Citation 51 Cal. 4th 620, 248 P.3d 651, 122 Cal. Rptr. 3d 117
People v. Lee
Filed 2/24/11
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S080550
v.
PHILIAN EUGENE LEE,
Riverside County
Defendant and Appellant.
Super. Ct. No. CR-67398
Defendant Philian Eugene Lee was convicted of first degree murder with personal
use of a firearm. (Pen. Code, §§ 187, subd. (a), 189, 12022.5, subd. (a).)1 The jury found
as a special circumstance that the murder was committed during the commission of an
attempted rape. (§ 190.2, subd. (a)(17)(C).) After a penalty trial, the jury returned a
verdict of death. The trial court denied defendant‟s automatic application to modify the
verdict (§ 190.4, subd. (e)), and imposed the death sentence. This appeal is automatic.
(§ 1239, subd. (b).) We affirm the judgment.
I.
THE FACTS
A.
Guilt Phase
1.
Prosecution case
On the evening of February 21, 1996, 18-year-old Devin Bates was with three
friends when he received a call from Jarrod Gordon, a 17-year-old friend from school.
After the call, the four young men drove to Jarrod‟s house in a car belonging to one of
1
All further undesignated statutory references are to the Penal Code.
1
Devin‟s friends.2 At the time, Jarrod was unable to walk due to a recent gunshot wound
to his back. He wore a plastic full-body brace on his torso, had braces on his legs, and
used a wheelchair.
When the group of five left Jarrod‟s house, Devin drove Jarrod in Jarrod‟s car with
the wheelchair in the trunk, and Devin‟s friends followed behind. At Jarrod‟s suggestion,
they drove to defendant‟s house in Moreno Valley, arriving between 10:00 and 11:00
p.m. Jarrod described defendant as a good friend. Devin had not met defendant before,
and defendant introduced himself to Devin as “Point Blank.”
After about an hour, the six young men left defendant‟s house.3 Devin drove
Jarrod‟s car, with Jarrod in the front and defendant in the back. The others again
followed in their car until that car was involved in an accident. After he stopped to
confirm no one had been injured, Devin left his three friends to deal with the accident and
drove, at Jarrod‟s direction, to the nearby home of a girl named “Mele.”4 Jarrod testified
Mele had paged him earlier in the evening.
While waiting for Mele to come outside, Jarrod told defendant and Devin he had
been sexually intimate with Mele two days earlier. He mentioned he wore two condoms
because he had heard a rumor that she was infected with the virus that causes AIDS.
Jarrod then handed out condoms. Devin took one, and defendant took one or more.
It was after midnight when Mele came outside wearing sweatpants, sneakers, and
a Pendleton-style jacket. She greeted the young men, accepted an invitation to hang out
with them, and sat behind the driver‟s seat. Devin had been acquainted with Mele since
elementary school, and it appeared to Devin that defendant also knew her.
2
In order to simplify our discussion we refer to defendant‟s companions and family
members by first name throughout this opinion.
3
Evidence presented during the penalty phase established that defendant was age 18
at the time of the incidents described above.
4
Mele‟s full name was Melemanunanilanililinokalani Kekaula. Her father testified
that her Hawaiian first name means “pretty songbird in the heavenly skies.”
2
After they drove around for a while, defendant suggested going to a lookout off
Pigeon Pass Road. While there, Jarrod fired defendant‟s handgun into the air several
times and saw defendant reload it. They then continued driving until they reached a
grocery store in Moreno Valley where Jarrod bought a large bottle of rum. Devin did not
drink because he was driving, but the others all drank from the bottle.
With no specific destination in mind, they reached San Bernardino. When they
turned to head back to Moreno Valley, Mele took over driving. From the backseat where
he was seated, Devin could see Jarrod “leaning toward” Mele and could see the two
kissing when the car was stopped. When they reached Moreno Valley, they stopped at a
gas station. While Mele was in the restroom, Jarrod told the others he had been “finger-
banging” her while they drove. Defendant responded, “Man, that‟s nothing. I also done
that.”
Once Mele returned, Mele and defendant discussed another lookout area off
Cactus Avenue, and Mele and Devin took turns driving there. When they arrived, Devin
parked near a water tower. By that time, Mele‟s speech was slurred. Mele, Jarrod, and
defendant continued to drink. The four discussed the rumor Jarrod had mentioned. Mele
denied having the virus that causes AIDS and said the rumor was started by jealous girls.
Defendant fired his handgun once or twice into the air. Mele and either Jarrod or
defendant vomited outside the car, so Devin moved it about 20 yards down the road. As
time passed, Mele exhibited more signs of intoxication. According to Devin, she became
“incoherent, out of it completely. Not passed out, but not aware of her surroundings.”
While outside the car, Mele fell and called to Devin for help. He helped her up and led
her to the backseat, where she lay on her back with her legs and feet hanging out of the
driver‟s side rear door.
Jarrod moved into the driver‟s seat, and Devin sat next to him. Devin then noticed
defendant standing near Mele‟s legs, fondling her breasts while Mele was “if not
3
completely out of it, very close to.”5 Defendant next removed Mele‟s shoes and pants
and threw them into the front passenger area while, according to Jarrod, Mele was
“[p]ushing [defendant] away.” Jarrod added that defendant did not “stop taking off her
clothes when Mele was pushing him away.” Devin heard a package being opened and
heard defendant say he was “about to get it, get some.” Defendant said something about
having a “gym hat” or “Jimmy hat” on, which Devin and Jarrod understood to mean a
condom. After defendant unzipped his pants, lowered them, and got on top of Mele, he
moved his hips up and down. Devin testified that, after about three minutes, Mele
“snapped out of it and forced [defendant] off of her.” According to Jarrod, while
defendant was on top of Mele, “[s]he was like telling him to get off,” saying “stuff like,
„get off,‟ „no.‟ ”
Jarrod testified that, after Mele pushed defendant, defendant “didn‟t get right off,”
and Devin ultimately agreed that defendant did not get off of Mele “directly,” but
remained on top of her for “a while.” According to Devin, while defendant was still on
top of Mele, she said they were mistaking her for a “ „toss-up whore,‟ ” and defendant
said something like “ „you know what we came up on the hill for.‟ ” Devin told a
detective that Mele said “somethin‟ about, „I‟ll give it away when I wanna give it
away.‟ ” Devin testified that while defendant was still on top of Mele, she seemed almost
to be in “a fit of rage, as if she was disgusted by what was going on.” While defendant
stayed on top of her, Mele continued to both verbally and physically indicate she wanted
him to get off of her. Once defendant did so, Mele sat up in the backseat, “primping
herself” as if she were “a mess” and talking loudly while “[v]ery angry and upset.”
5
The evidence regarding what occurred in the backseat of the car between
defendant and Mele was conflicting. Devin‟s testimony differed in some respects from
Jarrod‟s, and their trial testimony differed in some respects from what each had told
detectives shortly after the events occurred. In light of the sufficiency of the evidence
contentions that follow, we set forth the facts here in the light most favorable to the
judgment. (See Jackson v. Virginia (1979) 443 U.S. 307, 319-320; People v. Johnson
(1980) 26 Cal.3d 557, 578.)
4
Devin testified that, based on what he saw and heard during the encounter between
defendant and Mele at the Cactus Avenue lookout, he had “no doubt” that defendant had
attempted to have sex with Mele.
Saying he was going to “straighten [Mele] out,” defendant got out of the car,
walked to the side where Mele was sitting, and pulled her by the arm. Mele resisted, but
she was pulled from the car and then stumbled, falling to her knees while defendant held
her by her forearms. Defendant pulled Mele by her arms to the rear of the car. Devin
and Jarrod could see the two standing there and could hear them talking but could not
hear what they were saying at first. Mele made some hand or head gestures, and
defendant then raised his voice and said something like, “ „Is that it?,‟ ” “ „Is that how it‟s
gonna be?,‟ ” or “ „It‟s like that, huh.‟ ” Defendant then wrapped his left arm around
Mele‟s neck and held her facing him in the crook of his arm, drew his handgun from his
back pocket, put the gun against Mele‟s forehead, and fired. Mele fell motionless to the
ground. Defendant then “straddled her face” with his feet on either side, held the gun
about six inches from her face, and fired six or seven more times without pausing.
Defendant raced back to the car and got inside. When Devin asked why he had
shot Mele, defendant simply said, “Drive.” Jarrod drove to the first intersection, where
Devin took over. Jarrod asked defendant if he was sure Mele was dead. He also asked,
“So, is that why they call you Point Blank?” Defendant, who appeared calm, did not
respond to either question. Instead, he started singing, “almost like verses of rap music,
like making gestures towards what he had just done” or “giving himself praise.”
Defendant sang about how he “ „had to do what he had to do because he didn‟t get his nut
off,‟ ” which Devin took to mean defendant did not have an orgasm. Defendant also said,
“ „They‟re never gonna really have to make a rap about my name being Point Blank.‟ ”
He seemed “proud, almost gloating.” Jarrod testified defendant sang, “ „I didn‟t want to
shoot you, didn‟t want to kill you, bitch, but you wouldn‟t give me any pussy.‟ ”
5
According to Jarrod, defendant said he shot Mele “because she wouldn‟t have sex with
him,” “because she wouldn‟t give it up.”6
As they drove from the lookout, defendant threw Mele‟s clothes out the window,
and Jarrod threw out the rum though the bottle was one-third full. At defendant‟s
insistence, Devin and Jarrod each swore “on [his] mother[]” that he would not tell what
had happened. Defendant said he would trade the gun for marijuana and that he wanted
to pin the murder on someone else.
Devin arrived home at approximately 5:00 a.m. Crying and upset, he told his
parents what had happened. Devin was on juvenile probation at the time. After
showering and changing clothes, he and his parents went to the probation office where
Devin reported what he had witnessed. Devin then was taken to the Moreno Valley
Police Department where he was interviewed at length. At some point that day, Devin
showed detectives where Jarrod and Mele lived. With Devin‟s permission, the police
searched his bedroom, where they collected the clothes he had worn the night before. A
sealed Trojan condom was found in his pants pocket.
In the meantime, defendant had driven Jarrod home. Before they went to sleep,
defendant told Jarrod he was certain Mele was dead because “ „[i]f the first bullet didn‟t
get her, the second one did, if the second one didn‟t get her, then the third one did.‟ ” He
said that, as he shot Mele, he saw “pieces of her face coming off.” Jarrod‟s great aunt
woke the two at 7:00 a.m. and drove defendant home. Defendant removed his pants and
went to sleep. On her own initiative, defendant‟s girlfriend washed the pants. She
testified she and defendant never used condoms.
That morning, a jogger found Mele‟s body clad in a T-shirt, a Pendleton-style
jacket, underpants, and socks. Six empty .22-caliber shell casings were found near her
body. Another five empty casings were found about 30 yards away, and two puddles of
6
According to both Devin and Jarrod, defendant at some point also claimed he had
had “some kind of sex” with Mele.
6
what appeared to be vomit were seen near the five casings. A criminalist testified that, in
his opinion, all of the casings had been ejected from the same .22-caliber Beretta semi-
automatic handgun. No gun was found at the scene, and the murder weapon was never
found. According to witnesses, defendant had kept a .22-caliber handgun in his room.
That evening, the police interviewed Jarrod and searched his car. They found
latent fingerprints matching defendant‟s prints on the trunk lid, the passenger-side rear
panel, and the outside of the passenger-side rear door frame.
Police searched defendant‟s home the following day while defendant was not
there. In the dryer, they found defendant‟s pants and a sealed Trojan condom.
Defendant turned himself in a few hours after the search.
The forensic pathologist who examined Mele‟s body observed seven separate
bullet wounds to her forehead, cheeks, lips, and chin. The bullets had perforated her
skull and jaw and had fractured several teeth. The forehead wound was a contact wound.
Most of the others had been inflicted from a short distance away, probably within two
feet. Three of the wounds were fatal; the rest were survivable but could have been fatal if
left unattended; all could have been caused by a small-caliber handgun, such as a .22,
fired at close range. The pathologist noted that Mele had two crescent-shaped bruises
facing each other on her upper left arm, each about four centimeters in length and two
centimeters in width. The pathologist believed they were caused by “a significant degree
of force.” There was a smaller bruise on Mele‟s lower left arm, possibly caused by
someone grabbing and pulling her, and another bruise on her right knee. All of the
bruises had been sustained while Mele was alive, at any time between right before her
death and 48 hours before death. The pathologist observed no physical evidence of a
sexual assault and no trauma to Mele‟s breast or genital areas. A blood sample was taken
and evidence was gathered for a sexual assault kit.
7
2. Defense case
The toxicologist who examined the blood sample taken from Mele‟s body, and
determined it contained .14 percent alcohol at the time of her death, testified one would
need a blood-alcohol level of over .20 to be rendered unconscious or unable to be readily
aroused.
The defense also presented evidence of the crimes of moral turpitude that Devin
and Jarrod had committed. One of Jarrod‟s prior felonies involved sexual assault.
B. Penalty Phase
1. Prosecution case
The prosecution presented evidence of four incidents in which defendant engaged
in violent conduct, three of which occurred while he was a juvenile.
In February 1992, defendant, then age 14, refused to obey a school resource
officer‟s order to leave the Moreno Valley High School campus. Defendant struggled
when the officer grabbed him by the arm. The officer wrestled defendant to the ground
and handcuffed him with the assistance of two other school officials. During the
struggle, defendant‟s arm hit an official in the eye.
In October 1992, defendant and another teenager stopped two younger boys who
were riding bicycles. They demanded the boys get off their bicycles and then rode off on
them. One of the younger boys saw a knife handle tucked in the waistband of
defendant‟s companion.
