Citation 43 Cal. 4th 415, 181 P.3d 947, 75 Cal. Rptr. 3d 588
People v. Lewis
Filed 4/28/08
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S031603
v.
JOHN IRVIN LEWIS II,
Los Angeles County
Defendant and Appellant.
Super. Ct. No. BA048904
A jury found defendant John Irvin Lewis II1 guilty of the first degree
murder (Pen. Code, § 187; further undesignated statutory references are to the
Penal Code) and robbery (§ 211) of Jose Avina and Agustine Ramirez and of the
first degree murder, robbery, kidnapping for robbery (§ 209, subd. (b)), and
kidnapping (§ 207, subd. (a)) of Willie Sams, Elizabeth Nisbet, and Shirley
Denogean. As to each of the five murders, the jury found true special
circumstances of murder by means of lying in wait (§ 190.2, former subd. (a)(15)),
and murder during the commission of robbery (§ 190.2, former subd. (a)(17)(i)
[now subd. (a)(17)(A)]). The jury found true special circumstances of murder
1
The charging document, judgment, probation report, and other portions of
the trial record refer to defendant as John Irving Lewis. It has come to our
attention that defendant’s true name, as reflected on his birth certificate, is John
Irvin Lewis II. We refer to defendant by his true name in this opinion. (See Pen.
Code, § 953.)
1
during the commission of a kidnapping or kidnapping for robbery (§ 190.2, former
subd. (a)(17)(ii) [now subd. (a)(17)(B)]) for the Sams, Nisbet, and Denogean
murders, and it found true a multiple-murder special circumstance (§ 190.2, subd.
(a)(3)).
The jury also found defendant guilty of the robbery, kidnapping for
robbery, and kidnapping of Eugene Valdez, Juan Rios, and Sonia Aguirre; one
count of receiving stolen property (§ 496, former subd. (1) [now subd. (a)]); and
one count of conspiracy (§ 182, subd. (a)(1)). The jury found that defendant had
personally used a firearm (§ 12022.5, subd. (a)) during each of the murders,
robberies, kidnappings for robbery, and kidnappings.
After a penalty phase, the jury fixed defendant’s penalty at death for each
of the murders. The trial court denied defendant’s automatic motion to modify the
verdicts (§ 190.4, subd. (e)) and imposed death sentences for those counts. The
court imposed prison terms for the other counts and enhancements, stayed pending
imposition of the death penalty.
This case is before us on defendant’s automatic appeal. (§ 1239, subd. (b).)
For the reasons set forth below, we vacate the lying-in-wait special-circumstance
findings related to victims Avina, Sams, Nisbet, and Denogean; reverse
defendant’s six convictions for simple kidnapping (counts 7, 12, 13, 17, 21, and
25); modify the judgment to reflect a single sentence for conspiracy (count 27);
and order stayed the sentences for the conspiracy conviction in count 27 and for
the robbery convictions in counts 5, 8, 9, 15, 19, and 23. Otherwise, we affirm the
judgment, including the sentence of death.
I. FACTUAL BACKGROUND
During July and August 1991, defendant and codefendants Robbin
Monique Machuca, Vincent Gerald Hubbard, and Eileen Marie Huber engaged in
a crime spree in Los Angeles County involving the robberies, kidnappings, and/or
2
murders of eight separate victims. Defendant was linked to the crimes by
eyewitness accounts, automated teller machine (ATM) photographs, fingerprints,
ballistics and other forensic evidence, and defendant’s statements to police.
Defendant and his three codefendants were tried together.2
A. Guilt Phase
1. Prosecution’s case-in-chief
Viewed in the light most favorable to the judgment (People v. Posey (2004)
32 Cal.4th 193, 201; People v. Neal (2003) 31 Cal.4th 63, 69), the evidence at trial
established the following.3 In July and August 1991, defendant was living in
apartment E of the Woodside Village Apartments in West Covina with
codefendants Huber (defendant’s girlfriend), Machuca (defendant’s half sister),
and Hubbard (Machuca’s boyfriend).
