut mitigating
evidence demonstrating remorse, consisting of his offer to plead guilty and accept
a life sentence. The record does not support this contention. The prosecutor
questioned some of the defense witnesses concerning whether defendant may have
offered to plead guilty in order to avoid the death penalty, rather than because he
felt remorse. There was nothing improper in this tactic. The prosecutor’s
questions constituted a reasonable response to the defense testimony and did not
focus on the results of the first trial.
C. Denial of New Jury for Penalty Phase
Defendant asserts the trial court erred in denying his motion to impanel a
new jury at the penalty phase. He contends this error violated both California law
and his rights to due process and a fair and impartial jury under the federal
Constitution and reduced the jury’s sense of responsibility for its decision, in
violation of Caldwell v. Mississippi (1985) 472 U.S. 320 (Caldwell). In a capital
case, the jury that decides guilt is required to decide the penalty “unless for good
cause shown the court discharges that jury in which case a new jury shall be
drawn.” (§ 190.4, subd. (c).) We review the trial court’s ruling for abuse of
discretion. (People v. Kraft (2000) 23 Cal.4th 978, 1069.)
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Defendant contends a new jury was required because the jury, having heard
during the guilt phase that defendant previously was sentenced to death, could not
impartially decide the penalty. We find no abuse of discretion. The court
instructed that defendant was being retried as the result of the decision by this
court that he did not receive a fair trial at his first trial, and that the jury was to
“disregard completely the result of that first trial in deciding upon a verdict in the
present trial.” We are not convinced it would be impossible for the jury to follow
such an instruction. In the penalty phase as in the guilt phase, the jurors heard all
the relevant evidence and were in a position to form their own conclusions based
upon that evidence. There is no reason to believe they would have felt compelled
to ignore the court’s instruction and defer to the verdict of another jury that
resulted from a prior trial.
Caldwell, supra, 472 U.S. 320, does not compel a different conclusion. In
Caldwell, the prosecutor urged the jury not to view its role as determining whether
the defendant would die, because the state Supreme Court would review the
sentence for correctness. The high court reversed the death sentence, holding that
such an argument creates a bias in favor of a death sentence and renders the jury
verdict unreliable. In a subsequent case somewhat analogous to the present one,
the high court concluded that the admission of evidence in a death penalty case
reflecting that the defendant had been convicted of a prior murder and sentenced
to death for that murder did not require reversal of the death judgment. (Romano
v. Oklahoma (1994) 512 U.S. 1 (Romano).) The court rejected the petitioner’s
argument that evidence indicating that he previously had been sentenced to death
in a different and unrelated case violated the holding of Caldwell, supra, by
diminishing the jury’s sense of responsibility for the sentencing decision. The
court in Romano reiterated that Caldwell simply requires that the jury not be
mislead into believing that the responsibility for the sentencing decision lies
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elsewhere. (Romano, supra, 512 U.S. at p. 8.) The court in Romano found
Caldwell inapplicable, because “the jury was not affirmatively misled regarding its
role in the sentencing process. The evidence at issue was neither false at the time
it was admitted, nor did it even pertain to the jury’s role in the sentencing
process.” (Id. at p. 9.)
In Romano, the high court recognized that evidence establishing that the
defendant previously had received a death sentence for another murder was not
relevant to the jury’s determination under state law. Nevertheless, the court
concluded that “if the jurors followed the trial court’s instructions, which we
presume they did [citation], this evidence should have had little ― if any — effect
on their deliberations. Those instructions clearly and properly described the
jurors’ paramount role in determining petitioner’s sentence . . . . In short, the
instructions did not offer the jurors any means by which to give effect to the
evidence of petitioner’s sentence in the [prior] murder . . . .” (Romano, supra, at
p. 13.) As in Romano, the jury instructions in the present case made clear the
jury’s responsibility to determine defendant’s penalty based upon the evidence
presented to it and did not offer the jurors any means by which to give effect to the
evidence of the prior proceedings.
D. Evidence of Other Violent Crimes
Defendant contends that the prosecutor’s notice of aggravating evidence
was deficient and, for that reason, the trial court should have excluded testimony
that defendant shot at the owner of the A & J Market during a robbery attempt on
March 6, 1979. Defendant relies on former section 190.3, which provided:
“Except for evidence in proof of the offense or special circumstances which
subject a defendant to the death penalty, no evidence may be presented by the
prosecution in aggravation unless notice of the evidence to be introduced has been
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given to the defendant within a reasonable period of time, as determined by the
court, prior to trial.” (Stats. 1977, ch. 316, § 11, p. 1259.)
In its notice of aggravating evidence, the prosecution stated it would
present evidence establishing that on or about March 6, 1979, “defendant did
commit an act of armed robbery while armed at the A & J Market . . . .”
Defendant argues the prosecutor was required to specify more precisely what the
evidence would be, including the testimony reflecting that defendant shot at the
owner. No such requirement exists. Notice is sufficient if it affords the defendant
a reasonable opportunity to prepare a defense. (People v. Mayfield (1997) 14
Cal.4th 668, 798.) “[T]he prosecutor is not prevented from introducing all the
circumstances of a duly noticed incident or transaction simply because each and
every circumstantial fact was not recited therein.” (People v. Pride (1992) 3
Cal.4th 195, 258.) We have no doubt the notice given was sufficient to permit
counsel to prepare a defense, particularly because testimony concerning the
shooting was presented at defendant’s first trial as part of the evidence of this
attempted robbery, and the record demonstrates that defense counsel was aware of
the circumstances of the incident. For the same reason, the prosecution’s notice
that it would offer evidence indicating that defendant had committed an armed
robbery of a gas station in Salt Lake City “on or about February 15, 1979” was
sufficient even though the evidence presented was of a robbery committed on
February 5, not February 15, of that year.
Defendant asserts the trial court erred in admitting the testimony of Floyd
Cowdell reflecting that defendant had admitted returning fire after he had been
fired upon after the attempted robbery of the A & J market. Defendant asserts the
testimony was improper because the prosecution failed to establish the corpus
delicti for any crime of assault or attempted murder. As noted above, the corpus
delicti rule requires some evidence that a crime occurred, independent of the
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defendant’s own statements. (People v. Alvarez, supra, 27 Cal.4th at p. 1181.) As
also noted above, however, the quantum of evidence required is not great, and
“need only be ‘a slight or prima facie showing’ permitting an inference of injury,
loss, or harm from a criminal agency, after which the defendant’s statements may
be considered to strengthen the case on all issues.” (Ibid.) Contrary to defendant’s
argument, the shooting, which took place as defendant was fleeing from the A & J
market, was part of the attempted robbery. Evidence of the corpus delicti of that
crime was established by the testimony of one of the victims, Alaire Fivas, who
witnessed the crime and testified that she heard a gun fire shortly after defendant
ran out of the store.
E. Exclusion of Mitigating and Rebuttal Evidence
Defendant challenges the trial court’s ruling on the admissibility of
numerous items of proposed mitigating or rebuttal evidence. We find no abuse of
discretion in these rulings. We have concluded previously that evidence of the
prison conditions for those sentenced to life imprisonment without the possibility
of parole is not constitutionally or statutorily relevant as a factor in mitigation.
(People v. Sakarias (2000) 22 Cal.4th 596; People v. Quartermain (1997) 16
Cal.4th 600, 632.) The trial court did not err in precluding evidence reflecting that
the prosecutor was not seeking the death penalty against defendant’s accomplices,
because the “sentence received by an accomplice is not constitutionally or
statutorily relevant as a factor in mitigation.” (People v. Bemore (2000) 22 Cal.4th
809, 857.)
Defendant was permitted to introduce evidence establishing that he had
attempted to plead guilty and accept punishment of life imprisonment without the
possibility of parole, but he contends the trial court erred in ruling that he could
not introduce evidence of the circumstances surrounding the plea negotiations,
including the trial court’s and the prosecutor’s willingness at one point to consider
115
a sentence of life imprisonment without the possibility of parole. The trial court
did not abuse its discretion in excluding such evidence. As we previously have
held, evidence of this sort does “not bear upon defendant’s character, prior record,
or the circumstances of his offense and thus, [does] not constitute mitigating
evidence.” (People v. Zapien (1993) 4 Cal.4th 929, 989.)