In January 1993, at defendant‟s instigation, he and two younger boys robbed a
pizza deliveryman. They ordered pizzas by telephone. When the pizzas arrived, the
group repeatedly struck the deliveryman with sticks. They knocked the man to the
ground, grabbed the pizzas, and ran off. The deliveryman was able to return to his
workplace but collapsed once there. His injuries required medical treatment.
In July 1995, defendant was either the driver or passenger of a car that was driven
rapidly into a yard where people were having a barbecue. The guests, including
8
teenagers and young children, were forced to scatter to avoid being hit. The car ran into a
fence and drove off. The trial court took judicial notice that defendant pleaded guilty to
misdemeanor assault with a deadly weapon in January 1996 in connection with this
incident.
The prosecution also presented evidence of the impact of Mele‟s death on her
family. Family members described her loyalty to their family, her memorial service,
what holidays were like without her, and what they missed about her.
2. Defense case
The defense presented the following evidence through testimony from defendant‟s
father, Edward, his older brother, Lenier, Lenier‟s girlfriend, defendant‟s girlfriend, a
teacher, and mental health professionals.
Defendant‟s mother, Jimmie, drank alcohol and took prescription drugs, including
valium, while pregnant with defendant.7 Defendant was born in 1977 with the umbilical
cord wrapped around his neck. The cord temporarily stopped the flow of oxygen to his
brain. When defendant was a child, he suffered two serious head injuries, once when he
fell from a moving car and once when another boy hit him in the head with a golf club.
Defendant was a slow learner with behavior problems, and Edward spanked him in a
futile attempt to curb his aggressive behavior.
Edward worked nights, both parents regularly drank alcohol, and Jimmie used
drugs. The couple got into fights that defendant tried to stop by crying or jumping
between them. Defendant‟s parents separated in 1985 and soon divorced. Jimmie had
primary custody of their sons until 1987. In that year, she left the two boys in Edward‟s
custody one day and did not return. They lived with their grandmother for over a year
and then joined their father. By that time, Edward had moved to Moreno Valley and had
7
Defendant‟s mother collapsed in the courtroom on the first day of the evidentiary
portion of the trial and died four days later. The court declared a mistrial and empanelled
a new jury.
9
remarried. Defendant resented the new wife‟s rules, and Edward would “whoop” him
when he broke them. Every week Edward took the boys to see Jimmie. By that time, she
had been diagnosed with diabetes and, as a result, eventually lost both of her legs.
When defendant was age 14, a psychiatrist diagnosed him with attention deficit
disorder (ADD), conduct disorder, and learning disabilities. The psychiatrist testified that
ADD can be caused by fetal distress caused by an inability to breathe during delivery, as
well as by head injuries or prenatal exposure to alcohol and drugs. She prescribed a
stimulant that initially calmed defendant but then made him feel jumpy. She ordered him
to continue the medication, but her records reflect no further visits from him.
During the 1992-1993 school year, defendant was placed in a special education
program for students facing expulsion. He performed at more than two years below his
grade level, but he cooperated with school personnel, and if he took his medication he
could complete his assignments.
In May 1993, following an arrest, defendant was placed in a residential treatment
program. While there, defendant was referred to a psychiatrist who concluded he
displayed symptoms of ADD and hyperactivity. Defendant responded well to the
prescribed medication, showed leadership skills, and stayed in the program for nine
months. A social worker recommended an emancipation program because he felt Jimmie
and Edward lacked the necessary parental skills to deal with defendant. Defendant and
Edward decided against it, and defendant lived with Edward again. Defendant stopped
taking the medication in January 1994.
After leaving the program, defendant began drinking alcohol and using marijuana.
Edward “whooped” him, but defendant did not change his behavior. During a fight in
1994, defendant slapped Edward‟s face and then ran away. He did not return, but instead
lived on the streets for a number of months.
When defendant returned home, he lived with Edward, Lenier, and Lenier‟s
girlfriend. Defendant lovingly cared for his brother‟s son, and he loves his own son, who
10
was born in June 1996. Lenier and his girlfriend testified defendant had matured since
his arrest. Lenier said defendant had gained strength and wisdom, and he helped Lenier
deal with Jimmie‟s death. Edward said he would be devastated if defendant were
sentenced to death.
Dr. Cecil Whiting, an expert in clinical psychology, administered
neuropsychological tests to defendant. He concluded defendant suffers from brain
damage in three separate areas; that such damage can cause problems with learning,
sequential processing, following instructions, and controlling anger; and that alcohol
consumption exacerbates the effects of the damage. He noted defendant‟s brain damage
could have been caused by head injuries and by prenatal drug or alcohol exposure. Dr.
Whiting opined that conduct disorder was not a proper diagnosis because defendant‟s
behavior problems and inability to learn from experience resulted from brain damage, not
choice.
II.
DISCUSSION
A. Guilt Phase Claims
1. Sufficiency of the Evidence
Defendant contends the evidence was insufficient to support his first degree
murder conviction on either a premeditation theory or a felony-murder theory based on
attempted forcible rape. He also claims the evidence was insufficient to support the
special circumstance finding. He asserts that affirming the judgment under such
circumstances would violate his rights to due process and a fair trial under the Fifth and
Fourteenth Amendments to the United States Constitution and article I, section 15 of the
California Constitution. We conclude these claims fail.8
8
In this claim and most others on appeal, defendant contends the asserted error or
misconduct he raises infringed various of his state and federal constitutional rights to a
fair and reliable trial. What we stated in People v. Boyer (2006) 38 Cal.4th 412, 441,
footnote 17, applies in the present case: “In most instances, insofar as defendant raised
the issue at all in the trial court, he failed explicitly to make some or all of the
11
The standard of appellate review for determining the sufficiency of the evidence is
settled. On appeal, “ „we review the entire record in the light most favorable to the
judgment to determine whether it contains substantial evidence — that is, evidence that is
reasonable, credible, and of solid value — from which a reasonable trier of fact could
find the defendant guilty beyond a reasonable doubt.‟ [Citation.]” (People v. Avila
(2009) 46 Cal.4th 680, 701.) In conducting such a review, we “ „presume[] in support of
the judgment the existence of every fact the trier could reasonably deduce from the
evidence.‟ [Citation.] ” (Ibid.; see also Jackson v. Virginia, supra, 443 U.S. at pp. 319-
320.) “Conflicts and even testimony which is subject to justifiable suspicion do not
justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury
to determine the credibility of a witness and the truth or falsity of the facts upon which a
determination depends. [Citation.] We resolve neither credibility issues nor evidentiary
conflicts; we look for substantial evidence.” (People v. Maury (2003) 30 Cal.4th 342,
403.) These same principles apply to review of the sufficiency of the evidence to support
a special circumstance finding. (Id. at p. 396; People v. Ochoa (1998) 19 Cal.4th 353,
413-414.)
The information charged the special circumstance of murder during a forcible rape
or attempted forcible rape. The special circumstance was tried solely on the theory of
constitutional arguments he now advances. In each instance, unless otherwise indicated,
it appears that either (1) the appellate claim is of a kind (e.g., failure to instruct sua
sponte; 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, insofar as wrong 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. [Citations.] [¶] In the latter instance, of course, rejection, on the merits, of a
claim that the trial court erred on the issue actually before that court necessarily leads to
rejection of the newly applied constitutional „gloss‟ as well. No separate constitutional
discussion is required in such cases, and we therefore provide none.”
12
attempted forcible rape.9 In 1996, forcible rape was defined, as it is today, as “an act of
sexual intercourse accomplished with a person not the spouse of the perpetrator . . . [¶] . .
. [¶] . . . [w]here it is accomplished against a person‟s will by means of force, violence,
duress, menace, or fear of immediate and unlawful bodily injury on the person or
another.” (§ 261, subd. (a)(2).) “An attempt to commit rape has two elements: the
specific intent to commit rape and a direct but ineffectual act done toward its
commission.” (People v. Guerra (2006) 37 Cal.4th 1067, 1130.) Intent to commit
forcible rape requires (1) the intent to commit the act of sexual intercourse; (2) against
the will of the victim (ibid.); (3) by any of the means described in section 261,
subdivision (a)(2). (See People v. DePriest (2007) 42 Cal.4th 1, 48.) “The act must be a
direct movement beyond preparation that would have accomplished the crime of rape if
not frustrated by extraneous circumstances.” (People v. Guerra, supra, 37 Cal.4th at p.
1130.)
Here, the prosecution presented evidence that defendant approached Mele and
began fondling her breasts while she was nearly “completely out of it” from alcohol
consumption. She was on her back with her legs hanging out the rear door of Jarrod‟s
vehicle when defendant stood at her legs and took off her shoes and pants. As defendant
removed her clothes, Mele was “[p]ushing him away,” but he continued taking off her
clothes.
Defendant unzipped his pants, put on a condom, and said he was about to “get
some.” With his pants lowered, he straddled Mele and moved his hips up and down with
his chest and “frontal area” touching Mele‟s chest and vaginal area. Defendant‟s left hand
was moving “by his area where his penis [was]” and where Mele‟s “vagina would be at.”
9
At the close of the prosecution‟s case-in-chief, the prosecutor moved to amend the
information to strike the reference to subdivision (a)(2) of section 261, in order to permit
argument and instruction on the theory of attempted rape of an intoxicated person under
subdivision (a)(3) of that section. The trial court denied the motion.
13
After about three minutes, Mele “snapped out of it and forced [defendant] off of her” by
pushing him. As she pushed, she angrily asked, “ „Do you think I‟m a toss-up whore or
something?‟ ” Mele “verbally protest[ed] him being on top of her,” “[a]lmost [in] a fit of
rage, as if she was disgusted by what was going on.” Defendant responded by saying,
“ „[Y]ou know what we came up on the hill for.‟ ” While Mele was “telling [defendant]
to get off” and saying “ „no,‟ ” she continued to “physically respond . . . to try to get him
off of her.” Defendant was 6 feet two inches tall and weighed 270 pounds; Mele was
five feet three inches tall and weighed 152 pounds.
The jury heard evidence from both Devin and Jarrod that, as Mele was pushing
defendant away, he “didn‟t get right off,” or get off “directly,” that he stayed on Mele for
“a while.” Devin had “no doubt” that defendant “was attempting to have sex with Mele.”
After Mele was able to push defendant off of her, she appeared angry. She talked
loudly as she “primp[ed] herself . . . . as if she . . . wanted to have a better appearance.”
Devin turned on the dome light “to grab control of the situation,” but defendant turned it
off, saying he was going to “straighten [Mele] out.” Defendant got out of the car, went to
Mele‟s side, and pulled her arms. She resisted but was forced out of the car and then fell
to her knees. Near the rear of the car defendant and Mele exchanged words Devin could
not hear, with Mele gesturing with her hands and head, until defendant raised his voice
and said something like, “ „Is that how it‟s gonna be?‟ ” He then shot Mele in the face
seven times.
As they drove away, Jarrod heard defendant say he had shot Mele “because she
wouldn‟t have sex with him,” “because she wouldn‟t give it up.” Defendant sang “verses
of rap music, like making gestures towards what he had just done,” and “giving himself
praise.” He sang about how “he had to do what he done because he didn‟t get his nut
off.” He also sang, “ „I didn‟t want to shoot you, didn‟t want to kill you, bitch, but you
wouldn‟t give me any pussy.‟ ”
14
Evidence presented by the pathologist who examined Mele‟s body revealed that “a
significant amount of force” would have been required to produce the crescent-shaped
bruises on her upper arm and that those bruises could have been caused by a 270-pound
man lying on top of Mele, supporting himself by holding her arms and exerting “a strong
grasp and some additional weight.”
The above evidence, and the facts that may reasonably be deduced from that
evidence, support the jury‟s determinations that defendant intended to have sexual
intercourse with Mele against her will10 by means of force, that he engaged in a direct but
ineffectual act aimed at raping Mele, and that he murdered her during the commission of
an attempted forcible rape. The circumstance that Mele‟s underpants were on her body
when found, and that no semen, other fluid, or genital trauma was found on her body, do
not undermine this conclusion. (See People v. Guerra, supra, 37 Cal.4th at pp. 1130-
1131 [physical evidence of a sexual assault is not a prerequisite to finding intent to rape].)
Defendant reargues the evidence but fails to overcome the presumption favoring the
jury‟s findings of fact. Viewing the evidence in the light most favorable to the
prosecution and presuming in support of the judgment the existence of every fact the jury
could reasonably deduce from the evidence, we conclude there was sufficient evidence
from which the jury could have concluded that defendant forcibly attempted to rape Mele
and killed her because she was resisting his attempt to have sexual intercourse with her.11
10
The jury correctly was instructed that “against one‟s will” means “without the
consent of the alleged victim.” (See People v. Giardino (2000) 82 Cal.App.4th 454, 460;
People v. Cicero (1984) 157 Cal.App.3d 465, 480.) The trial court then defined consent
for the jury, pursuant to CALJIC No. 1.23.1 as “positive cooperation in an act or attitude
as an exercise of free will. The person must act freely and voluntarily and have
knowledge of the nature of the act or transaction involved.” CALJIC No. 1.23.1 is based
on the statutory language in section 261.6. In part II.A.2., infra, we reject defendant‟s
contention that the trial court‟s instructions on consent were inadequate.
11
Defendant does not argue that, assuming there was sufficient evidence of
attempted rape, the evidence was insufficient to establish that the murder was committed
“while [he] was engaged in . . . the commission of, or attempted commission of, or the
15
Accordingly, defendant‟s attack on the sufficiency of the evidence to support the felony-
murder theory of first degree murder and the attempted-rape special circumstance fails.