a. Robbery and murder of Jose Avina (counts 1 & 2)
About 10:00 p.m. on July 5, 1991, in Monrovia, defendant was riding in
codefendant Huber’s car, following Derrick Colbert (defendant’s brother-in-law)
and Timmy Lane, who were in Lane’s car. Lane’s car bumped a red truck driven
2
The jury found Hubbard guilty of the counts and special circumstances
involving victims Valdez, Rios, Aguirre, Sams, and Denogean, and found he
personally used a firearm in all of those counts except the Denogean counts. The
jury found Machuca guilty of the counts and special circumstances involving
victims Valdez, Sams, Nisbet, and Denogean. The jury found Huber guilty of the
counts and special circumstances involving victims Avina, Valdez, Sams, and
Denogean. The jury further found Hubbard, Machuca, and Huber guilty of
receiving stolen property and conspiracy. The jury fixed Hubbard’s, Machuca’s
and Huber’s penalties for the murders at life imprisonment without the possibility
of parole, and the court imposed terms of years for the other counts. In an
unpublished opinion, the Court of Appeal, Second District, Division Five,
affirmed with modifications. We denied review on January 5, 1995.
3
In reviewing the evidence we do not consider codefendant Huber’s
statements, which were not admitted against defendant.
3
by Jose Avina, who pulled over and stopped. Defendant approached Avina and
demanded the keys to the truck. Defendant then shot Avina once in the head with
a 12-gauge sawed-off shotgun. The truck rolled onto a lawn in front of an
apartment complex. Defendant pulled Avina’s body from the truck, jumped into
the driver’s seat, and drove to Baldwin Park, where defendant and his companions
removed stereo equipment from the truck. Defendant then drove the truck to
Pomona and abandoned it. Defendant later put an amplifier from the truck into his
own car, a brown 1983 Oldsmobile Cutlass.
Avina died from a shotgun blast to the left side of his face, which
obliterated most of the left temporal and occipital lobes of his brain. Several
copper-coated pellets or fragments were removed from his head.
b. Robbery and murder of Agustine Ramirez (counts 3 & 4)
Agustine Ramirez owned the Magic Mushroom restaurant in West Covina.
His wife, Linda Ramirez, worked with him at the restaurant. Linda was friends
with Sylvia Medina, who lived with her daughter Barbara Espinoza in apartment
A of the Woodside Village Apartments, where defendant and his three
codefendants were occupying apartment E. During July and August of 1991,
Espinoza went on a few dates with defendant. One evening in early or mid-July,
1991, codefendant Machuca accompanied Sylvia Medina to the Magic Mushroom,
where she stayed for over an hour.
On the morning of August 3, 1991, Agustine and Linda Ramirez drove to
the restaurant in separate cars. About midnight, they decided to go home.
Agustine walked Linda to her car in the alley behind the restaurant, then began
walking to his car. Linda started her car and turned on the headlights. When
Agustine was about 15 feet from Linda, a car occupied by defendant and driven by
another person drove up to Agustine and stopped, blocking his way. Agustine
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talked to defendant. Linda noticed that defendant was holding an 18-inch shotgun.
As Linda struggled to get out of her car, defendant shot Agustine once in the
abdomen, then was driven away.
Agustine Ramirez was taken to a hospital, where he died from a single
gunshot wound to his left abdomen. Stippling around the wound and on his left
forearm indicated the shot was fired from a distance of about two feet. Thirteen
copper-coated double-aught shotgun pellets were removed from his body. The
next morning, five of Ramirez’s credit cards were found near a dumpster on the
grounds of the Edgewood Middle School in West Covina.
c. Kidnapping and robbery of Eugene Valdez (counts 5, 6 & 7)
Eugene Valdez worked as a salesman for a car dealership in the City of
Industry. In late July or early August, 1991, Valdez bought a brown 1983
Oldsmobile Cutlass from the dealership. About 9:00 p.m. on August 9, 1991,
Valdez left the dealership driving the Cutlass to return to his home in Victorville,
about 70 miles away. After driving about 30 minutes, Valdez became sleepy and
decided to stop and rest. He pulled into a restaurant parking lot, shut off the
engine, locked the doors, and fell asleep.
About two hours later, Valdez awoke to find defendant and codefendant
Hubbard banging on the car and yelling for him to open the door. They held a
sawed-off shotgun between them. The two men forced Valdez to lie facedown on
the backseat. Hubbard sat on top of Valdez’s legs, holding the shotgun against
Valdez’s neck. Defendant sat in the driver’s seat, chose a music station on the
radio, and began driving.