Nor did the trial court abuse its discretion in excluding George Perez’s
admission that he was “deeply involved” in the murder. Evidence of this
admission was cumulative, because the jury already had heard, during the guilt
phase, evidence demonstrating that George Perez and others were involved in the
murder. Perez’s admission was not relevant mitigating evidence, because it did
not address his level of culpability in comparison with that of defendant and was
not inconsistent with the prosecution’s theory that defendant was the leader of the
group and personally had shot and killed the victim.
F. Jury Instructions
1. Moral culpability
Defendant contends the trial court erred by instructing that a mitigating
factor is “one that [is] considered as extenuating or reducing the degree of moral
culpability of the defendant and which tends to support the imposition of a
sentence of life without possibility of parole.”28 Defendant argues that the
reference in this instruction to “moral culpability” prevented the jury from
considering and giving effect to the full range of permissible mitigating evidence.
Defendant relies upon People v. Lanphear (1984) 36 Cal.3d 163
(Lanphear), in which we reversed the death sentence because of instructions that
28
The language of the instruction was based upon our explanation of
mitigating circumstances in People v. Davenport, supra, 41 Cal.3d 247.
116
explicitly precluded the jury from considering sympathy for the defendant. In
Lanphear, the jury was instructed that “ ‘[m]itigating circumstances are
circumstances that do not constitute a justification or excuse of the offense in
question, but which, in fairness and mercy, must be considered in extenuating or
reducing the degree of moral culpability.’ ” (Id. at pp. 165-166.) We rejected the
Attorney General’s argument that this instruction cured the prejudicial effect of
the no-sympathy instruction, reasoning that “the extenuation instructions given
suggested that only circumstances that lessen moral culpability are to be
considered.” (Id. at p. 166.)
An instruction defining mitigation in terms of moral culpability for the
crime might, under some circumstances (such as those present in Lanphear), lead
a jury to believe that it could consider only mitigating circumstances that related to
the defendant’s moral culpability for the crime. But such an instruction does not
require reversal if, in context of the instructions as a whole, there is no reasonable
likelihood that the jury was misled as to the scope of mitigating evidence. (See,
e.g., People v. Griffin (2004) 33 Cal.4th 536, 594 [definition of mitigating
circumstance as “an extenuating circumstance” was not misleading, when
instructions made clear that the jury could consider any aspect of the defendant’s
character or record offered by the defendant as a basis for a life sentence]; People
v. Pollock (2004) 32 Cal.4th 1153, 1189-1192 [instruction that a mitigating factor
“makes a crime less severe” was not misleading in light of other instructions that
made it clear that mitigating factors need not be related to the crime].)
Defendant’s jury specifically was instructed that “pity and sympathy for the
defendant would be a proper consideration if you should find them to be warranted
in the circumstances.” Included in the list of mitigating factors the jury was
instructed to consider was “any sympathetic aspects of the defendant’s character
or record that the defendant offers as a basis for a sentence less than death,
117
whether or not related to it [sic] offense for which he is on trial.” The jurors were
told not to “limit your consideration of mitigating factors to those specific factors.
You also may consider any other circumstances relating to the case or to the
defendant as shown by the evidence as reasons for not imposing the death
penalty.” (Italics added.) Furthermore, the jury was informed that “any one of the
mitigating factors or any other mitigating evidence standing alone may support a
decision that death is not the appropriate punishment in this case.” (Italics added.)
Accordingly, the instruction made clear that the jury could consider any
circumstance related to defendant and any sympathetic reaction to that evidence as
a basis for a life sentence.
2. Direction to assume that the death sentence would be
carried out
During deliberations, the jury asked whether, in the history of the
California justice system, there had “ever been a review or appeal or lessening of a
sentence in regard to life without the possibility of parole?” In response, the court
instructed the jury that it was not to speculate or consider matters not in evidence.
The court stated: “Whether or not there are circumstances that might preclude
either the death penalty or life without possibility of parole from being carried out,
you are to assume it would be carried out for purposes of determining the
appropriate sentence for this defendant. You are to assume that if you sentence
[defendant] to life in imprisonment without the possibility of parole he will spend
the rest of his life in state prison, and you are to assume that if you sentence
[defendant] to death he will be executed in the gas chamber.” Defendant objected
to this instruction at trial, and challenges it here, to the extent the instruction
acknowledged that circumstances might preclude the punishment from being
carried out.
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Informing a jury that “whether or not there were circumstances that might
preclude either the death penalty or life without possibility of parole from being
carried out, [the jury] should assume it would be carried out for determining the
appropriate sentence for this defendant” is proper. (People v. Thompson, supra,
45 Cal.3d 86, 131; see also People v. Davis (1995) 10 Cal.4th 463, 547-548 [trial
court properly instructed jury, in response to question, that Governor could
commute either sentence]; People v. Ramos (1984) 37 Cal.3d 136, 159, fn. 12 [if
jury inquires about commutation, court should instruct that Governor may
commute either sentence, but jury must not consider possibility of commutation].)
The trial court’s instruction in the present case conformed to Thompson and was
not inaccurate, prejudicial, or misleading.
Defendant also argues that the question itself was evidence of juror
misconduct in that it revealed the jurors were considering facts outside the
evidence — whether a sentence of life imprisonment without possibility of parole
actually would be carried out. Because the trial court failed to conduct a hearing
to determine the scope of this asserted misconduct, defendant contends, this
evidence of misconduct raises a presumption of prejudice that has not been
rebutted and requires reversal.
When a court is “put on notice that good cause to discharge a juror may
exist,” it is required to conduct an inquiry to determine the facts. (People v.
Burgener (1986) 41 Cal.3d 505, 519; see People v. Davis, supra, 10 Cal.4th 463,
547.) In appropriate circumstances a trial judge may conclude, based on a juror’s
willful failure to follow an instruction, that the juror will not follow other
instructions and is therefore unable to perform his or her duty as a juror. (See,
e.g., People v. Daniels (1991) 52 Cal.3d 815, 864 [upholding the trial court’s
removal of a juror who had discussed the case with others and who had expressed
an opinion on the issue of guilt].) But the jury’s question in the present case
119
cannot reasonably be construed as demonstrating that the jurors were unable or
unwilling to follow the court’s instructions. The circumstance that the jurors
asked the trial judge for clarification suggests they merely were seeking to
understand the meaning of the instructions they had been given and were unaware
that discussion of such matters was improper. Because the trial court had no basis
for doubting the jurors’ ability or willingness to follow its instructions, further
inquiry was not required. To the extent the jury's question suggested that
jurors had been speculating about how the punishment of life imprisonment
without parole had been implemented in the past, the trial court’s instruction
directing them not to do so was a sufficient response.
F. Refusal of Instructions Proposed by the Defense
We find no merit in defendant’s arguments that the trial court erred in
refusing a number of instructions proposed by the defense.
The trial court properly denied instructions proposed by the defense that
would have required the jury to “weigh” aggravating and mitigating factors. (See
People v. Murtishaw (1989) 48 Cal.3d 1001, 1025 [trial court erred in giving
instructions based on 1978 death penalty law in case to which 1977 law applied].)
The 1977 death penalty law under which defendant was tried did not require
specifically that the jury “weigh” aggravating factors, and the jury was instructed,
in accordance with that statute, to “consider, take into account and be guided by”
the aggravating and mitigating circumstances. (See former § 190.3, added by
Stats. 1977, ch. 316, § 11, p. 1260.) Furthermore, we have noted that “there may
well be no significant difference between” the 1977 law’s requirement that the
jury “consider” the aggravating and mitigating factors and the 1978 law’s
requirement that the jury “weigh” these factors. (People v. Easley (1983) 34
Cal.3d 858, 884, fn. 19; Murtishaw, supra, 48 Cal.3d at pp. 1027-1028, fn. 12.)