Because we find substantial evidence supports the conclusion that Mele did not
passively acquiesce in defendant‟s attempt to accomplish sexual intercourse and that he
ignored her expressed unwillingness to engage in sexual intercourse with him, we need
not address defendant‟s argument that, in amending the rape statute in 1982 to define
consent as “positive cooperation in act or attitude pursuant to an exercise of free will”
(§ 261.6), the Legislature intended that “mere passivity or assent on the part of the
„victim‟ was not excluded from the meaning of „consent‟ as long as it was not the product
of force, violence, duress, menace, or fear.” For the same reason, we need not address
defendant‟s claim that, within the meaning of section 261.6, “passive acquiescence alone
does not equate with „without the person‟s consent‟ or „against a person‟s will.‟ ”
(Capitalization omitted.)
It is of no consequence that Devin‟s testimony differed in some respects from
Jarrod‟s, or that the testimony of each differed to a certain extent from what he had told
police, or that Devin was impeached on a minor matter with his preliminary examination
testimony.12 It was for the jury to decide whether these witnesses were credible, either in
whole or in part. (See People v. Maury, supra, 30 Cal.4th at p. 403.) Nor is it
significant that Jarrod was impeached with his statement to Detective Thompson that he
did not see Mele‟s clothes come off because he “wasn‟t . . . paying attention.” Jarrod
admitted during cross-examination that he lied to police on some matters because he was
in shock and just said whatever came to his mind. Moreover, because Devin testified that
immediate flight after committing, or attempting to commit,” a rape with the meaning of
the felony-murder special circumstance. (§ 190.2, subd. (a)(17; see People v. Green
(1980) 27 Cal.3d 1, 60-61.)
12
The parties stipulated that, at the preliminary examination held several months
after the murder, Devin had testified he could not see whether defendant had his zipper or
his pants down while on top of Mele.
16
Jarrod helped defendant take Mele‟s clothes off, the jury reasonably could have
concluded Jarrod lied to police about what happened when the clothes came off to
minimize his culpability in the events that ensued.
We next address defendant‟s claim that the evidence was insufficient to establish
that he premeditated Mele‟s killing.
In the context of first degree murder, “ „premeditated‟ means „considered
beforehand,‟ and „deliberate‟ means „formed or arrived at or determined upon as a result
of careful thought and weighing of considerations for and against the proposed course of
action.‟ [Citation.]” (People v. Mayfield (1997) 14 Cal.4th 668, 767.) “The process of
premeditation and deliberation does not require any extended period of time. „The true
test is not the duration of time as much as it is the extent of the reflection. Thoughts may
follow each other with great rapidity and cold, calculated judgment may be arrived at
quickly . . . .‟ [Citations.]” (Id. at p. 767.) “In [People v. Anderson (1968) 70 Cal.2d 15],
we „identified three categories of evidence relevant to resolving the issue of
premeditation and deliberation: planning activity, motive, and manner of killing.‟
[Citation.] However, these factors are not exclusive, nor are they invariably
determinative. [Citation.] „ “ „Anderson was simply intended to guide an appellate
court‟s assessment whether the evidence supports an inference that the killing occurred as
the result of preexisting reflection rather than unconsidered or rash impulse.
[Citation.]‟ ” ‟ [Citation.]” (People v. Combs (2004) 34 Cal.4th 821, 850.) Here, the
evidence supports each of the factors identified above.
First, defendant brought a loaded handgun with him on the night Mele was killed,
indicating he had considered the possibility of a violent encounter. (People v.
Steele (2002) 27 Cal.4th 1230, 1250 [evidence defendant carried the fatal knife into the
victim‟s home makes it “ „reasonable to infer that he considered the possibility of
homicide from the outset‟ ”].) After Jarrod fired a few shots from the gun at the first
17
lookout, defendant reloaded the gun, supporting an inference that he had brought extra
ammunition as well.
Second, the sequence of events, including defendant‟s pulling Mele from the car
and shooting her after his frustrated sexual encounter, along with his statements that he
killed her “because he didn‟t get his nut off” and because “she wouldn‟t give it up,” was
more than sufficient for the jury to find that defendant killed Mele because she refused to
have sex with him. In addition, defendant‟s nonresponse to Jarrod‟s question “So, is that
why they call you Point Blank?” and his rap verse “ „They‟re never gonna really have to
make a rap about my name being Point Blank,‟ ” support the conclusion that he killed
Mele in a particular manner to live up to his nickname.
Third, the manner of killing was calm and exacting, supporting a conclusion that it
was the result of preexisting thought and reflection rather than an unconsidered rash
impulse. After Mele refused to have sex with him, defendant announced his intention to
“straighten her out,” forcibly removed her from the vehicle, and pulled her to the rear of
the car. A brief conversation ensued, ending in defendant saying something like “ „It‟s
like that, huh.‟ ” Defendant then restrained Mele with his left arm, pulled his gun from
his pocket, held it against her forehead, and fired once. When Mele fell to the ground,
defendant straddled her and fired six more shots with the gun inches from her face. On
the way home, defendant appeared “calm and collect[ed].” The jury could have
concluded defendant‟s statement about his intent to “straighten [Mele] out,” together with
the multiple close-range shots to her face and head, indicated a premeditated and
deliberate intent to kill. (People v. Welch (1999) 20 Cal.4th 701, 759 [evidence
defendant “straddled [the victim‟s] body after he had shot her once and shot her again”
supported finding of premeditated and deliberate murder]; see also People v. Koontz
(2002) 27 Cal.4th 1041, 1082 [firing at a vital area at close range supports finding of
premeditation and deliberation]; People v. Mayfield, supra, 14 Cal.4th at p. 767 [shooting
victim in the face supports inference of preexisting intent to kill].) Defendant‟s later
18
statement to Jarrod, that “ „[i]f the first bullet didn‟t get her, the second one did, if the
second one didn‟t get her, then the third one did,‟ ” supports the reasonable inference that
defendant deliberately fired multiple shots because he “did not want merely to wound
[Mele]; he wanted to make certain [she] died.” (People v. Bolin (1998) 18 Cal.4th 297,
332.)
We conclude there was sufficient evidence from which the jury could have found
defendant guilty of first degree murder on a premeditation and deliberation theory.
2. Adequacy of Instructions Defining Consent for Attempted Rape
Defendant contends the trial court‟s instructions improperly allowed the jury to
find that he committed an attempted forcible rape even if it concluded Mele passively
acquiesced in his sexual advances and that he “neither knew nor could reasonably be
expected to know (from his own conduct or hers) that she did not want to have sex.” He
claims the trial court had a duty to instruct on its own motion that passive or unexpressed
assent can be consent, that “positive cooperation in an act or attitude as an exercise of
free will” does not require any physical or verbal expression of cooperation, and that the
alleged victim must express her lack of consent in a manner such that a reasonable person
would perceive she did not consent. Defendant argues the failure to so instruct
prejudiced him because his jury reasonably could have concluded that Mele initially
passively acquiesced in his sexual advances and that he stopped trying to have sex with
her as soon as she “snapped out of it” and pushed him off of her. He asserts the
instructions improperly reduced the prosecution‟s burden of proof and denied him due
process of law, a fair trial, the right to present a defense, a trial free from improper
lessening of the prosecution‟s burden of proof, and a reliable and nonarbitrary
determination of guilt, death eligibility, and penalty in violation of his rights under the
Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and
article I, sections 1, 7, 15, 16 and 17 of the California Constitution.
19
We conclude defendant forfeited this claim by failing to object to the trial court‟s
consent instruction or to request any modification or amplification of it at trial. A trial
court has no sua sponte duty to revise or improve upon an accurate statement of law
without a request from counsel (People v. Kelly (1992) 1 Cal.4th 495, 535), and failure to
request clarification of an otherwise correct instruction forfeits the claim of error for
purposes of appeal. (People v. Rundle (2008) 43 Cal.4th 76, 151; People v. Samaniego
(2009) 172 Cal.App.4th 1148, 1163.) Here, with only minor exceptions, the challenged
portion of CALJIC No. 1.23.1, which defines consent, tracks the language of section
261.6. Section 261.6 provides in pertinent part: “In prosecutions under Section 261 . . . in
which consent is at issue, „consent‟ shall be defined to mean positive cooperation in act
or attitude pursuant to an exercise of free will.” CALJIC No. 1.23.1, as given in this
case, informed the jury that “consent means positive cooperation in an act or attitude as
an exercise of free will.” (See CALJIC No. 1.23.1 (6th ed. 1996).)13 As given, CALJIC
No. 1.23.1 correctly expressed the law. If defendant believed the instruction on consent
required elaboration or clarification, he was obliged to request such elaboration or
clarification in the trial court. (People v. Rundle, supra, 43 Cal.4th at p. 151; People v.
Hart (1999) 20 Cal.4th 546, 622.)
Were we to address the merits of defendant‟s contention regarding the trial court‟s
alleged failure to give clarifying instructions on consent, we would find that the jury
instructions on consent were adequate in this case.
The jury was instructed as follows on the law of attempt, the crime of forcible
rape, and the intent required for attempted rape: “An attempt to commit a crime consists
of two elements, namely, a specific intent to commit the crime, and a direct but
ineffectual act done towards its commission. [¶] In determining whether such an act was
done, it is necessary to distinguish between mere preparation on the one hand, [and] the
13
Defendant does not argue the consent instruction given was erroneous on the basis
of the minor differences between it and the corresponding statutory language.
20
actual doing of the criminal deed on the other. Mere preparation which may consist of
planning the offense or devising, obtaining, or arranging the means for its commission is
not sufficient to constitute an attempt. However, acts of a person who intend[s] to
commit a crime will constitute an attempt where those acts clearly indicate a certain
unambiguous intent to commit that specific crime. These acts must be an immediate step
in the present execution of the criminal design, the progress of which would be
completed unless interrupted by some circumstance not intended in the original design.
[¶] Rape is defined as follows: [¶] Every person who engages in an act of sexual
intercourse with another person who‟s not the spouse of the perpetrator accomplished
against that person‟s will by means of force, violence, duress or fear of immediate and
unlawful bodily injury to that person is guilty of rape. [¶] Any sexual penetration,
however slight, constitutes engaging in an act of sexual intercourse. Proof of ejaculation
is not required. [¶] „Against the person‟s will‟ means without the consent of the alleged
victim. [¶] „Force‟ means that amount of physical force required in the circumstances to
overcome the victim‟s resistance. [¶] „Duress‟ means a direct or implied threat of force,
violence, danger, or retribution sufficient to coerce a reasonable person of ordinary
susceptibilities to perform an act which she would not have otherwise performed or
acquiesce in an act [to] which she otherwise would not have submitted. The total
circumstances, including the age of the alleged victim and her relationship to the
defendant are factors to consider in apprising the existence of duress. [¶] The fear of
immediate and unlawful bodily injury must be actual and reasonable under the
circumstances. [¶] In order to prove the offense of attempted rape, each of the following
elements must be proved: 1. A direct but ineffectual act was committed by the defendant
toward the commission of rape of the alleged victim; 2. At the time of the act, the
defendant had the specific intent to rape the alleged victim[.] [¶] [I]n order to prove
defendant had the specific intent to rape, each of the following elements must be proved:
1. The defendant had the specific intent to engage in an act of sexual intercourse with the
21
alleged victim; 2. The defendant had the specific intent to engage in an act of sexual
intercourse against the will of the victim; and 3. The defendant had the specific intent to
accomplish the act of sexual intercourse by means of force, violence, duress, menace or
fear of immediate or unlawful bodily injury.”
Pursuant to CALJIC No. 1.23.1, the jury next was instructed that consent in the
context of rape means “positive cooperation in an act or attitude as an exercise of free
will. The person must act freely and voluntarily and have knowledge of the nature of the
act or transaction involved.” Based on CALJIC No. 10.65, the jury also was given the
following modified Mayberry14 instruction regarding the reasonable and good faith belief
in consent as a defense to attempted rape: “In the crime of attempted rape, criminal
intent must exist at the time of the commission of the attempted rape. There‟s no
criminal intent if the defendant had a reasonable and good faith belief that the other
person voluntarily consented to engage in sexual intercourse. Therefore, a reasonable
and good faith belief that there is voluntary consent is a defense to such a charge. [¶]
However, a belief that is based on ambiguous conduct by an alleged victim that is the
product of force, violence, duress or fear of immediate and unlawful bodily injury on the
person or another is not a reasonable and good faith belief. [¶] If after a consideration of
all of the evidence you have a reasonable doubt that the defendant had the criminal intent
at the time of the attempted act of sexual intercourse, you must find the special
circumstance not true.”
These instructions were sufficient to apprise the jury of the relevant principles of
law on the issues of intent and consent in the present case. The defense to the attempted
rape charge was based on defendant‟s mental state. Under these standard instructions,
which tracked the statutory language on consent and mental state, defendant‟s jury could
consider all the circumstances in the case in determining whether defendant intended to
14
People v. Mayberry (1975) 15 Cal.3d 143.
22
accomplish sexual intercourse without Mele‟s consent. The instructions permitted the
jury to consider defendant‟s argument that the law does not require “that before a man
can start to make some kind of a sexual advance toward a woman that she has to say
yes.” The instructions similarly permitted the jury to consider defendant‟s argument that
he got the wrong impression about whether Mele was willing to have sex with him, and
his related argument that there was “a difference between a man who maybe hasn‟t been
told yes but starts making some sexual advance and is told no and makes a choice to stop,
[and] the man who doesn‟t care about consent or no consent and does intend to use force
or violence.” Reviewing the instructions as a whole, as we must (People v. Whisenhunt
(2008) 44 Cal.4th 174, 220), we find no “reasonable likelihood that the instruction [on
consent] caused the jury to misconstrue or misapply the law.” (People v. Thornton
(2007) 41 Cal.4th 391, 436.) Accordingly, we conclude the trial court did not have a sua
sponte duty to further instruct that “positive cooperation in act or attitude” includes
passive acquiescence or assent, or to elaborate that the jury could not find a forcible rape
if Mele merely was passive and defendant did not know and had no reason to know she
did not consent.