As they were driving, Hubbard threatened several times to kill Valdez, but
defendant urged him not to, saying, “Don’t do it, we can use the car.” Hubbard
also asked defendant, “Why are you going this way?” Defendant replied, “I can
5
get there just as fast.” Hubbard hit Valdez with his fists, spit on him, and
demanded his valuables and credit cards. Valdez surrendered his money, billfold,
and watch.
Some 30 minutes later, Valdez felt the car climbing into the mountains.
The car then pulled into a turnout near the Morris Dam, about 10 miles north of
West Covina. Defendant and Hubbard got out of the car and ordered Valdez to get
out as well. Valdez noticed that a second car occupied by a woman had pulled up
beside his car.
The men ordered Valdez to walk toward the edge of the turnout, where the
land dropped off steeply. Hubbard still held the shotgun. As Valdez walked
toward the edge, he heard one man say to the other, “You shoot the mother
fucker.” Fearing he would be killed, Valdez threw himself over the precipice. As
he did so, he heard a clicking sound as if a shotgun had misfired.
Valdez tumbled about 150 feet down a steep incline. He remained at the
bottom of the slope for several minutes. When he was sure the kidnappers had left
the area, he climbed up the slope and flagged down a passing motorist, who took
him to a phone to call the police.
Defendant removed the front fenders, front grille and bumper, hood, and
left rear taillight assembly from Valdez’s car and installed them on his own brown
1983 Cutlass. He also put the battery, tires, car radio, and speaker covers from
Valdez’s car in or on his car. Defendant then abandoned Valdez’s car in Baldwin
Park, where it was found about six days after the kidnapping. Defendant’s car still
had the installed parts from Valdez’s car when a Los Angeles County Sheriff’s
detective examined it on September 3, 1991, at an auto body shop in Rosemead to
which it had recently been towed.
6
d. Thefts from Gary Huber (count 26)
Codefendant Huber’s father, Gary Huber, lived in Baldwin Park. On the
morning of August 13, 1991, Gary left home with codefendant Huber and her
brother to drive to Pismo Beach. When he returned the next day, the house had
been broken into and ransacked. Several firearms were missing, including five
rifles of various types, a Ruger .357 Magnum handgun, and a .38-caliber Smith &
Wesson handgun. Also missing were two boxes of ammunition, a gun case, two
holsters, a bayonet, and a survival knife.
e. Kidnapping and robbery of Juan Rios and Sonia Aguirre
(counts 8, 9, 10, 11, 12 & 13)
About 10:00 p.m. on August 14, 1991, Juan Rios, accompanied by his
fiancée Sonia Aguirre, pulled Aguirre’s car up to the drive-through ATM at a
Security Pacific Bank in West Covina. As Rios was inserting his bank card into
the ATM, a man ran up to the driver’s side of the car, pointed a gun at him, and
ordered him to take as much money as possible out of the ATM or be shot. At the
same time, another man approached the passenger side window and pointed a gun
at Aguirre, demanding that she hand over her diamond engagement ring. She did
so. Rios tried several times to withdraw money, but the ATM was not
functioning. One of the men, whom Rios and Aguirre later identified as
defendant, got in the backseat behind Rios. The other man, whom Rios and
Aguirre identified as codefendant Hubbard, got in next to defendant, behind
Aguirre. Rios drove to the front of the bank while defendant held a gun to the
back of his head. Defendant ordered Rios to go to the walk-up ATM and
withdraw $200, threatening to shoot Aguirre or Rios if Rios “tried anything.”
Rios complied. When Rios returned to the car, defendant was in the driver’s seat.
Rios got in and gave the men the $200. Rios also surrendered his watch, gold
7
chain, and ring. When Hubbard asked defendant what they were going to do,
defendant said, “I have a plan.”
Defendant began to drive. Defendant and Hubbard assured Rios and
Aguirre that they would not be harmed because they were cooperating. About
three miles from the Security Pacific Bank, defendant pulled over and let Rios and
Aguirre out of the car, telling them not to “try anything” or they would be killed.