Because the jury was not instructed to weigh aggravating and mitigating factors,
120
defendant’s further request for an instruction that the jury could return a verdict of
life imprisonment without the possibility of parole even if the aggravating factors
outweighed the mitigating factors was irrelevant and unnecessary.
The trial court properly refused to instruct that if the jurors had a doubt
concerning which penalty to impose, they must return a verdict of life
imprisonment without the possibility of parole. We consistently have held that
“[b]ecause the determination of penalty is essentially moral and normative . . .
there is no burden of proof or burden of persuasion.” (People v. Hayes (1990) 52
Cal.3d 577, 643; People v. Williams (1988) 44 Cal.3d 883, 960 [in case tried under
1977 death penalty law, trial court did not err in instructing the jury at penalty
phase that the prosecution had no burden of proof].) “The jurors cannot escape the
responsibility of making the choice by finding the circumstances in aggravation
and mitigation to be equally balanced and then relying on a rule of law to decide
the penalty issue.” (Hayes, supra, 52 Cal.3d at 643.)
The court was not required to instruct the jury that it could “spare the
defendant’s life for any reason you deem appropriate and satisfactory.” The jury
was fully instructed concerning the scope of its discretion to impose a sentence of
life imprisonment without the possibility of parole based on any evidence it
deemed appropriate. The jury was instructed that it could consider, in addition to
the mitigating factors listed, “any other circumstances relating to the case or to the
defendant as shown by the evidence as reasons for not imposing the death penalty.
Any one of the mitigating factors or other mitigating evidence standing alone may
support a decision that death is not the appropriate punishment in this case.” (See
People v. Kimble (1988) 44 Cal.3d 480, 510 [court did not err in instructing jury to
base its penalty determination on evidence presented during the trial rather than on
factors unrelated to such evidence].)
121
Nor did the court err in refusing defendant’s proposed instruction that the
jurors were “not to be governed by conjecture, prejudice, public opinion, or public
feeling.” The substance of this instruction was covered in other instructions. At
the guilt phase, the jury was instructed not to be “influenced by mere sentiment,
conjecture, sympathy, passion, prejudice, public opinion, or public feeling.” At
the penalty phase, the jury was told to consider the instructions given during the
guilt phase, but that the instruction previously given not to be influenced by pity or
sympathy for the defendant did not apply. (See People v. Babbitt (1988) 45
Cal.3d 660, 718, fn. 26; People v. Weaver, supra, 26 Cal.4th 876, 982.)
G. Prosecutor’s Argument
Defendant contends the prosecutor committed misconduct in his closing
argument at the penalty phase. The same standards discussed above in relation to
the guilt phase apply at the penalty phase. In addition, as noted above, as a
general matter a claim of prosecutorial misconduct is preserved for appeal only if
the defendant objects in the trial court and requests an admonition, or if an
admonition would not have cured the prejudice caused by the prosecutor’s
misconduct. (People v. Medina, supra, 11 Cal.4th at p. 761; People v. Fiero,
supra,1 Cal.4th at p. 211; People v. Ratliff, supra, 41 Cal.3d at p. 690.) To the
extent defendant failed to object to some of the prosecutor’s arguments, those
claims are forfeited. Nevertheless, as explained below, we conclude there was no
misconduct.
1.
Caldwell
error
Defendant argues the prosecutor improperly attributed responsibility for a
death verdict to the court process, society, the Catholic church, and defendant
himself, all in violation of the high court’s direction in Caldwell, supra, 472 U.S.
320, that a death sentence is invalid if the penalty jury “has been led to believe that
122
the responsibility for determining the appropriateness of the defendant’s death
rests elsewhere.” (Id. at p. 329.)
We find no violation of the principles established in Caldwell. Defendant’s
argument is “at once excessively subtle in its consideration of the words of the
summation in the abstract and insufficiently precise in its treatment of the
language in its context.” (People v. Clair, supra, 2 Cal.4th at p. 686.) The
prosecutor commented that every fairness had been extended to the defendant, and
that “the decisions that will be reached eventually in this case” would not be made
hastily or without adequate reflection. In context, this comment was a reference to
the decision the jurors were to make, not to a decision by a court or any other
entity that might review their verdict.
The prosecutor referred to the testimony of a priest who had testified for
defendant, noting that, according to the priest, it was appropriate in his religion for
the state to employ the death penalty to protect society or deter crime. The
prosecutor pointed out that the priest who testified was unaware of the
circumstances of the crime, but that the jury was aware, and he asked the jury to
use “that analysis” to evaluate the witness-killing special circumstance. This was
a fair comment on the defense evidence and could not have diminished the jury’s
sense of responsibility for the death penalty verdict.
Several times, the prosecutor referred to the jury as the “conscience of the
community” or as representatives of the community. Such a comment is not
improper. (See Caldwell, supra, 472 U.S. at p. 333 [jury is called upon to “decide
that issue on behalf of the community”].)
Finally, the prosecutor did not engage in misconduct in arguing that
defendant had brought the death penalty upon himself ― that there was only one
appropriate penalty and it was “the one he selected through his very conduct, and
that’s the death penalty.” An argument that the defendant is responsible for
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choosing to engage in conduct that deserves the death penalty is not improper.
(See People v. Hayes (1999) 21 Cal.4th 1211, 1283; People v. Arias (1996) 13
Cal.4th 92, 180.)
2. Appeal to jury’s passions and prejudice
Defendant contends the prosecutor appealed to the jury’s fears, passions,
and prejudices in arguing that the witness-killing special circumstance was a very
serious aggravating factor because it was a threat to the criminal justice system, a
killing “designed to simply destroy a system that all of us have the right to expect
comfort and support and protection from.” This argument was not improper. The
prosecutor did not suggest that the jurors’ lives would be directly threatened if
defendant were not executed; he merely argued that the witness-killing special
circumstance made defendant’s crime particularly offensive to organized society
and morally reprehensible.
3. Comment on lack of remorse
We find no merit in defendant’s contention that the prosecutor commented
on defendant’s failure to testify, in violation of the Fifth and Fourteenth
Amendments as construed in Griffin v. California, supra, 380 U.S. 609. The
prosecutor argued that defendant’s evidence of remorse was unconvincing because
he had not fully accepted responsibility for his crimes. Numerous defense
witnesses testified that defendant had expressed remorse about the crime but none
testified that he had admitted what he had done; indeed, they testified that he had
refused to discuss his involvement or claimed not to be able to recall what had
happened. For example, Dr. Rosenthal testified that defendant was upset that
someone was killed and that he was involved, but claimed not to remember any
specific thing that he had done. Similarly, Mr. Shiraldi testified that defendant felt
responsible for what had happened and felt remorse, but that defendant claimed
not to recall what had happened. Father Wood testified that defendant had
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admitted committing “a crime” and had said he was sorry. The prosecutor’s
argument was not a reference to defendant’s failure to testify but was a fair
comment on the defense evidence of remorse.
4. Comment on matters not in evidence
Defendant contends the prosecutor committed misconduct by encouraging
the jury to speculate about matters not in evidence, in contravention of the trial
court’s rulings that prohibited the prosecutor from introducing evidence of
defendant’s nonviolent crimes, his incarceration as a juvenile, and a period of
absence without leave while he was in the Army. In order to avoid opening the
door to the prosecutor’s presentation of evidence of these incidents in rebuttal, the
defense did not present evidence of defendant’s life history between 1965, when
he was 14 years of age, until 1971, when he began living with his wife. The
prosecutor pointed out this gap in the evidence, referring to these as the “lost
years.” He stated the jury should not speculate about what happened during those
years, but argued that defendant had presented only a partial picture of himself,
and that the jury really did not know much about him. This was a fair comment on
the evidence.