Having concluded the instructions on consent and mental state were adequate, and
having rejected defendant‟s claims to the contrary, we do not reach the question whether
an instruction that consent may be proved by evidence of an alleged rape victim‟s passive
acquiescence would be consistent with the intent of the Legislature as expressed in
section 261.6. We likewise need not address defendant‟s claim that, if section 261.6
excludes passive acquiescence from the definition of consent, retroactive application of
that definition to him constitutes an unforeseeable judicial enlargement of a criminal
statute in violation of his rights to notice and an opportunity to defend the charges against
him.
For the same reason, we need not reach defendant‟s claim that construing section
261.6 to exclude passive assent from the meaning of consent removes the requirement of
23
a mens rea, or culpable mental state, from the crime of forcible rape, thereby violating
due process of law by “ „ “offend[ing] some principle of justice so rooted in the traditions
and conscience of our people as to be ranked as fundamental.” ‟ ” (McMillan v.
Pennsylvania (1986) 477 U.S. 79, 85.) We add that, here, the jury was instructed that to
find an attempted forcible rape it must find defendant intended to use force, violence,
duress, or fear to overcome Mele‟s will (People v. Gonzalez (1995) 33 Cal.App.4th
1440, 1443-1444),15 and, additionally, that a good faith and reasonable belief in lack of
consent is a defense to attempted rape; this ensured defendant would not be found guilty
of that crime unless the jury concluded he acted with a culpable mental state. (People v.
Williams (1992) 4 Cal.4th 354, 360; People v. Mayberry, supra, 15 Cal.3d at pp. 154-
155; see also People v. Gonzalez, supra, 33 Cal.App.4th at pp. 1443-1444 .)
Furthermore, as noted above, the evidence was more than sufficient to establish that
defendant ignored Mele‟s expressed unwillingness to engage in sexual intercourse.
Defendant finally contends section 261.6 and CALJIC No. 1.23.1 violate the due
process clause of the Fourteenth Amendment by creating a mandatory presumption that
an alleged rape victim has not consented unless she expressly communicates her consent,
and by relieving the prosecution of the burden of proving nonconsent in cases where the
victim is passive. (See Carella v. California (1989) 491 U.S. 263, 265; Francis v.
Franklin (1985) 471 U.S. 307, 313-314.) This claim lacks merit because CALJIC No.
1.23.1 does not tell a jury that it must presume lack of consent if the alleged victim has
not actively expressed consent. The instruction simply explains what consent means in
the context of forcible rape, without unconstitutionally shifting the burden of proving
consent to defendant. (People v. Gonzalez, supra, 33 Cal.App.4th at p. 1443.) The jury
15
The question for a jury considering the charge of forcible rape is “whether
defendant used force to accomplish intercourse with [the victim] against her will, not
whether the force he used overcame [her] physical strength or ability to resist him.”
(People v. Griffin (2004) 33 Cal.4th 1015, 1028.)
24
was instructed that defendant was presumed innocent until the People proved him guilty
beyond a reasonable doubt; that the People had the burden of proving beyond a
reasonable doubt the truth of the special circumstance of murder during an attempted
rape; that the prosecution had to prove defendant “had the specific intent to engage in an
act of sexual intercourse against the will of the alleged victim”; and that “ „against that
person‟s will‟ means without the consent of the alleged victim.” The instructions as a
whole ensured the jury understood that the prosecution at all times bore the burden of
proving each element of the charged offense and the special circumstance allegation,
including, in the context of attempted rape, that defendant intended to have sex with Mele
against her will and without her consent.
3. Evidence of Defendant’s Nickname
Defendant‟s nickname was “Point Blank.” He contends the trial court
prejudicially erred by admitting evidence of his nickname. He argues, as he did in the
trial court, that the evidence was irrelevant, impermissible character evidence of a
“propensity to kill” in a particular manner and that the evidence had no probative value
on the issue of identity. Alternatively, assuming his nickname had some probative value,
defendant contends its prejudicial effect outweighed its probative value. He claims
admission of his nickname violated his federal and state constitutional rights to “a fair
trial, due process, [the] right to present a defense, a trial free from improper lessening of
the prosecution‟s burden of proof, and a reliable and nonarbitrary determination of guilt,
death eligibility, and penalty.” For the reasons stated below, we conclude the trial court
did not err by admitting defendant‟s nickname into evidence.
In the trial court defendant moved to exclude any evidence related to his gang
membership, including his nickname. The prosecutor conceded there was no evidence
that Mele‟s killing was gang related and agreed not to present evidence that defendant
claimed membership in a gang. The prosecutor then argued, and the trial court agreed,
25
that evidence of the nickname was relevant and admissible to prove defendant was the
person to whom Devin was introduced hours before Mele was killed and to prove
defendant‟s intent when he shot Mele. Pursuant to Evidence Code section 352, the court
specifically “engaged in the weighing process” and found the proffered evidence‟s
“probative value does exceed the prejudicial effect.” It then stated that it expected the
evidence to be limited to Devin‟s testimony that defendant introduced himself as “Point
Blank,” and that, after the murder, defendant did not answer when asked, “[I]s that why
they call you Point Blank?”
“Evidence is relevant if it tends „ “logically, naturally and by reasonable
inference” to establish material facts such as identity, intent, or motive.‟ ” (People v.
Williams (2008) 43 Cal.4th 584, 633; see Evid. Code, § 210.) Even if relevant, evidence
may be excluded in the trial court‟s discretion “if its probative value is substantially
outweighed by the probability that its admission will (a) necessitate undue consumption
of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of
misleading the jury.” (Evid. Code, § 352.) Rulings regarding relevancy and Evidence
Code section 352 are reviewed under an abuse of discretion standard. (People v. Brown
(2003) 31 Cal.4th 518, 550-551; People v. Gurule (2002) 28 Cal.4th 557, 654-655.)
Here, while evidence of defendant‟s nickname was relevant to the issue of identity
within the meaning of Evidence Code section 210, we agree with defendant that evidence
of his nickname was cumulative of other evidence of identity and therefore had minimal
probative value.
However, we conclude evidence of defendant‟s nickname was relevant and
extremely probative with regard to the intent with which defendant shot Mele and
whether the killing was premeditated and deliberate. The prosecution‟s theory was that
defendant shot Mele the way he did, with seven shots to her face at close range, to live up
to his nickname. In that regard, in her closing argument, the prosecutor reminded the jury
that, immediately after the murder, defendant did not respond when Jarrod asked, “So, is
26
that why they call you Point Blank?”16 The prosecutor also reminded the jury that
defendant sang a gloating rap song about the shooting and said, “ „They‟re never gonna
really have to make a rap about my name being Point Blank.‟ ” The next words of the
prosecutor‟s argument to the jury were, “Does that show his express intent to kill?
Absolutely. Absolutely.”
Both defendant‟s adoptive admission that the manner in which he killed Mele was
why he was called Point Blank, and his statement about the lack of a need to make up a
rap song about his name being Point Blank, were highly probative to the mental state
issues in this case. Reference to defendant‟s nickname, including the fact that he had
introduced himself to Devin as “Point Blank” hours before he killed Mele, was necessary
for the jury to understand the significance of defendant‟s statements after he shot Mele
and their tendency to support the prosecution‟s theory that defendant intended to kill
Mele in a particular way to prove he deserved his nickname. (See People v. Brown,
supra, 31 Cal.4th at p. 551 [reference to defendant‟s nickname necessary to render
understandable the testimony of a witness].)
Defendant next contends that, even if evidence of his nickname had some
probative value, it should have been excluded under Evidence Code section 352.
Specifically, he claims evidence of his nickname was unduly prejudicial because it
suggested gang origins and prior criminal activity. We are not persuaded that defendant‟s
nickname alone, without any evidence of gang membership, had a tendency to suggest he
belonged to a gang when he shot Mele. However, assuming the nickname did imply
either gang membership or prior criminal activity, the trial court did not abuse its
16
Evidence of Jarrod‟s question was admissible as an adoptive admission because
jurors could conclude defendant heard and understood the question and, by his silence,
adopted it as his own statement. (Evid. Code, § 1221; People v. Davis (2005) 36 Cal.4th
510, 535.) We note that defendant‟s trial counsel acknowledged that, had defendant said,
“Now you know why they call me Point Blank,” evidence of that hypothetical statement
would have been relevant.
27
discretion in admitting the nickname. The trial court carefully scrutinized the proffered
evidence and concluded its prejudicial effect did not outweigh its probative value.
(People v. Hernandez (2004) 33 Cal.4th 1040, 1049 [evidence of gang membership is
admissible to prove specific intent, means of applying force, or other issues pertinent to
guilt of the charged crime].) We conclude the trial court did not abuse its discretion by
finding the risk that the jury would improperly infer criminal disposition from
defendant‟s nickname did not substantially outweigh the fact that evidence of defendant‟s
nickname was highly probative because it uniquely tended to prove defendant had a
specific reason for shooting Mele multiple times at very close range. We note that, in
order to minimize the prejudicial impact of the evidence, the prosecutor avoided any
reference to the subject of gangs throughout the trial by reminding the court to instruct
witnesses not to mention defendant‟s gang affiliation,17 and, at defendant‟s request, the
jury was instructed not to consider the evidence of defendant‟s nickname “to prove that
defendant is a person of bad character, has a disposition to commit crimes, or has ever
acted in a manner consistent with this nickname.”
Defendant next contends he is entitled to relief because the limiting instruction
read to the jury was hopelessly confusing and internally contradictory. We disagree.
The challenged instruction read as follows: “Evidence has been introduced for the
purpose of showing that the defendant had a nickname. This evidence, if believed, was
introduced for a limited purpose and may only be considered by you for that purpose.
The limited purpose for which this evidence was introduced was to prove that (1) the
defendant was the person introduced to Devin Bates on February 21st, 1996, and (2) the
17
The only direct reference to gangs at trial was a deputy sheriff‟s testimony that he
was assigned to a gang unit when he contacted Jarrod, searched defendant‟s house, and
arrested defendant. The jury was instructed that the evidence the deputy was a member
of a gang unit “may not be considered by you nor may you draw an inference therefrom,
that the defendant or the crime charged here is gang related in any way. In determining
the guilt of the defendant in this case, you are to disregard this evidence entirely.”
28
defendant intended to kill Mele Kekaula. [¶] You are not to consider this evidence for
any other purpose. You are not permitted to consider this evidence as proof that
defendant killed, raped or attempted to rape Ms. Kekaula. Further, this evidence may not
be considered by you to prove that defendant is a person of bad character, has a
disposition to commit crimes, or has ever acted in a manner consistent with this
nickname. No evidence has been presented that on any prior occasion defendant acted in
a manner referenced by the nickname. [¶] For the limited purpose for which you may
consider this evidence, you must weigh it in the same manner you weigh all other
evidence in the case.”
The defense drafted the above instruction and requested it be given, even though
the trial court commented that instructing the jury not to use the evidence to prove
character or propensity might “undo any value” from a limiting instruction. Because
defendant made a “conscious and deliberate tactical choice” (People v. Wader (1993) 5
Cal.4th 610, 658) to request the challenged instruction, any error was invited. (People v.
Thornton, supra, 41 Cal.4th at p. 436.) In any event, the instruction correctly told the
jurors they could not use the nickname as proof that defendant killed or attempted to rape
Mele, or as proof that defendant was a person of bad character.
Defendant next argues the prosecutor exacerbated the prejudicial effect of the
evidence by repeatedly referring to the nickname and linking it to the manner of the
killing, rendering his trial fundamentally unfair in violation of his federal constitutional
right to due process, but we find no “gratuitous use of, or reference to, the nickname.”
(People v. Brown, supra, 31 Cal.4th at p. 551.) Far from “permeat[ing]” the trial, as
defendant argues, any references to the nickname that went beyond the trial court‟s ruling
on the motion in limine were either minimal, inadvertent, objected to and stricken, or
elicited by the defense. Devin twice used the nickname in response to questions, despite
apparently having been warned by the prosecutor not to do so. The prosecutor twice used
the name when examining witnesses, but, after a defense objection, she agreed the
29
reference was improper and promised to tread “very carefully on this issue.” The trial
court sustained defendant‟s objection to the prosecutor‟s questioning of a witness
regarding whether defendant had a hat with “Point Blank” on it and admonished the jury
not to consider any such evidence. Other testimony about the name was elicited by the
defense through the cross-examination of Detective Fernandez regarding his interview
with Devin after the murder.18 We are convinced the nonsanctioned instances in which
defendant‟s nickname was mentioned “were brief, mild and factual and could not have
been prejudicial.” (People v. Brown, supra, 31 Cal.4th at p. 551.)
Defendant next complains that the prosecutor improperly mentioned his nickname
during her guilt phase arguments in reference to his self-identification and his statements
after the killing and that, in her penalty phase summation, she improperly argued that, by
his actions, “[defendant] discloses to you the essence of who he is. He introduces you to
the man you have come to understand during the course of this trial. He introduces you
to the man that was introduced to Devin on February twenty-first. He introduced you to
Point Blank.” To the extent defendant claims the prosecutor‟s argument constituted
misconduct, his claim is forfeited because he failed to object or request a curative
admonition in the trial court, and a timely objection and request for admonition would
have cured any resulting harm. (People v. Combs, supra, 34 Cal.4th at p. 854.)