Rios and Aguirre walked to a nearby store and called the police.
Police located Aguirre’s car early the next morning in a shopping center
parking lot across the street from the bank where Rios and Aguirre had first been
accosted. Fingerprints lifted from the outside of the car on the driver’s side
matched defendant’s prints.
f. Kidnapping, robbery, and murder of Willie Sams (counts 14,
15, 16 & 17)
About 9:30 p.m. on August 18, 1991, Willie Sams drove his car to the same
Security Pacific Bank from which Rios and Aguirre had been abducted on August
14. From a gas station across the street, defendant saw Sams drive up to the drive-
through ATM machine. Defendant and codefendant Hubbard approached Sams’s
car and got in. Pointing the Ruger handgun at Sams, defendant forced him to
withdraw $200 from that ATM machine and then to drive to another Security
Pacific Bank and withdraw another $600.
Defendant drove Sams to Edgewood Middle School, the same school where
Agustine Ramirez’s credit cards had been found in early August. Defendant and
Hubbard forced Sams to get into the dumpster near the baseball field. Defendant
and Hubbard each fired several shots at Sams, killing him. Defendant later
removed the radio from Sams’s car, attempted to wipe his fingerprints off the car,
and abandoned the car in a shopping center parking lot.
8
Shortly after 11:00 p.m., West Covina police officers found Sams’s body.
Several copper-jacketed bullets or bullet fragments were recovered from the
dumpster.
A couple of hours later, at 1:07 a.m., $60 was withdrawn from Sams’s bank
account using an ATM machine.
On August 19, 1991, codefendants Hubbard and Machuca attempted to use
Sams’s credit card to purchase about $700 worth of clothing from a store in El
Monte. When the attempted purchase was denied, Hubbard and Machuca
hurriedly left the store.
Sams’s car, minus its radio, was recovered two days later in the shopping
center parking lot. Fingerprints on the car and on papers found in the car matched
defendant’s prints. Machuca’s prints were found on papers in the car.
Sams died of gunshot wounds to his head, trunk, and legs. One wound
perforated his heart; several others were potentially fatal. Four shots entered the
right side of the body and traveled to the left, while three shots entered the left side
and traveled to the right, indicating the shots were fired from two sources. Three
bullets were removed from Sams’s body.
A criminalist compared the bullets and bullet fragments recovered from
Sams’s body and from the dumpster in which he was found with bullets test-fired
from the Ruger and Smith & Wesson handguns stolen from Gary Huber,
codefendant Huber’s father. He concluded that the bullets removed from Sams’s
body and one bullet fragment from the dumpster could have been fired from the
Smith & Wesson, and that three bullet fragments found in the dumpster were fired
from the Ruger.
9
g. Kidnapping, robbery, and murder of Elizabeth Nisbet (counts
18, 19, 20 & 21)
Around 11:30 a.m. on August 24, 1991, Neil Nisbet and his wife Elizabeth
drove their car to the Puente Hills Mall. Elizabeth was wearing or carrying several
items of jewelry, including a gold ring with 17 diamonds, a gold bangle bracelet,
and a gold rope chain bracelet. Elizabeth waited in the car while Neil entered the
mall to run an errand. When Neil returned about 10 minutes later, the car and
Elizabeth were gone. Neil searched for Elizabeth for several hours and then called
the police.
Meanwhile, defendant, codefendant Machuca, and possibly one or more
other codefendants arrived at the Puente Hills Mall in codefendant Huber’s car,
parked, and saw Elizabeth Nisbet in her car. Defendant forced his way into the car
and pointed his gun at Nisbet. One or more of the codefendants bound Nisbet’s
hands and feet with duct tape. Defendant drove the Nisbets’ car to the Covina
branch of First Interstate Bank, where he and codefendant Machuca used Nisbet’s
ATM card to withdraw $400. Defendant then drove to a convenience store in
Covina, where an additional $100 was withdrawn from Nisbet’s account through
an ATM machine. Defendant then drove north on the 605 freeway, followed by
codefendant Huber’s car. After stopping along the side of the freeway, defendant
shot and killed Nisbet. Defendant or one of his codefendants removed Nisbet’s
jewelry, and they departed in Huber’s car.