I. Discharge of Juror Stephen W.
Defendant contends the trial court erred in discharging juror Stephen W.
during the penalty phase deliberations. On the morning of the fourth day of
deliberations, the jury sent a note to the court indicating that one of the jurors had
discussed the case with a family member. The court convened a hearing at which
the juror, Stephen W., admitted that he had violated the instructions of the court by
discussing the case with his wife. He stated that he needed to “straighten things
out in [his] head,” and in the process of “trying to sort the facts out” he had
recounted the story of the case to his wife. He explained that his wife told him
that he had a difficult decision to make and “gave some opinion [sic] which left
125
me with the same decision that I had before.” The juror testified that this
discussion allowed him to think more clearly. Over defense objection, the trial
court excused Stephen W. and seated an alternate juror. The court stated that
Stephen W. deliberately and consciously had violated the court’s order not to
discuss the case outside of jury deliberations. The juror had a doubt about his
opinion and voiced that doubt to someone outside the jury’s deliberations, and his
doubt was removed by that discussion.
The court may discharge a juror and substitute an alternate if it finds a juror
is unable to perform his or her duty. (§ 1089.) A trial court’s decision to
discharge a juror for misconduct is reviewed for abuse of discretion, and is upheld
if supported by substantial evidence. (People v. Williams (2001) 25 Cal.4th 441,
447; People v. Cleveland, supra, 25 Cal.4th at p. 474; People v. Marshall (1996)
13 Cal.4th 799, 843.) The juror’s inability to perform must “ ‘ “appear in the
record as a demonstrable reality.” ’ ” (Marshall, supra, 13 Cal.4th at p. 843.)
Stephen W. admitted that he had discussed the case with his wife in
violation of the court’s admonition ― an act that constitutes deliberate
misconduct. (See § 1122, subd. (a).) “[A] juror’s serious and willful misconduct
is good cause to believe that the juror will not be able to perform his or her duty.”
(People v. Daniels, supra, 52 Cal.3d 815, 864.) In Daniels, this court upheld the
removal of a juror who had discussed the case with others and who had expressed
an opinion on the issue of guilt, stating that “a judge may reasonably conclude that
a juror who has violated instructions to refrain from discussing the case . . . cannot
be counted on to follow instructions in the future.” (Id. at p. 865.) The trial
court’s conclusion that Stephen W.’s misconduct rendered him unable to perform
his duty as a juror is supported by substantial evidence.
Defendant further asserts that the trial court erred in refusing defendant’s
request to discharge the entire penalty phase jury after it discharged juror
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Stephen W., the defense having claimed that the remaining jurors would be
incapable of starting penalty deliberations anew. The trial court instructed the jury
in accordance with People v. Collins (1976) 17 Cal.3d 687, 694, that the parties
have a right to a verdict reached only after full participation by all twelve jurors,
and that they must disregard their past deliberations and begin deliberations anew.
As we stated in Collins, “We are confident that juries made aware of the rights
involved will faithfully follow such instructions.” (Ibid.) Defendant provides no
reason for us to doubt that the jury in this case was able to follow the court’s
instructions.
J. Motion to Modify the Death Verdict
The trial court denied defendant’s motion to reduce his sentence to life
imprisonment without the possibility of parole under section 190.4, subdivision
(e). In its written findings, the trial court reviewed all of the relevant aggravating
and mitigating factors, concluding that “the jury on the weight of the evidence and
the law reached a just and proper verdict.” The court also found “personally and
independently . . . that the death penalty is proper in this case.” The court did not
take into account the lesser punishments received by defendant’s accomplices,
noting that proportionality was not a proper factor for consideration.
Nevertheless, the court stated that it agreed with Justice Mosk’s dissenting opinion
in People v. Carrerra (1989) 49 Cal. 3rd 291, 347, which stated that intracase
proportionality should be considered by trial judges in ruling on section 190.4,
subdivision (e) motions. The court commented that the other individuals involved
in the crime were “getting away with murder” and that the prosecutor “should
have, in all fairness, accepted [defendant’s] offer to plead guilty with a penalty of
Life Imprisonment without Possibility of Parole.”
Defendant contends the trial court erred by (1) failing to “weigh” the
aggravating and mitigating factors, and (2) considering the shooting in Utah as a
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factor in aggravation. We have rejected both of these arguments above with
respect to the jury’s verdict and accordingly, for the same reasons, find no error in
the trial court’s ruling.
Defendant also contends that reconsideration of the section 190.4,
subdivision (e) motion is required because in conducting its review the court
considered an invalid robbery special circumstance. In discussing section 190.3,
factor (a), “[t]he circumstances of the crime . . . and the existence of any special
circumstances,” the court made no mention of the robbery special circumstance.
Rather, the court gave weight to “a complete lack of mercy in the execution of the
hapless victim.” We find no reasonable possibility that the court’s ruling would
have been different had the robbery special circumstance not been found true.
The trial court did not err in concluding that the lesser punishment given to
defendant’s accomplices was not an appropriate factor for its consideration. This
court will undertake “intracase” proportionality review “to determine whether the
death penalty is disproportionate to [the defendant’s] personal culpability.”
(People v. Anderson (2001) 25 Cal.4th 543, 602.) Although such proportionality
analysis takes into account the defendant’s relative responsibility for the crime as
compared to others who were involved, the disposition of codefendants’ cases is
not part of the analysis. (See People v. Vieira (2005) 35 Cal.4th 264, 302;
People v. Riel (2000) 22 Cal.4th 1153, 1223.)
K. Discretion to Strike Special Circumstances
Defendant contends that the case must be remanded to afford the trial court
the opportunity to strike the special circumstance findings in furtherance of justice
under section 1385, subdivision (a), for the limited purpose of imposing a sentence
128
of life imprisonment without the possibility of parole.29 He argues that because
the trial court had the authority to strike the special circumstances and impose a
sentence of life imprisonment with the possibility of parole (see People v.
Williams (1981) 30 Cal.3d 470), a fortiori the court must have had the authority to
strike the special circumstances for the limited purpose of imposing a punishment
of life imprisonment without the possibility of parole. Defendant cites no
authority to support his contention that the court may strike a special circumstance
finding for such a purpose, and we find none. If the special circumstance findings
had been stricken, the court would have been required to impose a lawful sentence
as authorized by the remaining verdicts and special findings. A sentence of life
without the possibility of parole would not have been authorized in the absence of
a true finding on at least one of the special circumstance allegations.
L. Cruel and Unusual Punishment
Defendant contends on several grounds that his death sentence constitutes
cruel and unusual punishment under the Eighth Amendment to the federal
Constitution and article I, section 17 of the California Constitution. We disagree.
The circumstance that George and Jesse Perez were allowed to plead guilty to the
charge of accessory after the fact does not affect defendant’s individual culpability
and thus does not render defendant’s death sentence cruel and unusual
punishment. (See People v. Hill (1992) 3 Cal.4th 959, 1013-1014.) A 25-year
delay in carrying out the sentence does not render it cruel and unusual. (People v.
Hill, supra, 3 Cal.4th at pp. 1015-1016.) Defendant’s contention that it would be
29
Section 1385.1, which prohibits a court from striking a special
circumstance finding, was not adopted until June 5, 1990, and therefore does not
apply to defendant’s case. (See Tapia v. Superior Court, supra, 53 Cal.3d 282,
298-299 & fn. 17.)
129
unconstitutional to execute him after this long period, because he now is a
different person, cannot be resolved based on the record. (See People v. Barnett
(1998) 17 Cal.4th 1044, 1183.) Execution by the administration of lethal gas does
not constitute cruel or unusual punishment. (In re Anderson (1968) 69 Cal.2d 613,
631-632.) In any event, defendant instead may choose to be executed by lethal
injection. (§ 3604.)