Finally, even were we to conclude either that the trial court erred by admitting
evidence of defendant‟s nickname or that the prosecutor‟s use of it during argument
constituted misconduct, such error was harmless on the facts of this case. Given the
powerful evidence that defendant shot Mele seven times in the face at close range,
watched pieces of her face come off while he was firing the gun, and commented that if
the first bullet did not kill Mele, the second or third surely did, we are satisfied that the
jury‟s verdict finding defendant guilty of first degree murder did not rest on evidence of
18
At the time of the interview, Devin did not know defendant‟s true name.
30
his nickname. Further, defendant‟s nickname bore no sexual connotation and did not
suggest that defendant intended to rape Mele or that he had any propensity to rape
women. Defendant points to no use of the nickname during the penalty phase apart from
the above mentioned single reference during the prosecutor‟s lengthy closing argument.
The significance of defendant‟s nickname pales in comparison with the brutal and highly
aggravated manner of the killing. Accordingly, we conclude there is neither a reasonable
probability of a guilt phase result more favorable to defendant absent any error nor a
reasonable likelihood that any error affected the penalty verdict. (People v. Watson
(1956) 46 Cal.2d 818, 836; People v. Brown (1988) 46 Cal.3d 432, 447-448.) Likewise,
any error in admitting evidence of defendant‟s nickname or in the prosecutor‟s argument
was harmless beyond a reasonable doubt (Chapman v. California (1967) 386 U.S. 18) as
to guilt, the special circumstance finding, and the penalty imposed.
4. Jury Instructions Related to Proof Beyond a Reasonable Doubt
Defendant contends that 11 standard CALJIC instructions individually and
collectively violated his right, under In re Winship (1970) 397 U.S. 358, 364, not to be
convicted of a crime on a standard less than proof beyond a reasonable doubt. He
acknowledges we previously have rejected these precise contentions, but requests that we
reconsider our position as to each instruction. We decline to do so and summarily
reaffirm our prior decisions upholding the constitutionality of the following instructions:
CALJIC Nos. 2.01, 2.02, 2.21.1, 2.21.2, 2.22, 8.20, 8.83 and 8.83.1 (People v. Nakahara
(2003) 30 Cal.4th 705, 713-715; People v. Maury, supra, 30 Cal.4th at pp. 428-429);
CALJIC Nos. 1.00 and 2.51 (People v. Guerra, supra, 37 Cal.4th at p. 1139; People v.
Snow (2003) 30 Cal.4th 43, 97-98); and CALJIC No. 2.27 (People v. Montiel (1993) 5
Cal.4th 877, 941).
31
5. Prosecutorial Misconduct
Defendant contends the prosecutor committed prejudicial misconduct during her
closing argument. We conclude defendant‟s objections to the prosecutor‟s closing
argument lack merit.
While arguing that Mele did not consent to sex with defendant, and that defendant
could not reasonably have believed that she did consent, the prosecutor told the jury,
“She says no, and he‟s still on top of her, still attempting to get what he wants when he
wants it from her because she‟s not a woman, she‟s not a young woman to him. She‟s an
ends to a means [sic].” The prosecutor then argued, “What was Jarrod Gordon and Devin
Bates‟ reaction when the defendant takes off Mele[‟s] pants and gets on top of her and
she starts to scream and struggle? No badges of merit for either one of them at all.”
(Italics added.) When defense counsel objected that “[t]here‟s no evidence that anybody
is screaming, or there‟s any kind of violent struggle as being described by counsel,” the
trial court responded, “Well, there‟s evidence that her voice was raised. Overruled on
that point. The struggle is open to interpretation. The jury can recall the testimony.”
Defendant contends the italicized portion of the prosecutor‟s argument was an
“egregious exaggeration” of the evidence that amounted to misconduct. He further
contends the trial court abused its discretion by refusing to correct the statement and by
placing its imprimatur on the prosecutor‟s characterization of the evidence.
The prosecution is given wide latitude during closing argument to vigorously
argue its case and to comment fairly on the evidence, including by drawing reasonable
inferences from it. (People v. Gamache (2010) 48 Cal.4th 347, 371; People v. Harris
(2005) 37 Cal.4th 310, 345.) Here, Devin and Jarrod testified that, when Mele pushed
defendant off her, he did not get right off and that Mele was protesting loudly. Devin
further testified that, while defendant was on top of Mele, she said, “ „Do you think I‟m a
toss-up whore or something?‟ ” while appearing to be angry and disgusted, “[a]lmost [in]
a fit of rage.” The prosecutor‟s challenged remark was a fair comment on the evidence
32
and the inferences to be drawn from it. At worst, the prosecutor‟s characterization of
Mele‟s response was “hyperbole” that fell “within the scope of permissible argument.”
(People v. Navarette (2003) 30 Cal.4th 458, 519.
Because there was no misconduct, the trial court properly overruled defendant‟s
objection, and its instruction to the jury to “recall the testimony” properly reaffirmed that
the jurors should draw their own conclusions based solely on the evidence.19 Contrary to
defendant‟s argument, the trial court did not violate section 1044 by breaching its duty to
“control all proceedings during the trial, and to limit . . . the argument of counsel to
relevant and material matters, with a view to the expeditious and effective ascertainment
of the truth regarding the matters involved.” (Ibid.)
6. Cumulative Effect
Defendant argues the cumulative effect of the errors during the guilt phase so
infected the trial with unfairness as to make the resulting conviction and special
circumstance findings a denial of due process, requiring reversal of the guilt and penalty
judgment. We have found no guilt phase error, and we reject defendant‟s argument on
that basis.
B. Penalty Phase Claims
1. Admission of Evidence of Juvenile Misconduct
Section 190.3, factor (b) provides that, in determining whether to sentence the
defendant to death or life imprisonment without possibility of parole, the jury may
consider “[t]he presence or absence of criminal activity by the defendant which involved
the use or attempted use of force or violence or the express or implied threat to use force
or violence.” Defendant contends the use of violent acts committed when he was a
19
The jury‟s request for a read-back of the testimony of Devin, Jarrod, and Detective
Fernandez regarding what occurred after Mele fell down outside the car suggests that,
consistent with the trial court‟s instructions, the jurors properly decided for themselves
what the evidence actually showed.
33
minor, and particularly those committed when he was 15 years old or younger, as
aggravating evidence pursuant to section 190.3, factor (b), violated his rights under the
Eighth and Fourteenth Amendments to the federal Constitution to a reliable, nonarbitrary
sentencing decision, to a sentence proportionate to his culpability, and to due process of
law.
Among the acts of violent conduct admitted against defendant over his objection
were four incidents that occurred while he was a juvenile: the 1992 incident at Moreno
Valley High School when, during the course of violently resisting arrest, defendant hit a
school official in the face; the 1992 robbery of bicycles from two young boys; the 1993
assault and robbery of a pizza deliveryman; and the 1994 violent confrontation with
defendant‟s father, Edward Lee, during which defendant hit or slapped Edward in the
face. Testimony about the latter incident was first elicited by the defense in its direct
examination of Edward (see, ante, at p. 10), after the trial court denied defendant‟s
motion to exclude evidence of the incident.
We have long held that evidence of violent juvenile misconduct that would have
been a crime if committed by an adult is admissible under section 190.3, factor (b). (See,
e.g., People v. Lewis (2001) 26 Cal.4th 334, 378; People v. Avena (1996) 13 Cal.4th 394,
426; People v. Lucky (1988) 45 Cal.3d 259, 295.) We also have repeatedly held that the
admission of such evidence passes constitutional muster. (See, e.g., People v. Raley
(1992) 2 Cal.4th 870, 909; People v. Cox (1991) 53 Cal.3d 618, 689-690.) Nonetheless,
defendant argues admission of the evidence was unconstitutional in light of the high
court‟s decision in Roper v. Simmons (2005) 543 U.S. 551, holding that the Eighth and
Fourteenth Amendments prohibit execution of individuals who were under 18 years of
age at the time of their capital crimes. Defendant‟s reliance on Roper is misplaced. We
recently have rejected defendant‟s argument by explaining that Roper “says nothing
about the propriety of permitting a capital jury, trying an adult, to consider evidence of
34
violent offenses committed when the defendant was a juvenile.” (People v. Bramit
(2009) 46 Cal.4th 1221, 1239; accord, People v. Taylor (2010) 48 Cal.4th 574, 653-654.)
2. Evidence of Misdemeanor Guilty Plea
During its penalty phase case-in-chief, the prosecution introduced evidence that in
1995, when defendant was age 18, he either drove or rode as a passenger in a car that was
driven rapidly into a yard where a family was having a barbecue, forcing the guests,
including teenagers and young children, to scatter to avoid being hit. Three witnesses,
Ronald Gaither, Walter Fuller, and Joseph Scruggs, testified about the incident, but they
were unable to identify defendant as having been in the offending car.
To establish defendant‟s involvement in the incident, the trial court agreed, over
defendant‟s hearsay objection, to take judicial notice that in 1996 defendant pled guilty to
a misdemeanor offense of assault with a deadly weapon on Scruggs. The court instructed
the jury that it was going to take judicial notice of a misdemeanor case involving
defendant. It explained that “what judicial notice is, is basically the Court recognizing
events that took place in one of its other cases. And in this particular case, on January 10,
1996, [defendant] entered a plea of guilty to a charge of violating Penal Code Section 245
Subdivision (a) Subsection (1), a misdemeanor. The victim being Joseph Scruggs. [¶]
Now, by taking judicial notice of this fact, the Court is in effect admitting this into
evidence, but it‟s admitted for a very limited purpose. And you‟re instructed that that
limited purpose is simply as it relates to the identity of the individual who may have been
involved in the incident involving the car at the barbecue that you heard testimony about
the other day. It is offered for no other purpose . . . . [¶] It is not, and I emphasize „not‟
to be considered by you as a factor in aggravation that you may wish to consider in
determining the appropriate penalty. It again is offered for the limited purpose of
assisting you in determining the identity of the individual involved in that incident.”
35
As he did in the trial court, defendant contends the trial court erred by taking
judicial notice of his guilty plea because at the time of the capital offense, misdemeanor
convictions were inadmissible hearsay when used to establish the conduct underlying the
conviction. (People v. Wheeler (1992) 4 Cal.4th 284, 300 [“evidence of a misdemeanor
conviction, whether documentary or testimonial, is inadmissible hearsay when offered” to
show that a witness committed misconduct bearing on credibility]; accord, People v.
Santos (1994) 30 Cal.App.4th 169, 177-179; but see People v. Ray (1996) 13 Cal.4th 313,
369 (conc. opn. of George, C.J., joined by Baxter, Werdegar, Lucas and Arabian, JJ.)
[“the prosecution may rely upon a prior conviction of a crime involving the use or threat
of force or violence to establish the presence of criminal activity involving the use or
threat of force or violence for purposes of section 190.3, factor (b)”].) It was not until
several months after the capital offense that the Legislature enacted section 452.5 of the
Evidence Code, which allows the admission of records of a criminal conviction to prove
“the commission, attempted commission, or solicitation of a criminal offense.” (Evid.
Code, §452.5, subd. (b); see Stats. 1996, ch. 642, § 3, pp. 3620-3621, People v. Duran
(2002) 97 Cal.App.4th 1448, 1460-1462.) Defendant argues the error violated his federal
constitutional right to due process of law and was not harmless beyond a reasonable
doubt.
The trial court properly took judicial notice that defendant had pled guilty to a
misdemeanor offense. That guilty plea fell within the exception to the hearsay rule for
admissions of a party (Evid. Code, § 1220) and was not inadmissible hearsay when
offered to prove defendant‟s involvement in the barbecue incident. (People v. Cummings
(1993) 4 Cal.4th 1233, 1321-1322 [“the guilty pleas of Cummings” were “admissible
against Cummings as a declaration against his own penal interest, or as a confession or
admission”]; People v. Hayes (1990) 52 Cal.3d 577, 632-633 [evidence of defendant‟s
juvenile court admission to commission of voluntary manslaughter admissible under
§ 190.3, factor (b)]; see also Lake v. Reed (1997) 16 Cal.4th 448, 461.) Defendant‟s
36
reliance on Wheeler is misplaced, as the trial court took judicial notice of defendant‟s
guilty plea rather than of a conviction.20
Defendant argues the guilty plea showed only that he had acquiesced in a
resolution of his criminal liability rather than taking the risk of going to trial, and points
out that the plea said nothing about the identity of the car‟s driver. These arguments go
to the weight of the evidence, not its admissibility. We conclude there was no error.
3. Challenges to the Death Penalty Statute and Instructions
Defendant raises several challenges to California‟s death penalty statute and
penalty phase jury instructions based on various provisions of the federal Constitution.
We reaffirm the decisions that have rejected those claims, and decline to reconsider them,
as follows:
The absence of intercase proportionality review does not violate the Eighth and
Fourteenth Amendments. (People v. Whisenhunt, supra, 44 Cal.4th at p. 227; People v.
Moon (2005) 37 Cal.4th 1, 48; see Pulley v. Harris (1984) 465 U.S. 37, 50-51.)
The Eighth and Fourteenth Amendments do not require that the prosecution prove
beyond a reasonable doubt the existence of aggravating circumstances, or that the
aggravating circumstances outweigh the mitigating circumstances, or that death is the
appropriate punishment. (People v. Moon, supra, 37 Cal.4th at pp. 43-44; People v. Blair
(2006) 36 Cal.4th 686, 753.) The high court‟s recent decisions interpreting the Sixth
Amendment‟s jury trial guarantee (Cunningham v. California (2007) 549 U.S. 270;
United States v. Booker (2005) 543 U.S. 220; Blakely v. Washington (2004) 542 U.S.