IV. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
Defendant contends that, in numerous respects, his trial attorney rendered
constitutionally ineffective assistance at both the guilt and penalty phases of the
trial. In order to establish a claim of ineffective assistance of counsel, defendant
bears the burden of demonstrating, first, that counsel’s performance was deficient
because it “fell below an objective standard of reasonableness . . . under prevailing
professional norms.” (Strickland v. Washington, supra, 466 U.S. 668, 688;
Ledesma I, supra, 43 Cal.3d at p. 215-216.) Unless a defendant establishes the
contrary, we shall presume that “counsel’s performance fell within the wide range
of professional competence and that counsel’s actions and inactions can be
explained as a matter of sound trial strategy.” (People v. Carter (2003) 30 Cal.4th
1166, 1211.) If the record “sheds no light on why counsel acted or failed to act in
the manner challenged,” an appellate claim of ineffective assistance of counsel
must be rejected “unless counsel was asked for an explanation and failed to
provide one, or unless there simply could be no satisfactory explanation.” (People
v. Pope (1979) 23 Cal.3d 412, 426; see In re Avena (1996) 12 Cal.4th 694, 721.)
If a defendant meets the burden of establishing that counsel’s performance was
deficient, he or she also must show that counsel’s deficiencies resulted in
prejudice, that is, a “reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” (Strickland, supra,
466 U.S. at p. 694.)
130
As explained below, we conclude that defendant has failed to establish that
defense counsel rendered constitutionally ineffective assistance. We do not
address each of defendant’s numerous allegations of deficient performance in
detail, because all of these claims suffer from the same defect — the present
record does not preclude the possibility that defense counsel’s actions were based
upon reasonable strategic decisions. As we repeatedly have emphasized, unless
the record reflects the reason for counsel’s actions or omissions, or precludes the
possibility of a satisfactory explanation, we must reject a claim of ineffective
assistance raised on appeal. (People v. Mendoza Tello (1997 15 Cal.4th 264, 266-
267.) Such claims are more appropriately addressed in a habeas corpus
proceeding. (Ibid.)
Turning to these claims, defendant asserts that his attorney rendered
ineffective assistance in failing to research adequately the relevant law and bring a
variety of pretrial or in limine motions before making strategic decisions as to
which defenses to present. He contends, for example, that counsel should have
litigated the permissible use of material from the first trial and from the habeas
corpus hearing (including Dr. Glathe’s testimony), the admissibility of certain
evidence related to the theory that Joe Guerra committed the crimes (such as the
results of his polygraph examination), and the admissibility of the photographic
lineup from which the victim Flores identified defendant as the robber at the
Hudson gas station. Defendant contends that pretrial rulings on such matters were
critical to enable counsel to decide which defenses to present at trial, how to
conduct effective voir dire of the prospective jurors, and how to avoid opening the
door to damaging rebuttal evidence.
The record does not reveal the extent of the research conducted by defense
counsel on the subjects of these motions, and we cannot draw the conclusion that
counsel failed to research the law adequately. Nor can we conclude on the present
131
record that no reasonable counsel would have chosen to proceed without obtaining
pretrial rulings. “[T]he means of providing effective assistance are many and . . .
as a consequence counsel has wide discretion in choosing which to use.”
(Ledesma I, supra, 43 Cal.3d at p. 216.) The trial court would have acted within
its discretion in declining to make a pretrial ruling without hearing the witnesses’
testimony. To the extent the evidence at issue was admitted to impeach defense
witnesses, or was presented by the defense, counsel may have been unwilling to
give the prosecution the benefit of a preview of the defense case in order to obtain
such rulings.
Defendant also contends his counsel performed unreasonably in choosing
to present inconsistent defenses — on the one hand reasonable doubt and potential
third party culpability, and on the other hand diminished capacity. He asserts
counsel’s conduct was particularly deficient in the absence of a pretrial court
ruling on the admissibility of defendant’s confession to Dr. Glathe. Again,
however, on the present record we have no basis for second-guessing trial
counsel’s decision.
Defendant complains that his counsel initially chose to keep from the jury
the fact that defendant previously was convicted and sentenced to death for the
same offense and accordingly failed to conduct voir dire on that subject, and that
counsel followed this course of action without taking appropriate steps to ensure
that knowledge of the prior proceedings would not be revealed to the jurors.
Similarly, defendant complains that counsel presented a penalty phase defense that
necessarily revealed to the jury defendant’s prior conviction and custody status
without ascertaining, through voir dire, what impact these circumstances would
have on the jury. “[I]f the record does not preclude a satisfactory explanation for
counsel’s actions, we will not, on appeal, find that trial counsel acted deficiently.”
(People v. Stewart, supra, 33 Cal.4th 425, 459.) In the present appeal, we have no
132
basis upon which to conclude that defense counsel failed to pursue a reasonable
tactical choice in deciding not to bring these matters to the jury’s attention at an
early stage of the proceedings, but instead to rely upon the general voir dire and
the court’s instructions to ensure that the jurors would be impartial and consider
only relevant matters. (See Stewart, supra, 33 Cal.4th at p. 459.)
Defendant contends trial counsel rendered ineffective assistance by
presenting certain evidence that opened the door to damaging rebuttal. In this
category, defendant challenges, for example, defense counsel’s decisions to
present (1) the testimony of expert witnesses who had considered Dr. Glathe’s
report, leading to the admission of Dr. Glathe’s testimony concerning defendant’s
confession; (2) evidence that Joe Guerra may have committed the offenses, which
bolstered the credibility of prosecution witness Jona Cardona (who named Guerra
as one of defendant’s accomplices in the murder); (3) the testimony of a social
worker at the penalty phase whose omission of certain damaging portions of
defendant’s social history allegedly was exploited by the prosecution; and (4) the
testimony of a Father Wood, which injected the position of the Catholic Church on
the death penalty into the proceedings and was used against the defense in the
prosecutor’s argument. In each of these and other related instances of allegedly
ineffective assistance, the evidence at issue was of some obvious benefit to the
defense. Accordingly, on this record, we cannot conclude that defense counsel
had no reasonable basis for presenting it.
Defendant contends his counsel rendered ineffective assistance in argument
to the jury at the penalty phase discussing uncharged special circumstances that
the jury may have concluded were applicable to defendant’s case, including
kidnapping, financial gain, and atrocious or heinous acts. Defense counsel listed
the various special circumstances in the context of arguing that the law makes the
death penalty available in a wide variety of circumstances, but that it is not
133
imposed automatically for any offense and should be reserved for only the worst
offenders. The mere circumstance that a different, or better, argument could have
been made is not a sufficient basis for finding deficient performance by defense
counsel. (People v. Coddington, supra, 23 Cal.4th 529, 655; People v. Mincey
(1992) 2 Cal.4th 408, 471.)
Finally, defendant makes a number of additional claims of ineffective
assistance of counsel related to various contentions, discussed above, of error in
the court’s rulings or instructions or misconduct by the prosecutor. Defendant
contends that, in numerous instances, his counsel performed deficiently in failing
to make objections, request instructions, or cite relevant law. Because we have
addressed the merits of the underlying contentions and have concluded, above,
that the actions at issue were not erroneous or improper, that the instructions were
not warranted, or that any alleged error was not prejudicial, defendant’s related
claims of ineffective assistance of counsel fail and do not require further
discussion.
V. DISPOSITION
The judgment is reversed as to the robbery charge set forth in count three;
the robbery special circumstance is set aside, and the judgment as to guilt and
penalty is otherwise affirmed.
GEORGE, C. J.
WE CONCUR:
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.
134
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Ledesma
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S014394
Date Filed: August 17, 2006
__________________________________________________________________________________
Court: Superior
County: Santa Clara
Judge: Paul R. Teilh
__________________________________________________________________________________
Attorneys for Appellant:
Donald M. Thommen and Jeffrey J. Stuetz, under appointments by the Supreme Court, for Defendant and
Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Ronald A Bass,
Assistant Attorney General, Ronald S. Matthias, Moona Nandi and Karl S. Mayer, Deputy Attorneys
General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Jeffrey J. Stuetz
PMB 288
33440 Youngfield Street
Wheat Ridge, CO 80033
(303) 431-3678
Moona Nandi
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5865
Date: | Docket Number: |
Thu, 08/17/2006 | S014394 |
1 | The People (Respondent) Represented by Attorney General - San Francisco Office Moona Nandi, Deputy Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA |
2 | Ledesma, Fermin Rodriguez (Appellant) Represented by Terry J. Amdur Attorney at Law 1939 Rose Villa St. Pasadena, CA |
3 | Ledesma, Fermin Rodriguez (Appellant) Represented by Jeffrey J. Stuetz Attorney at Law 3440 Youngfield Street, PMB 288 Wheat Ridge, CO |
Disposition | |
Aug 17 2006 | Opinion filed |
Dockets | |
Feb 7 1990 | Judgment of death |
Mar 5 1990 | Filed certified copy of Judgment of Death Rendered 2-7-90. |
Mar 5 1990 | Application for Extension of Time filed By Court Reporters to Complete R.T. |
Mar 5 1990 | Extension of Time application Granted To Court Reporters To 3-29-90 To Complete R.T. |
Mar 23 1990 | Application for Extension of Time filed By Court Reporters to Complete R.T. |
Mar 27 1990 | Extension of Time application Granted To Court Reporters To 4-30-90 To Complete R.T. |
Apr 2 1990 | Application for Extension of Time filed By Court Reporters to Complete R.T. |
Apr 5 1990 | Extension of Time application Granted To Court Reporters To 4-30-90 To Complete R.T. |
Apr 20 1990 | Application for Extension of Time filed By Court Reporters to Complete R.T. |
Apr 23 1990 | Extension of Time application Granted To Court Reporters To 5-30-90 To Complete R.T. |
May 30 1990 | Application for Extension of Time filed By Court Reporters to Complete R.T. |
Jun 1 1990 | Extension of Time application Granted To Court Reporters To 6-29-90 To Complete R.T. |
Jul 2 1990 | Application for Extension of Time filed By Court Reporters (Constant and Sugino) to Complete R.T. |
Jul 6 1990 | Extension of Time application Granted To Court Reporters To 7-30-90 To Complete R.T. |
Aug 1 1990 | Application for Extension of Time filed By Court Reporter to Complete R.T. |
Aug 3 1990 | Extension of Time application Granted To Court Reporters To 9-10-90 To Complete R.T. |
Feb 11 1993 | Counsel appointment order filed Jeffrey J. Stuetz, Esq. Is Appt'd to represent Applt on A.A., Including Any Related Habeas Proceedings. |
Oct 20 1993 | Filed: Applt's Applic. for Relief from Default & Applic. for Ext. of time to request correction of Record. |
Oct 29 1993 | Order filed: Applic. of Applt for Relief from Default for Failure to Timely file on or before 6-8-93, A request for Ext. of time to request correction of The Record, Is Granted. Applt granted to 12-13-93 to request correction of Record on Appeal. in The Future, should Counsel have Any Question with Regard to the Proper Applic. of the Rules of Court as Explained by the Office of the Clerk, Counsel Must Promptly Bring the Matter to The Court's Attention in Writing. A request for Default Occasioned by Counsel's Failure in this Regard Will not be Granted. Counsel Is Further Ordered to Notify the Clerk of the Supreme Court in Writing as Soon as the Act as to which the Court has granted an Extension of time has Been Completed. |
Dec 13 1993 | Received: Copy of Applt's request for correction & Additional Record, to Examine Sealed Record, & Settle Record (filed in Superior Court) (37 Pp.) |
Mar 16 1994 | Compensation awarded counsel |
Jun 22 1994 | Compensation awarded counsel |
Jan 18 1995 | Compensation awarded counsel |
Feb 1 1995 | Compensation awarded counsel |
May 25 1995 | Filed: Applt's Applic. for appointment of Second Counsel. |
May 31 1995 | Order filed: The application of appellant for appointment of second counsel is granted. Donald M. Thommen, Esq., is hereby appointed as associate counsel to represent appellant on his automatic appeal now pending in this court, including any related proceedings. |
Nov 13 1995 | Compensation awarded counsel |
Jan 17 1996 | Compensation awarded counsel |
Apr 5 1996 | Motion filed By Applt to Compel Compliance with Penal Code Section 1240.1 (12 Pp. Excluding Exhibits). |
Apr 24 1996 | Compensation awarded counsel |
May 15 1996 | Order filed: The motion of Appellate Counsel for Applt "to Compel Compliance with Penal Code Section 1240.1" Is denied. At The Present Stage of The Proceedings, Trial Counsel Is not Required to Review the Entire Record, in Addition to the Review Undertaken by Appellate Counsel, But Is Required to Assist with the correction of errors or Omissions in the Record that have been Identified by Appellate Counsel & to Facilitate The Preparation of Necessary Settled Statements of Proceedings in which Trial Counsel participated. |
Aug 19 1996 | Compensation awarded counsel |
Nov 25 1996 | Compensation awarded counsel |
Feb 25 1997 | Change of Address filed for: Applt Counsel Jeffrey J. Stuetz |
Mar 12 1997 | Compensation awarded counsel |
Jul 18 1997 | Compensation awarded counsel |
Sep 15 1997 | Motion filed By Applt for Additonal Record (8 Pp.) |
Sep 18 1997 | Filed: Response to motion for Additional Record (3 Pp.) |
Oct 2 1997 | Filed: Reply to response to motion for Additional Record. |
Oct 29 1997 | Order filed: and H005911 that were filed with or served upon the superior court to become part of the appellate Appellant's "Motion for Additional Record for Automatic Capital Appeal" is granted as specified herein. The Santa Clara County Superior Court is hereby directed to: 1. Cause transcripts of the electronic recording identified as People's Exhibits 5, 6, and 19 and Defendant's Exhibit L to be prepared and included in the clerk's transcript. (Cal. Rules of Court, rule 203.5.) 2. Cause any documents related to extraordinary writ proceedings H004068, H004310, H004361, record. 3. Cause any reported hearings concerning the foregoing writ proceedings to be transcribed and included in the reporter's transcript. 4. Cause any existing record of the contents of oaths administered to prospective jurors, jurors, alternate jurors, and the bailiff to be transcribed and/or reproduced and included in the appellate record. 5. Provide appellate counsel with copies of all exhibits that are capable of reproduction. 6. Provide appellate counsel with copies of all charts, diagrams, or other audio-visual aids used by either counsel during argument or examination of witnesses, to the extent such items are presently in the custody of the clerk of the superior court and capable of reproduction. |
Dec 10 1997 | Compensation awarded counsel |
Jul 1 1998 | Record on appeal filed C-17 (4,715 Pp.) and R-58 (9,637 Pp.); Clerk's Transcript includes 1,504 pages of Juror Questionnaiers. |
Jul 1 1998 | Appellant's opening brief letter sent, due: 8-10-98. |
Aug 4 1998 | Application for Extension of Time filed To file Aob. |
Aug 7 1998 | Extension of Time application Granted To 10-9-98 To file AOB |
Sep 30 1998 | Application for Extension of Time filed To file Aob. |
Sep 30 1998 | Extension of Time application Granted To 12-8-98 To file Aob. |
Dec 3 1998 | Application for Extension of Time filed To file Aob. |
Dec 9 1998 | Extension of Time application Granted To 2-8-99 To file AOB |
Dec 16 1998 | Compensation awarded counsel |
Jan 13 1999 | Compensation awarded counsel |
Feb 5 1999 | Application for Extension of Time filed To file Aob. |
Feb 11 1999 | Extension of Time application Granted To 4-9-99 To file Aob. |
Apr 6 1999 | Application for Extension of Time filed By Applt to file AOB |