296; Ring v. Arizona (2002) 536 U.S. 584; Apprendi v. New Jersey (2000) 530 U.S. 466)
do not alter these conclusions. (People v. Whisenhunt, supra, 44 Cal.4th at p. 227;
People v. Moon, supra, 37 Cal.4th at p. 44.) Brown v. Sanders (2006) 546 U.S. 212, has
20
We further note that judicial notice of the court record of the guilty plea was
permissible (Evid. Code, § 452, subd. (d)), and the record itself was not inadmissible
hearsay (id., § 1280).
37
no bearing on this issue. In that case, the high court held a reviewing court‟s invalidation
of one or more special circumstances did not render a California death sentence
unconstitutional where other special circumstances existed that made the defendant death
eligible. The case says nothing about any burden of proof at the penalty phase of a
capital case.
The lack of any burden of proof or persuasion as to penalty does not violate the
Eighth or Fourteenth Amendment, and the trial court does not have to instruct the jury
that there is no burden of proof or persuasion. (People v. Whisenhunt, supra, 44 Cal.4th
at p. 227; People v. Moon, supra, 37 Cal.4th at p. 44; People v. Blair, supra, 36 Cal.4th at
p. 753.) Jury unanimity as to aggravating circumstances is not required. (People v.
Whisenhunt, supra, 44 Cal.4th at p. 227; People v. Moon, supra, 37 Cal.4th at p. 43.)
The trial court does not have to instruct the jury that there is no burden of proof or
requirement of jury unanimity as to mitigating circumstances or that there is a
presumption that life without possibility of parole is the appropriate sentence. (People v.
Moon, supra, 37 Cal.4th at pp. 43-44; see People v. Samayoa (1997) 15 Cal.4th 795, 852-
853.)
CALJIC No. 8.88, the instruction that defines the jury‟s sentencing discretion and
the nature of its deliberative process, is not unconstitutional for (1) failing to inform the
jury that, if it finds the circumstances in mitigation outweigh those in aggravation, it is
required to return a verdict of life in prison without the possibility of parole; (2) failing to
inform the jury it must find the death penalty to be the appropriate penalty, not just the
warranted penalty; or (3) using the phrase “so substantial.” (People v. Moon, supra, 37
Cal.4th at pp. 42-43; People v. Coffman (2004) 34 Cal.4th 1, 124; People v. Boyette
(2002) 29 Cal.4th 381, 465.) Further, although the terms “aggravating” and “mitigating”
are commonly understood and do not require further elaboration (People v. Malone
(1988) 47 Cal.3d 1, 54-55), CALJIC No. 8.88 adequately defines mitigation (People v.
D’Arcy (2010) 48 Cal.4th 257, 304; People v. Dykes (2009) 46 Cal.4th 731, 817).
38
Defendant‟s argument that jurors would not understand the instruction‟s definition of
aggravation is based entirely on studies not presented to the trial court. We presume that
the jurors understood and followed the instruction notwithstanding “empirical assertions
to the contrary based on research that is not part of the present record and has not been
subject to cross examination.” (People v. Welch, supra, 20 Cal.4th at p. 773.)
Section 190.3, factor (a), which permits the jury to consider the “circumstances of
the crime” in determining the appropriate penalty, is neither vague nor overbroad, and it
does not impermissibly permit arbitrary and capricious sentencing. (People v.
Whisenhunt, supra, 44 Cal.4th at p. 228; see Tuilaepa v. California (1994) 512 U.S. 967,
976, 979.)
The jury may properly consider evidence of unadjudicated criminal activity under
section 190.3, factor (b) (People v. Whisenhunt, supra, 44 Cal.4th at p. 228), jury
unanimity regarding such conduct is not required (People v. Kelly (2007) 42 Cal.4th 763,
800), and factor (b) is not unconstitutionally vague. (Tuilaepa v. California, supra, 512
U.S. at p. 976.)
The trial court was not constitutionally required to instruct the jury that certain
sentencing factors can be considered only in mitigation, and CALJIC No. 8.85‟s
instruction to the jury to consider “whether or not” certain mitigating factors were present
did not unconstitutionally suggest that the absence of such factors was aggravating.
(People v. Whisenhunt, supra, 44 Cal.4th at p. 228; People v. Moon, supra, 37 Cal.4th at
p. 42.)
Written jury findings regarding aggravating factors are not constitutionally
required. (People v. Whisenhunt, supra, 44 Cal.4th at p. 228; People v. Moon, supra, 37
Cal.4th at p. 43.)
The use of the adjective “extreme” in section 190.3, factor (d), is not
unconstitutional. (People v. Whisenhunt, supra, 44 Cal.4th at p. 228; People v. Kelly,
supra, 42 Cal.4th at p. 801.) Nothing in Abdul-Kabir v. Quarterman (2007) 550 U.S.
39
233, or Brewer v. Quarterman (2007) 550 U.S. 286, which applied the holding of Penry
v. Lynaugh (1989) 492 U.S. 302, in the context of the Texas sentencing scheme, alters
this result. (See People v. Smithey (1999) 20 Cal.4th 936, 1005-1006 [§ 190.3, factors
(d), (h) and (k) satisfy Penry‟s requirement that the instructions permit the jury to give
mitigating effect to evidence of a defendant‟s mental condition].)
The death penalty law does not violate equal protection by denying capital
defendants certain procedural safeguards that are afforded to noncapital defendants
because the two categories of defendants are not similarly situated. (People v. Redd
(2010) 48 Cal.4th 691, 758; People v. Martinez, supra, 47 Cal.4th at p. 968.)
Section 190.2, which sets out the special circumstances that render a defendant
eligible for the death penalty, adequately narrows the class of eligible offenders in
conformity with the requirements of the Eighth and Fourteenth Amendments. (People v.
Hoyos (2007) 41 Cal.4th 872, 926.)
Prosecutorial discretion in the decision whether to seek the death penalty in a
given case does not render the law unconstitutionally vague or arbitrary. (People v.
Harris, supra, 37 Cal.4th at p. 366.)
Justice Blackmun‟s dissent from the high court‟s denial of certiorari in Callins v.
Collins (1994) 510 U.S. 1141, does not convince us that the death penalty is so arbitrary
or unreliable as to constitute cruel and unusual punishment in violation of the Eighth
Amendment. (People v. Fairbank (1997) 16 Cal.4th 1223, 1255.) Similarly, the
increasing barriers to postconviction relief in state and federal courts, as outlined by
Justice Blackmun in his concurring opinion in Sawyer v. Whitley (1992) 505 U.S. 333,
357-360, do not provide a basis for relief on direct appeal. (People v. Redd, supra, 48
Cal.4th at p. 758; People v. Demetrulias (2006) 39 Cal.4th 1, 44.)
The slow pace of executions in California, which defendant contends is similar to
the conditions condemned by Judge Noonan in his dissenting opinion in Jeffers v. Lewis
(9th Cir. 1994) 38 F.3d 411, 425-427, does not render our system unconstitutionally
40
arbitrary. (People v. Redd, supra, 48 Cal.4th at pp. 758-759; People v. Demetrulias,
supra, 39 Cal.4th at pp. 44-45.)
The alleged inconsistency between regular imposition of the death penalty and
international norms of human decency does not render that penalty cruel and unusual
punishment under the Eighth Amendment (People v. Moon, supra, 37 Cal.4th at pp. 47-
48); nor does “regular” imposition of the death penalty violate the Eighth Amendment on
the ground that “ „international law is a part of our law‟ ” (People v. Blair, supra, 36
Cal.4th at p. 755). To the extent defendant contends the errors and due process violations
that occurred at his trial also violate international law, his claim fails because we have
found no such errors or due process violations. International law does not prohibit a
sentence of death rendered in accordance with state and federal constitutional and
statutory requirements. (People v. Whisenhunt, supra, 44 Cal.4th at p. 228; People v.
Harris, supra, 37 Cal.4th at p. 366.)
4.
Denial of Special Instructions Requested by the Defense
The defense requested 21 special jury instructions at the penalty phase. The trial
court agreed to give four but rejected the others on the ground that the standard CALJIC
instructions, particularly CALJIC Nos. 8.85 and 8.88, adequately conveyed their
substance. Defendant contends the court‟s refusal to give all or part of seven of the
rejected special instructions (special instructions H, I, J, N, P, R, and T) violated state law
and his rights to trial by jury, a reliable penalty verdict, equal protection, and due process
of law under the federal Constitution‟s Sixth, Eighth and Fourteenth Amendments.
The trial court did not err. We repeatedly have held the trial court does not have to
instruct the penalty phase jury that (1) the list of mitigating circumstances in the standard
instructions is not exclusive, or that a juror may find that a mitigating circumstance exists
if there is any substantial evidence to support it, no matter how weak (special instruction
H); (2) there is no requirement that all jurors agree on any factor in mitigation (special
41
instruction N); (3) a single factor in mitigation may outweigh any number of factors in
aggravation, or that a verdict of life in prison without the possibility of parole is required
if the jurors are not persuaded beyond a reasonable doubt that aggravation substantially
outweighed mitigation or conclude that mitigation is equal to or outweighs aggravation,
or that the jury may return a verdict of life in prison without the possibility of parole even
if it concludes the factors in aggravation outweigh the factors in mitigation (special
instruction P) (People v. Kelly, supra, 42 Cal.4th at p. 799; People v. Barnett (1998) 17
Cal.4th 1044, 1176-1177; People v. Hines (1997) 15 Cal.4th 997, 1068-1070; People v.
Breaux (1991) 1 Cal.4th 281, 314-315); or (4) the law considers death to be a more
extreme punishment than life in prison without the possibility of parole (special
instruction T) (People v. Cowan (2010) 50 Cal.4th 401, 500-501; People v. Cook (2007)
40 Cal.4th 1334, 1363; People v. Ochoa, supra, 19 Cal.4th at pp. 478-479).
Defense special instruction R would have told the jurors that, if they had a doubt
about which penalty was appropriate, they had to give defendant the benefit of that doubt
and fix the penalty at life in prison without the possibility of parole. In previous cases,
we have held a penalty phase jury does not have to be instructed to give the defendant the
benefit of the doubt and impose life without possibility of parole if it has a reasonable
doubt about which penalty to impose. (People v. Roldan (2005) 35 Cal.4th 646, 741;
People v. Gutierrez (2002) 28 Cal.4th 1083, 1160.) Such an instruction is inaccurate
because the beyond-a-reasonable-doubt standard is inapplicable to the penalty
determination. (E.g., People v. Hines, supra, 15 Cal.4th at p. 1069.) Here, although the
requested instruction omitted the word “reasonable,” the outcome is the same. As we
have explained, trial courts need not and should not instruct the jury regarding any
burden of proof or persuasion at the penalty phase. (People v. Collins (2010) 49 Cal.4th
175, 261; People v. Blair, supra, 36 Cal.4th at p. 753.) Contrary to this rule, the
proposed instruction, with its reference to “doubt,” implies the existence of a burden of
proof and is the functional equivalent of an instruction that there is a presumption that life
42
in prison without the possibility of parole is the appropriate sentence. The death penalty
statute does not incorporate such a presumption. (See People v. Arias (1996) 13 Cal.4th
92, 190.) Defendant‟s analogy to People v. Dewberry (1959) 51 Cal.2d 548 is misplaced.
Dewberry stands for the proposition that “when the evidence is sufficient to support a
finding of guilt of both the offense charged and a lesser included offense, the jury must
be instructed that if they entertain a reasonable doubt as to which offense has been
committed, they must find the defendant guilty only of the lesser offense.” (Id. at
p. 555.) These principles have no application in the capital sentencing context, which
involves a normative judgment rather than a burden of proof. (See People v. Taylor,
supra, 48 Cal.4th at p. 658; People v. Gamache, supra, 48 Cal.4th at p. 407.)
Defendant further contends the trial court erred when it refused to give defense
requested special instructions I and J, which highlighted specific defense evidence and
issues.21 The court properly rejected the instructions as argumentative and duplicative of
21
Defendant‟s special instruction I read: “In determining whether any circumstance
has been presented which extenuates the gravity of the present offenses, even though not
an excuse for said crimes, you may consider, but are not limited to any of the following:
[¶] 1. Whether the manner in which the crime was carried out demonstrated lack of
premeditation, deliberation or intent; [¶] 2. Whether the manner in which the crime was
carried out demonstrated lack of sophistication or professionalism on the part of the
defendant; [¶] 3. Whether the defendant did not attempt to flee or escape when accused
of the crime, or attempt to use force or violence in an effort to avoid arrest; [¶]
4. Whether the defendant participated in the crime under circumstances of coercion or
duress, or his conduct was partially excusable for some other reason not amounting to a
defense; [¶] 5. Whether defendant committed the crime while under the influence of a
mental or emotional disturbance, even though the disturbance was not extreme, nor that it
amounted to legal insanity or an inability to form a specific intent; [¶] 6. Whether the
defendant committed the crime while his capacity to appreciate the criminality of his
conduct or to conform his conduct to the requirements of the law was impaired due to the
effects of intoxication; [¶] 7. Whether the evidence, although not establishing
reasonable doubt, creates a lingering or residual doubt concerning the defendant‟s guilt of
the present crimes. [¶] As instructed, mitigating factors include any sympathetic,
compassionate, merciful or other aspect of the defendant‟s background, character, record
or social, psychological or medical history, which is offered as a basis for a sentence less
than death, whether or not related to the offenses for which he stands convicted. [¶]
43
CALJIC No. 8.85, which lists the aggravating and mitigating factors the jury may
consider, and CALJIC No. 8.88. (See People v. Gutierrez, supra, 28 Cal.4th at p. 1159 &
fn. 12; People v. Hines, supra, 15 Cal.4th at pp. 1067-1068 & fn. 18; People v. Sanders
(1995) 11 Cal.4th 475, 559-561.) Although defendant‟s proposed instructions differed
from those in the cited cases because each item of defense evidence was prefaced with
the word “whether,” this is a distinction without a difference. Defendant‟s instructions as
a whole impermissibly invited the jury to “ „ “draw inferences favorable to [defendant]
from specified items of evidence.” ‟ ” (People v. Sanders, supra, 11 Cal.4th at p. 560.)