Apr 12 1999 | Extension of Time application Granted To 6-9-99 To file AOB |
Jun 8 1999 | Application for Extension of Time filed To file Aob. |
Jun 14 1999 | Extension of Time application Granted To 8-9-99 To file AOB |
Aug 3 1999 | Application for Extension of Time filed To file Aob. |
Aug 5 1999 | Extension of Time application Granted To 10-8-99 To file AOB |
Oct 6 1999 | Application for Extension of Time filed To file Aob. |
Oct 15 1999 | Extension of Time application Granted To 12/7/99 To file Aob. |
Dec 7 1999 | Application for Extension of Time filed To file Aob. |
Dec 15 1999 | Extension of Time application Granted To 2/7/2000 To file Aob. |
Feb 7 2000 | Application for Extension of Time filed To file Aob. |
Feb 28 2000 | Filed: Suppl Declaration in support of Eot request to file Aob. |
Mar 2 2000 | Extension of Time application Granted To 4/7/2000 To file Aob. (Based on Counsel's Estimation that He will be Able To file AOB by June 2000) |
Apr 4 2000 | Application for Extension of Time filed To file Aob. |
Apr 13 2000 | Extension of Time application Granted Based on Counsel's representation that He will be Able to file AOB in this Matter by June 2000, Applt's request for an Ext. of time to file the Brief Is granted to and Including 6-6-2000. |
Jun 5 2000 | Application for Extension of Time filed To file Aob. |
Jun 12 2000 | Extension of Time application Granted To 8/7/2000 To file Aob. |
Aug 7 2000 | Application for Extension of Time filed for 7 day ext. of time to file AOB. |
Aug 8 2000 | Extension of Time application Granted To 8/14/2000 to file AOB. No further ext. of time will be granted. |
Aug 14 2000 | Application to file over-length brief filed Applt's request to file a 1,307 page AOB. (AOB submitted under separate cover) |
Aug 14 2000 | Request for Judicial Notice filed (Calif. Supreme Court records-crim. no. 21436 and 23178) |
Aug 30 2000 | Order filed: The applic. to file an oversize AOB of 1,307 pp. is denied. The brief shall be returned to counsel for revision and resubmission of a new brief. (Cal. Rules of Ct., rule 18.) Good cause appearing for the filing of an oversize brief in this matter based upon the number and complexity of issues raised, defendant shall have 120 days from the date of this order to serve and file a new brief not to exceed 600 pp. (Id., rule 37, subd. (c).) |
Sep 26 2000 | Counsel's status report received (confidential) |
Dec 21 2000 | Application for Extension of Time filed To file AOB. (14th request) |
Jan 2 2001 | Extension of Time application Granted To 2/26/2001 to file AOB. No further ext. of time are contemplated. |
Jan 5 2001 | Compensation awarded counsel Atty Stuetz |
Feb 26 2001 | Application for Extension of Time filed To file AOB. (15th request) |
Mar 2 2001 | Extension of Time application Granted To 4/27/2001 to file AOB. No further ext. of time will be granted |
Apr 23 2001 | Appellant's opening brief filed (4 vols. - 599 Pp.) |
May 9 2001 | Counsel's status report received (confidential) from assoc. counsel Thommen regarding habeas corpus preparation. |
May 23 2001 | Application for Extension of Time filed To file respondent's brief. (1st request) |
May 24 2001 | Extension of Time application Granted To 7/23/2001to file respondent's brief. |
Jul 23 2001 | Application for Extension of Time filed To file resp.'s brief. (2nd request) |
Jul 25 2001 | Extension of Time application Granted To 9/21/2001 to file resp.'s brief. |
Aug 15 2001 | Compensation awarded counsel Atty Stuetz |
Sep 17 2001 | Application for Extension of Time filed To file resp.'s brief. (3rd request) |
Sep 20 2001 | Extension of Time application Granted 11/20/2001 to file resp.'s brief. |
Nov 19 2001 | Request for extension of time filed To file resp.'s brief. (4th request) |
Nov 27 2001 | Extension of time granted To 1/22/2002 to file resp.'s brief. After that date only 2 furhter extensions will be granted for a total of 120 additional days will be granted. |
Dec 11 2001 | Counsel's status report received (confidential) from atty Stuetz. |
Jan 7 2002 | Counsel's status report received (confidential) |
Jan 14 2002 | Motion filed For appointment of special counsel to represent applt. for the limited purpose of advising applt. concerning potential/actual conflicts of interest of court-appointed habeas counsel. |
Jan 22 2002 | Request for extension of time filed To file resp.'s brief. (5th request) |
Jan 28 2002 | Extension of time granted To 3/25/2002 to file resp.'s brief. Dep. AG Mayer anticipates filing the brief by 3/30/2002. Only one further extension totaling 67 additional days is contemplated. |
Feb 13 2002 | Request Denied Appellant's "Motion for Appointment of Special Counsel to Represent Fermin Rodriguez Ledesma for the Limited Purpose of Advising Him Concerning Potential and/or Actual Conflicts of Interest of Court-Appointed Appellate-Habeas Counsel," filed on January 14, 2002, is denied. |
Mar 21 2002 | Request for extension of time filed To file resp.'s brief. (6th request) |
Mar 26 2002 | Extension of time granted To 5/31/2002 to file resp.'s brief. Dep. Atty. General Mayer anticipates filing the brief by that date. No further extension is contemplated. |
May 3 2002 | Counsel's status report received (confidential) |
May 28 2002 | Request for extension of time filed To file resp.'s brief. (7th request) |
May 30 2002 | Extension of time granted To 7/31/2002 to file resp.'s brief. Dep. Atty. Gen. Mayer anticipates filing that brief by 7/31/2002. No further extension will be granted. |
Jul 8 2002 | Change of Address filed for: applt.'s lead counsel, Jeffrey J. Stuetz. |
Jul 30 2002 | Request for extension of time filed To file resp.'s brief. (8th request) |
Aug 1 2002 | Extension of time granted To 8/14/2002 to file resp.'s brief. Dep. AG Mayer anticipates filing that brief by 8/14/2002. No further extension will be granted. |
Aug 13 2002 | Request for extension of time filed To file respondent's brief. (9th request) |
Aug 16 2002 | Extension of time granted to 8-21-2002 to file respondent's brief. After that date, no further extension will be granted. The extension is granted based upon Deputy AG Mayer's representation that he anticipates filing the brief by 8-21-2002. |
Aug 20 2002 | Filed: application for leave to file oversized respondent's brief. (brief submitted under separate cover) |
Aug 21 2002 | Filed: amended declaration of service by mail for applic. to file oversized respondent's brief. |
Aug 21 2002 | Filed: amended declaration of service by mail of respondent's brief. |
Aug 21 2002 | Order filed granting application for leave to file oversized respondent's brief. |
Aug 21 2002 | Respondent's brief filed (445 pp.) |
Sep 12 2002 | Request for extension of time filed To file appellant's reply brief. (1st request) |
Sep 12 2002 | Counsel's status report received (confidential) |
Sep 16 2002 | Extension of time granted To 11/12/2002 to file appellant's reply brief. After that date, only three further extensions totaling about 150 additional days are contemplated. Extension is granted based upon counsel Jeffrey J. Stuetz's representation that he anticipates filing that brief by 4/1/2003. |
Nov 18 2002 | Counsel's status report received (confidential) |
Nov 18 2002 | Request for extension of time filed To file appellant's reply brief. (2nd request) |
Nov 19 2002 | Extension of time granted To 1/13/2003 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 counsel Jeffrey J. Stuetz's representation that he anticipates filing that brief by 4/1/2003. |
Jan 13 2003 | Counsel's status report received (confidential) |
Jan 13 2003 | Request for extension of time filed to file appellant's reply brief. (3rd request) |
Jan 15 2003 | Extension of time granted To 3/14/2003 to file appellant's reply brief. After that date, only one further extension totaling about 30 additional days is contemplated. Extension is granted based upon counsel Jeffrey J. Stuetz's representation that he anticipates filing that brief by 4/1/2003. |
Feb 4 2003 | Change of Address filed for: associate counsel Donald M. Thommen. |
Feb 24 2003 | Motion to withdraw as counsel filed by associate counsel Donald M. Thommen. |
Mar 4 2003 | Filed: Declaration of lead counsel Jeffrey J. Stuetz in support of attorney Donald M. Thommen's motion to withdraw as associate counsel of record. |
Mar 4 2003 | Filed: Supplemental declaration of service of motion to wthdraw as counsel of record. |
Mar 14 2003 | Counsel's status report received (confidential) |
Mar 14 2003 | Request for extension of time filed to file appellant's reply brief. (4th request) |
Mar 19 2003 | Withdrawal of counsel allowed by order Good cause appearing, the application of appointed associate counsel for permission to withdraw as attorney of record for appellant Fermin Rodriguez Ledesma, filed February 24, 2003 (additional supporting declaration filed (March 4, 2003), is granted. The order appointing Donald M. Thommen as associate counsel of record for appellant Fermin Rodriguez Ledesma on his AA and related habeas corpus proceedings, filed May 31, 1995, is hereby vacated. Jeffrey J. Stuetz shall remain as counsel of record for appellant Fermin Rodriguez Ledesma for both the direct appeal and also the related state habeas corpus/executive clemency proceedings in the above automatic appeal now pending in this court. The request for appointment of "new habeas corpus counsel" is denied without prejudice. |
Mar 19 2003 | Extension of time granted to 4/14/2003 to file appellant's reply brief. After that date, no further extension is contemplated. Extension is granted based upon counsel Jeffrey J. Stuetz's representation that he anticipates filing that brief by 4/13/2003. |
Apr 15 2003 | Request for extension of time filed to file appellant's reply brief. (5th request) |
Apr 18 2003 | Extension of time granted to 5/14/2003 to file appellant's reply brief. Extension is granted based upon counsel Jeffrey J. Stuetz's representation that he anticipates filing that brief by 5/14/2003. After that date, no further extension is granted. |
May 15 2003 | Filed: appellant's "Application to File a 303 Page Reply Brief." (2 vol. brief submitted under separate cover) |
May 16 2003 | Order filed The application of appellant for leave to file a reply brief in excess of the page limit is granted. |
May 16 2003 | Appellant's reply brief filed 2 vols. (303 pp.) (per rule 40(k)) |
Jul 8 2003 | Motion filed by attorney Jeffrey Stuetz to withdraw as counsel of record and motion to appoint new appellate, habeas and clemency counsel. |
Jul 14 2003 | Request to file document under seal filed (in AA proceeding) Application of California Appellate Project to seal motion to withdraw as counsel of record, filed on 7-8-2003. |
Aug 14 2003 | Application to file document under seal denied The application of the California Appellate Project in San Francisco, received July 14, 2003 (but not yet filed), to seal the motion to withdraw and supporting declaration of appointed counsel of record Jeffrey J. Stuetz in People v. Ledesma, S014394, is denied, and the lodged application to seal is ordered returned. |
Aug 14 2003 | Counsel appointment order filed On the court's own motion, the order appointing Jeffrey J. Stuetz as counsel of record for appellant Fermin Rodriguez Ledesma, filed February 11, 1993, is hereby vacated with respect to the habeas corpus/executive clemency proceedings related to the above-referenced automatic appeal now pending in this court. Michael G. Millman, Executive Director of California Appellate Project, is hereby appointed to serve as interim H.C./executive clemency counsel of record for appellant Fermin Rodriguez Ledesma. The application of Jeffrey J. Stuetz to withdraw as counsel of record for appellant Fermin Rodriguez Ledesma, filed July 8, 2003, is dismissed as moot with regard to the capital-related habeas corpus/ executive clemency proceedings, and denied with regard to the automatic appeal now pending in this court. Mr. Stuetz shall continue to be responsible for all appellate duties specified in Supreme Court Policies Regarding Cases Arising From Judgments of Death, policy 3, standards 1-1 and 2-1. Jeffrey J. Stuetz is directed to deliver to Executive Director Michael G. Millman, within 30 days from the filing of this order, all habeas corpus investigation work product, trial files, investigation reports, and related materials that he has obtained from appellant Fermin Rodriguez Ledesma or his trial counsel, paralegals, experts and investigators, or from any other source. The request for appointment of "new counsel for appellant on his [] habeas corpus and executive clemency proceedings" is denied without prejudice. |
Aug 19 2003 | Counsel's status report received (confidential) from atty Stuetz. |
Sep 3 2003 | Compensation awarded counsel Atty Stuetz |
Sep 24 2003 | Compensation awarded counsel Atty Stuetz |
Apr 13 2006 | Oral argument letter sent advising counsel that case could be scheduled for oral argument as early as the late May calendar, to be held the week of May 30, 2006, 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. |
May 2 2006 | Case ordered on calendar May 30, 2006, at 1:00 p.m., in San Francisco |
May 8 2006 | Argument rescheduled Case is now to be argued on June 2, 2006, at 1:30 p.m., in San Francisco |
May 9 2006 | Filed letter from: Moona Nandi, Deputy Attorney General, dated May 9, 2006 re focus issues for oral argument. |
May 15 2006 | Filed letter from: attorney Jeffrey J. Stuetz, dated May 11, 2006, re focus issues for oral argument and request for 45 minutes for argument. |
May 22 2006 | Supplemental brief filed "Appellant's Supplemental Brief (Rules 29.1(d) & 36(d)) (2800 words; 14 pp.) |
Jun 2 2006 | Cause argued and submitted |
Aug 17 2006 | Opinion filed The judgment is reversed as to the robbery charge set forth in count three; the robbery special circumstance is set aside, and the judgment as to guilt and penalty is otherwise affirmed. Majority Opinion by George, CJ. ----- Joined by Kennard, Baxter, Werdegar, Chin, Moreno and Corrigan, JJ. |
Aug 31 2006 | Rehearing petition filed by appellant. (3056 words; 18 pp.) |
Sep 6 2006 | Time extended to consider modification or rehearing to November 15, 2006, or the date upon which rehearing is either granted or denied, whichever occurs first. |
Oct 25 2006 | Rehearing denied Petition for rehearing DENIED. |
Oct 25 2006 | Remittitur issued (AA) |
Oct 30 2006 | Received: acknowledgment of receipt of remittitur. |
Nov 1 2006 | Related habeas corpus petition filed (post-judgment) No. S147702 |
Nov 6 2006 | Order filed (150 day statement) |
Dec 20 2007 | Counsel appointment order filed The order appointing Michael G. Millman, as Executive Director of the California Appellate Project in San Francisco, to serve as interim habeas corpus/executive clemency counsel of record for condemned prisoner Fermin Rodriguez Ledesma, filed August 14, 2003, is hereby vacated. Terry J. Amdur is hereby appointed to represent condemned prisoner Fermin Rodriguez Ledesma for habeas corpus/executive clemency proceedings related to the above automatic appeal now final 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 prior habeas corpus/executive clemency counsel Jeffrey J. Stuetz's declaration, in support of his motion to withdraw, to the effect that he was unable to discharge his duty to investigate and, if appropriate, present a habeas corpus petition on behalf of condemned prisoner Fermin Rodriguez Ledesma, and this court's delay in appointing replacement habeas corpus/executive clemency counsel. |
Mar 12 2008 | Counsel's status report received (confidential) from attorney Amdur. |
Mar 20 2008 | Compensation awarded counsel Atty Amdur |
Apr 23 2008 | Counsel's status report received (confidential) from attorney Amdur. |
Nov 7 2008 | Compensation awarded counsel Atty Amdur |
Feb 19 2009 | Compensation awarded counsel Atty Amdur |
May 21 2009 | Compensation awarded counsel Atty Amdur |
Aug 19 2009 | Compensation awarded counsel Atty Amdur |
Nov 19 2009 | Compensation awarded counsel Atty Amdur |
Briefs | |
Apr 23 2001 | Appellant's opening brief filed |
Aug 21 2002 | Respondent's brief filed |
May 16 2003 | Appellant's reply brief filed |