Among the mitigating factors which you may consider, and which relate to the defendant,
are the following: [¶] 1. Whether the defendant‟s psychological growth and
development affected his adult psychology and personality; [¶] 2. Whether the
defendant suffered any emotional or psychological problems as an adolescent that
prevented him from acquiring necessary social skills; [¶] 3. Whether the defendant was
a loving and helpful person in his relationships with his friends and relatives; [¶] 4. The
likely effect of a death sentence on the defendant‟s family and friends; [¶] 5. Whether
the facts in the defendant‟s upbringing, early family life, and childhood contributed to his
conduct; [¶] 6. Whether the defendant had a history of alcohol and/or substance abuse or
addiction, and whether such abuse and/or addiction had an effect on his behavior and
which [sic] contributed to his criminal conduct; [¶] 7. Whether the defendant has
positively adjusted to the type of structured and institutionalized environment in which he
will live the rest of his life if given a sentence of life in prison without the possibility of
parole; [¶] 8. Whether the defendant‟s age evidenced a lack of maturity or emotional
development at the time of the commission of the crime; [¶] 9. Whether the defendant
has the willingness and ability to comply with the terms of a sentence of life without the
possibility of parole; [¶] 10. Whether the defendant has the potential for rehabilitation
and for contributing affirmatively to the lives of his family, friends, and fellow inmates;
[¶] 11. Whether or not the defendant will be a danger to others if sentenced to life
imprisonment without the possibility of parole; [¶] 12. Whether any other facts exist
which may be considered as extenuating or reducing the defendant‟s degree of moral
culpability for the crime committed, or which might justify a sentence of less than death
even though such facts would not justify or excuse the offense.” Defendant‟s special
instruction J read in pertinent part: “In [mitigation], you must consider the defendant‟s
background, character, history, and any devotion or affection for his family and they for
him. You must also consider anything favorable to him during his life or any other
mitigating circumstance. [¶] In considering this evidence, you are free to assign whatever
moral or sympathetic value you deem appropriate to each and all of the various factors
you find are relevant.”
44
Defendant asserts the cumulative effect of the erroneous denial of his requested
instructions was to mislead the jury as to its proper sentencing function. Because we find
no error, there is no prejudice to cumulate.
5.
Cumulative Error
Defendant contends the cumulative impact of the errors of state and federal law
that occurred at the guilt and penalty phases of his trial rendered the trial fundamentally
unfair and its results unreliable, requiring reversal of the guilt, special circumstances, and
penalty judgments. Again, as we have found no error, there is no cumulative impact of
errors in this case.
III.
DISPOSITION
We affirm the judgment.
CHIN, J.
WE CONCUR:
CANTIL-SAKAUYE, C.J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
MORENO, J.
CORRIGAN, J.
45
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Lee
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S080550
Date Filed: February 24, 2011
__________________________________________________________________________________
Court: Superior
County: Riverside
Judge: Christian F. Thierbach
__________________________________________________________________________________
Counsel:
Conrad Petermann, under appointment by the Supreme Court, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney
General, Gary W. Schons, Assistant Attorney General, Holly Wilkens and Marilyn L. George, Deputy Attorneys
General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Conrad Petermann
Law Office of Conrad Petermann
323 East Matilija Street Ojai, CA 93023
(850) 646-9022
Marilyn L. George
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 645-3038
Automatic appeal from a sentence of death.
Opinion Information
| Date: | Citation: | Docket Number: | Category: | Status: |
| Thu, 02/24/2011 | 51 Cal. 4th 620, 248 P.3d 651, 122 Cal. Rptr. 3d 117 | S080550 | Automatic Appeal | submitted/opinion due |
Parties
| 1 | The People (Respondent) Represented by Attorney General - San Diego Office Marilyn L. George, Deputy Attorney General P.O. Box 85266 San Diego, CA |
| 2 | Lee, Philian Eugene (Appellant) San Quentin State Prison Represented by Conrad Petermann Attorney at Law 323 E. Matilija Street, #110, PMB 142 Ojai, CA |
| Opinion Authors | |
| Opinion | Justice Ming W. Chin |
| Dockets | |
| Jul 9 1999 | Judgment of death |
| Jul 14 1999 | Filed certified copy of Judgment of Death Rendered 7-9-99. |
| Jul 14 1999 | Penal Code sections 190.6 et seq. apply to this case |
| Nov 15 1999 | Record certified for completeness |
| Apr 16 2004 | Counsel appointment order filed In California, a criminal defendant has no right to represent himself or herself on appeal. (People v. Scott (1998) 64 Cal.App.4th 550; see also Martinez v. California (2000) 528 U.S. 152.) On the court's own motion, Conrad Petermann is appointed to represent appellant Lee for the direct appeal in the above automatic appeal now pending in this court. |
| Apr 28 2004 | Received: notice from superior court that 15,361 pp. record was sent to appellant's counsel on 4-23-2004. |
| Apr 28 2004 | Date trial court delivered record to appellant's counsel (15,361 pp. record) (see Calif. Rules of Court, rule 34(e)(1); the date of delivery is the date of mailing plus five days.) (Note: record was sent on 4-23-2004.) |
| Apr 29 2004 | Appellant's opening brief letter sent, due: February 7, 2005. |
| Jun 16 2004 | Compensation awarded counsel Atty Petermann |
| Jun 23 2004 | Counsel's status report received (confidential) from atty Petermann. |
| Aug 16 2004 | Counsel's status report received (confidential) from atty Petermann. |
| Sep 22 2004 | Compensation awarded counsel Atty Peterman |
| Oct 18 2004 | Counsel's status report received (confidential) from atty Peterman. |
| Nov 3 2004 | Record certified for accuracy |
| Dec 23 2004 | Counsel's status report received (confidential) from atty Petermann. |
| Jan 25 2005 | Note: a portion of the certified record was returned to the superior court for redaction, pursuant to Calif. Rules of Court, rule 31.3 and rule 34.1(c). |
| Feb 8 2005 | Request for extension of time filed to file appellant's opening brief. (1st request) |
| Feb 8 2005 | Counsel's status report received (confidential) from atty Petermann. |
| Feb 9 2005 | Extension of time granted to 4/8/2005 to file appellant's opening brief. |
| Mar 15 2005 | Record on appeal filed Clerk's transcript 53 volumes (12,209 pages) and Report's transcript 28 volumes (3,327 pages), including material under seal; ASCII disks. Clerk's transcript includes 9,998 pp of juror questionnaires. |
| Mar 15 2005 | Letter sent to: Counsel advising that record on appeal, certified for accuracy, was filed this date. |
| Mar 23 2005 | Compensation awarded counsel Atty Peterman |
| Apr 11 2005 | Counsel's status report received (confidential) from atty Petermann. |
| Apr 11 2005 | Request for extension of time filed to file appellant's opening brief. (2nd request) |
| Apr 13 2005 | Extension of time granted to 6/7/2005 to file appellant's opening brief. |
| Jun 3 2005 | Request for extension of time filed to file AOB. (3rd request) |
| Jun 3 2005 | Counsel's status report received (confidential) from atty Petermann. |
| Jun 8 2005 | Extension of time granted to 8/8/2005 to file appellant's opening brief. |
| Aug 8 2005 | Request for extension of time filed to file appellant's opening brief. (4th request) |
| Aug 9 2005 | Extension of time granted to 10/7/2005 to file appellant's opening brief. |
| Oct 17 2005 | Request for extension of time filed to file appellant's opening brief. (5th request) |
| Oct 17 2005 | Counsel's status report received (confidential) from atty Petermann. |
| Oct 20 2005 | Extension of time granted to 12/6/2005 to file appellant's opening brief. |
| Oct 26 2005 | Compensation awarded counsel Atty Petermann |
| Nov 2 2005 | Compensation awarded counsel Atty Petermann |
| Dec 6 2005 | Counsel's status report received (confidential) from atty Petermann. |
| Dec 6 2005 | Request for extension of time filed to file appellant's opening brief. (6th request) |
| Dec 12 2005 | Filed: supplemental declaration in support of application for extension of time to file appellant's opening brief. |
| Dec 14 2005 | Extension of time granted to 2/6/2006 to file the appellant's opening brief. After that date, only one further extension totaling about 60 additional days is contemplated. Extension is granted based upon counsel Conrad Petermann's representation that he anticipates filing that brief by 4/2006. |
| Feb 3 2006 | Counsel's status report received (confidential) from atty Petermann. |
| Feb 3 2006 | Request for extension of time filed to file appellant's opening brief. (7th request) |
| Feb 7 2006 | Extension of time granted to 4/6/2006 to file the appellant's opening brief. After that date, no further extension is contemplated. Extension is granted based upon counsel Conrad Petermann's representation that he anticipates filing that brief by 4/6/2006. |
| Apr 3 2006 | Request for extension of time filed to file appellant's opening brief. (8th request) |
| Apr 5 2006 | Counsel's status report received (confidential) from atty Petermann. |
| Apr 7 2006 | Extension of time granted to June 5, 2006 to file appellant's opening brief. Extension is granted based upon counsel Conrad Petermann's representation that he anticipates filing that brief by June 2006. After that date, no is contemplated. |
| Jun 2 2006 | Counsel's status report received (confidential) from atty Petermann. |
| Jun 2 2006 | Request for extension of time filed to file appellant's opening brief. (9th request) |
| Jun 6 2006 | Extension of time granted to August 4, 2006 to file appellant's opening brief. Extension is granted based upon counsel Conrad Petermann's representation that he anticipates filing that brief by August 4, 2006. After that date, no further extension is contemplated. |
| Aug 4 2006 | Request for extension of time filed to file appellant's opening brief. (10th request) |
| Aug 4 2006 | Counsel's status report received (confidential) from atty Petermann. |
| Aug 9 2006 | Extension of time granted to October 3, 2006 to file the appellant's opening brief. After that date, no further extension is contemplated. |
| Oct 2 2006 | Request for extension of time filed to file appellant's opening brief. (11th request) |
| Oct 2 2006 | Counsel's status report received (confidential) from atty Petermann. |
| Oct 10 2006 | Extension of time granted to November 2, 2006 to file appellant's opening brief. Extension is granted based upon counsel Conrad Petermann's representation that he anticipates filing that brief by November 2, 2006. After that date, no further extension will be granted. |
| Oct 31 2006 | Appellant's opening brief filed (87,165 words; 299 pp.) |
| Oct 31 2006 | Request for judicial notice filed (AA) appellant's request. |
| Oct 31 2006 | Received: "Copies of Matters for Judicial Notice Pursuant to Calif. Rules of Court, Rule 22,(a) Additionally Designated as an Appendix to Appellant's Opening Brief." |
| Oct 31 2006 | Respondent's brief letter sent; due: May 14, 2007 |
| Jan 17 2007 | Compensation awarded counsel Atty Peterman |
| Mar 2 2007 | Filed: "Exhibit 14 Supplement to Appendix to Appellant's Opening Brief." (perm - pages not consecutively numbered) |
| May 4 2007 | Request for extension of time filed to file respondent's brief. (1st request) |
| May 10 2007 | Extension of time granted On application of respondent and good cause appearing, it is ordered that the time to serve and file respondent's brief is extended to and including July 13, 2007. |
| Jul 11 2007 | Request for extension of time filed to file respondent's brief. (2nd request) |
| Jul 13 2007 | Extension of time granted to September 11, 2007 to file the respondent's brief. After that date, only one further extension totaling about 34 additional days is contemplated. Extension is granted based upon Deputy Attorney General Marilyn L. George's representation that she anticipates filing that brief by October 15, 2007. |
| Sep 4 2007 | Request for extension of time filed to file respondent's brief. (3rd request) |
| Sep 7 2007 | Extension of time granted Good cause appearing, and based upon Deputy Attorney General Marilyn L. George's representation that she anticipates filing the respondent's brief by December 14, 2007, counsel's request for an extension of time in which to file that brief is granted to November 13, 2007. After that date, only one further extension totaling about 32 additional days is contemplated. |
| Nov 13 2007 | Request for extension of time filed to file respondent's brief.(4th request) |
| Nov 15 2007 | Extension of time granted Good cause appearing, and based upon Deputy Attorney General Marilyn George's representation that she anticipates filing the respondent's brief by February 11, 2008, counsel's request for an extension of time in which to file that brief is granted to January 11, 2008. After that date, only one further extension totaling about 30 additional days is contemplated. |
| Dec 24 2007 | Request for extension of time filed to file respondent's brief. (5th request) |
| Dec 31 2007 | Extension of time granted Good cause appearing, and based upon Deputy Attorney General Marilyn George's representation that she anticipates filing the respondent's brief by February 11, 2008, counsel's request for an extension of time in which to file that brief is granted to February 11, 2008. After that date, no further extension is contemplated. |
| Feb 11 2008 | Respondent's brief filed (42,837 words; 133 pp.) |
| Feb 13 2008 | Note: appellant's reply brief is due April 11, 2008. (see Cal. Rules of Court, rule 8.630(c)(1)(D)) |
| Apr 10 2008 | Counsel's status report received (confidential) from attorney Petermann. |
| Apr 10 2008 | Request for extension of time filed to file appellant's reply brief. (1st request) |
| Apr 14 2008 | Extension of time granted Good cause appearing, and based upon counsel Conrad Petermann representation that he anticipates filing the appellant's reply brief by August 2008, counsel's request for an extension of time in which to file that brief is granted to June 10, 2008. After that date, only one further extension totaling about 60 additional days is contemplated. |
| Jun 6 2008 | Request for extension of time filed (AA) to file appellant's reply brief. (2nd request) |
| Jun 12 2008 | Extension of time granted Good cause appearing, and based upon counsel Conrad Petermann's representation that he anticipates filing the appellant's reply brief by August 2008, counsel's request for an extension of time in which to file that brief is granted to August 11, 2008. After that date, no further extension is contemplated. |
| Jun 30 2008 | Appellant's reply brief filed (15,589 words; 53 pp) |
| Jul 2 2008 | Compensation awarded counsel Atty Petermann |
| Nov 12 2010 | Oral argument letter sent advising counsel that the court could schedule this case for argument as early as the January calendar, to be held the week of January 3, 2011, 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. |
| Dec 1 2010 | Case ordered on calendar to be argued Wednesday, January 5, 2011, at 1:30 p.m., in San Francisco |
| Dec 13 2010 | Filed: appellant's focus issues letter, dated December 8, 2010. |
| Dec 13 2010 | Filed: respondent's focus issues letter, dated December 10, 2010. |
| Dec 9 2010 | Received: appearance sheet from Deputy Attorney General Marilyn L. George, indicating 30 minutes for oral argument for respondent. |
| Dec 10 2010 | Received: appearance sheet from Attorney Conrad Petermann, indicating 30 minutes for oral argument for appellant. |
| Dec 27 2010 | Request for judicial notice granted The requests for judicial notice, filed on October 31, 2006, are granted. |
| Jan 5 2011 | Cause argued and submitted |
| Jan 12 2011 | Compensation awarded counsel Atty Petermann |
| Jan 27 2011 | Filed: application for appointment of counsel (IFP form - for state habeas corpus/executive clemency) |
| Feb 23 2011 | Notice of forthcoming opinion posted To be filed on Thursday, February 24, 2011 at 10 a.m. |
| Briefs | |
| Oct 31 2006 | Appellant's opening brief filed |
| Feb 11 2008 | Respondent's brief filed |
| Jun 30 2008 | Appellant's reply brief filed |
| Brief Downloads | |
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| May 24, 2011 Annotated by gavriel jacobs | Opinion By: Chin, J. (unanimous)
The 18-year-old defendant was part of a group of youths, including the victim, who were spending the evening driving to various scenic lookout areas. Defendant had introduced himself as “Point Blank,” a nickname he took great satisfaction in. Except for the driver, the entire group (including the defendant and victim) became intoxicated from alcohol they had acquired earlier. At multiple locations, the defendant produced a firearm and fired into the air for no particular reason. The group eventually stopped at a final scenic lookout near Moreno Valley; by this point several of the individuals present, including the victim, had become intoxicated to the point of vomiting. The victim laid down in the backseat of the car in a dazed and incoherent state, at which point the defendant began making sexual advances towards her. The victim physically and verbally resisted the defendant as he straddled and partially undressed her. The defendant was eventually deterred by her resistance, but became enraged and dragged the victim from the vehicle, proclaiming he would “straighten [her] out.” He then restrained the victim and shot her in the forehead. After the victim collapsed following the initial shot, the defendant fired six or seven additional shots into her face. The other group members later testified that as they drove from the scene, the defendant boasted of his actions as a validation of his nickname (“Point Blank”), and stated his motive was the victim’s frustration of his sexual advances. The following morning, one of the juveniles present went to police, and the defendant turned himself in the next day. Following a jury trial, the defendant was convicted of first-degree murder with the special circumstance of attempted rape. After the penalty phase, the jury recommended a sentence of death, which was then subject to an automatic appeal to the California Supreme Court. The California Supreme Court affirmed the verdict and sentence of death The Court first re-affirmed the proper standard of review in this case as to determine if substantial evidence existed which could support the jury’s finding. The judgment and all facts determined by the jury are presumed valid on review. The Court found the evidence sufficient for a reasonable jury to conclude that the defendant had committed attempted rape as defined in California Penal Code Section 261(a)(2), and committed murder when the attempt was frustrated. While the Court noted minor discrepancies in witness testimonies, it found the jury could reasonably make a positive assessment of their overall credibility. The evidence thus supported a felony-murder theory. The Court then reviewed three non-determinative factors of evidence relevant to premeditation and found each one sufficient to support the jury’s finding of premeditation and deliberation: A) Planning Activity: The Court found it sufficient that the defendant had carried a handgun and extra ammunition the night of the murder. B) Motive: The Court found it sufficient that the defendant’s actions surrounding the attempted rape demonstrated a motive of sexual anger, and also noted the defendant’s desire to flaunt his self-styled reputation for brutality. C) Manner of Killing: The Court found it sufficient that the defendant had acted calmly and deliberately, announced his intentions as he pulled the victim from the car, fired a deliberately fatal close range shot, fired several additional shots, and then boasted about the murder shortly thereafter. Selected Citations People v. Anderson, 70 Cal.2d 15 (1968) (“identified three categories of evidence relevant to resolving the issue of premeditation and deliberation”) People v. Steele, 27 Cal. 4th 1230, 1250 (2002) (presence of weapon validates inference of premeditation) People v. Koontz, 27 Cal. 4th 1041, 1082 (2002) (premeditation can be inferred from point blank discharge of firearm at a vital organ) People v. Guerra, 37 Cal. 4th 1067 (2006) (finding of attempted rape not dependent on presence of physical sexual trauma) People v. Avila, 46 Cal. 4th 680, 701 (2009) (“substantial evidence” standard of review) The defendant claims he was unfairly prejudiced because the jury instructions allowed for a finding of attempted rape even if the defendant could reasonably have believed consent through “passive acquiescence,” thus lessening the prosecution’s burden of proof. The Court rejected this contention because the defendant made no objection to the trial court concerning the instruction, thus forfeiting the claim. Even if the defendant could properly raise the issue, the Court nonetheless found the instructions concerning the issue of sexual consent had properly expressed the law and were wholly satisfactory. The jury had been instructed that although a good-faith belief in the presence of consent is a defense, the defense fails where the purported consent is both equivocal and influenced by physical force or intimidation. The Court found the instructions adequately conveyed that the burden of proof for each element, including the issue of consent, rested with the state, and that the jury was not asked to presume non-consent were they to find “passive acquiescence.” Selected Citations People v. Rundle, 43 Cal. 4th 76, 151 (2008) (defendant forfeits ability to claim prejudicial error when he fails to challenge at the trial level an instruction that accurately states the law) People v. Mayberry, 15 Cal. 3d 143 (1975) (no intent to rape if a reasonable, good-faith belief in consent, but “ambiguous conduct that is the product of force” not considered good-faith) People v. Gonzalez, 33 Cal. App. 4th 1440, 1443 (1995) (CALJIC No. 1.23.1 does not impermissibly relieve the prosecution of the burden of showing non-consent) The defendant claimed that allowing the jury to hear that “Point Blank” was his nickname constituted impermissible propensity-based character evidence, and any probative value was outweighed by its prejudicial nature. The trial court had admitted evidence of the nickname for identification purposes. The Court reasoned that although the nickname had insufficient probative value as to identity, it was admissible and greatly probative to the issue of motive, since evidence had been introduced at trial suggesting that the defendant chose the particular method of killing in order to validate his nickname. The Court also rejected the defendant’s argument that the nickname was unfairly suggestive of gang membership, finding simply that the trial court had not abused its discretion in admitting the evidence. The defendant also claimed that a limiting instruction reminding the jury not to use the nickname as dispositive of guilt might have been confusing. The Court rejected this argument both because the instruction properly stated the law, and because the defense had drafted and requested the instruction itself, despite the trial judge expressing reservations as to the instructions efficaciousness. The Court also rejected as meritless the defendant’s claim that the nickname had been referenced excessively both by witnesses and the prosecutor. Although the nickname had been mentioned inappropriately several times, the Court found these incidents too minor and isolated to be considered structural error. Further, the Court noted that any objections to alleged prosecutorial misconduct should properly have been made to the trial court and cannot be first raised on appeal. Finally, the Court noted that even if the introduction of the nickname did have some prejudicial effect, it constituted harmless error in this case. The evidence supporting the defendant’s guilt was so overwhelming that the Court found it implausible beyond a reasonable doubt that the nickname alone could have significantly affected the jury’s guilt deliberations. Selected Citations People v. Brown, 31 Cal. 4th 518 (2003) (defendant’s nickname provided irreplaceable context for other testimony) People v. Thornton, 41 Cal. 4th 391, 436 (2007) (defendant cannot normally claim error related to instruction that he requested). The Court refused to consider the constitutionality of the contested standard instructions, noting that it had reviewed them in a multitude of previous cases. The Court listed and summarily affirmed some of these cases. In her closing argument, the prosecutor described the victim as screaming while she struggled with the defendant. The defendant had objected because he claimed the description constituted an unfair exaggeration, but had been overruled by the trial judge. The Court held the trial judge’s overruling appropriate, finding the particular phrasing an inoffensive commentary that, even if slightly hyperbolic, was not so egregious as to be patently unjustified, based on witness testimony that the victim had been in a “fit of rage” following the attempted rape. Selected Citations People v. Gamache, 48 Cal. 4th 347, 371 (2010) (prosecutor may comment on, and draw inferences from, evidence during closing arguments) Because the Court found no error under the defendant’s successive theories, it summarily dismissed the notion that they cumulatively invalidated the trial. During the penalty phase, the prosecution admitted evidence of at least four violent crimes the defendant had committed as a juvenile. The defendant cited Roper v. Simmons 543 U.S. 551 (2005), a case barring the execution of minors, for the proposition that capital penalty-phase juries should not be allowed to consider crimes that adult offenders had committed as juveniles. The Court rejected this interpretation of Roper, and reaffirmed the constitutionality of allowing penalty-phase juries to consider violent crimes a defendant committed as a juvenile. Selected Citations People v. Lewis, 26 Cal. 4th 334, 378 (2001) (that a violent act was committed as a juvenile does not prevent it from being admissible at an adult defendant’s trial) Roper v. Simmons, 543 U.S. 551 (2005) (juvenile defendants cannot be sentenced to death) People v. Bramit, 46 Cal. 4th 1221, 1239 (2009) (Roper v. Simmons does not preclude an adult capital jury from reviewing a violent juvenile record) The trial court took judicial notice of defendant’s adult guilty plea for misdemeanor assault with a deadly weapon for the expressly limited purpose of showing identity. At the time of the crime, it was considered inadmissible hearsay for a court to use a misdemeanor conviction to prove the underlying criminal actions, and the defendant thus argues that this admission was prejudicial error (the Evidence Code has since been amended to allow such admissions). The Court affirmed the actions of the trial court, noting that it was notice of convictions, not a plea of guilty, which was formerly barred. The Court reasoned that the plea of guilty constituted a party statement against interest, and was thus admissible as an exception to the hearsay rules. Selected Citations People v. Wheeler, 4 Cal. 4th 283, 300 (1992) (“evidence of a misdemeanor conviction . . . is inadmissible hearsay” to prove underlying events). People v. Cummings, 4 Cal. 4th 1233, 1321-22 (1993) (guilty plea was allowed under hearsay rules statement-against-interest exception) Cal. Evid. Code § 452.5(b) (amended Evidence Code provision allowing record of criminal conviction as evidence of the underlying actions themselves) The defendant made numerous constitutional arguments, none of them novel, against California’s death penalty statute. The Court reviewed each argument in turn, and in each case reaffirmed previous decisions upholding the constitutionality of both the substantive and procedural components of the state’s capital punishment system. The trial court rejected 17 out of 21 jury instructions proposed by the defense as redundant, unnecessary, or erroneous, characterizations the defendant contested on appeal. The Court affirmed the decisions of the trial court concerning each contested instruction. Among the instructions that the Court specifically noted as properly rejected were instructions which (1) improperly defined how jurors were to consider mitigating and aggravating factors; (2) unnecessarily instructed the jury on penalty phase burdens of proof and persuasion; (3) where repetitious of the standard jury instructions with only minor rhetorical differences; and (4) improperly attempted to suggest favorable interpretations of evidence. Selected Citations People v. Roldan, 35 Cal. 4th 646, 741 (2005) (“beyond a reasonable doubt” standard does not apply to the penalty phase; the jury may have a reasonable doubt about the choice of sentence). People v. Collins, 49 Cal. 4th 175, 261 (2010) (it is improper for trial courts to provide jury instructions regarding the penalty phase burden of proof) People v. Sanders, 11 Cal. 4th 475, 559-61 (1995) (jury instructions requested by the defense may not attempt to suggest favorable assumptions regarding a piece of evidence) Because the Court found no error in any aspect of the trial judgment and sentence, it summarily dismissed the argument that cumulative error had denied the defendant a fair trial. ---------- SEARCH TAGS:death penalty, jury instructions, consent, attempted rape, passive acquiescence, premeditation, judicial notice, juvenile convictions in capital cases, statement against interest, prejudicial nickname, constitutionality of death penalty ---------- Annotation By: Gavriel Jacobs |