About 3:10 p.m. that same day, California Highway Patrol officers found
the Nisbets’ car on the northbound 605 freeway. Elizabeth Nisbet’s body was
under a blanket on the rear floorboards. The body was not yet cold.
Elizabeth Nisbet had a gunshot wound to her left temple, which caused her
death, and there were several gunshot wounds to her left arm and hand. She had a
large blunt force trauma injury between her eyes, lacerations on her cheeks and
10
lips, blackened eyes, and bruises on her wrists and hands. Holes in the blanket
covering her indicated shots were fired through the blanket. Fragments of duct
tape were attached to her socks and to her right forearm, and a twisted ring of duct
tape was found underneath her body at approximately waist level. Three bullets
were recovered from various locations inside the car.
Several fingerprints lifted from the Nisbets’ car and from an ATM receipt
found in the car matched defendant’s fingerprints. A forensic scientist from the
Los Angeles County Sheriff’s Department determined that the duct tape used to
bind Elizabeth Nisbet’s feet came from a roll of tape that was recovered from a
nightstand in the bedroom of apartment E in West Covina after defendant’s arrest.
Two bullet fragments were removed from Nisbet’s brain and two from her
forearm. A criminalist concluded that the Smith & Wesson revolver stolen from
Gary Huber could have fired the bullets removed from Nisbet’s body as well as
three bullets recovered from the Nisbets’ car.
h. Kidnapping, robbery, and murder of Shirley Denogean (counts
22, 23, 24 & 25)
Between 12:15 p.m. and 1:00 p.m. on August 27, 1991, Shirley Denogean
drove her Mercedes Benz car to the Puente Hills Mall. Meanwhile, defendant,
codefendant Huber, and at least one other codefendant drove to the mall.
Defendant brought along the Ruger handgun and some plastic ties. Defendant saw
Denogean arrive, enter the mall, and return about 20 minutes later. As she was
getting into her car, defendant forced his way at gunpoint into the car. One or
more of the codefendants tied Denogean’s hands in front of her with the plastic
ties. Defendant drove Denogean to the First Interstate Bank’s City of Industry
branch, where $400 was withdrawn from Denogean’s account. Defendant then
drove Denogean to another branch of the same bank, where Huber withdrew
another $100 from Denogean’s account. Several unsuccessful attempts to
11
withdraw more money from Denogean’s account were made at various ATM
machines.
Defendant drove Denogean’s car west on the Pomona Freeway, stopping
between the Rosemead and San Gabriel Boulevard exits. Codefendant Huber
followed in her car. Defendant forced Denogean at gunpoint to walk down an
embankment, to an area surrounded by bushes. Once there, defendant fired three
shots at Denogean, killing her. Defendant and his codefendants then drove away.
About 12:04 a.m. the next day, $220 was withdrawn from Denogean’s bank
account through an ATM at a convenience store. Denogean’s car was found in El
Monte that same day. Fingerprints on the car and on papers found in the car
matched defendant’s and codefendant Machuca’s prints.
Denogean died from two gunshot wounds to her head. Both bullets entered
the right side of her head and exited the left side. Gunshot residue around one of
the wounds indicated the shot was fired at close range. Denogean also had
gunshot wounds to her left hand and to both legs. A criminalist concluded that the
bullets removed from Denogean’s body and bullets recovered from the scene of
her murder were fired from the Ruger handgun stolen from Gary Huber.
i. Arrests and defendant’s confessions
Codefendant Huber was arrested about 2:30 a.m. on August 30, 1991. At
3:15 a.m., defendant and codefendants Machuca and Hubbard were arrested at
apartment E in West Covina. Gary Huber’s Ruger handgun, loaded with bullets
bearing defendant’s fingerprints, was on the living room floor a few feet from
defendant. Gary Huber’s loaded Smith & Wesson revolver was found under a
child’s bed in the bedroom.
Gary Huber’s five rifles, rifle case, ammunition clips, and two gun belts
were found in various locations in the apartment. His two metal ammunition
12
boxes and his bayonet, as well as a firearm cleaning rod and loose ammunition,
were found in the apartment’s dishwasher. Several plastic ties of the kind used to
bind murder victim Shirley Denogean’s wrists were found in the dishwasher and
in the hall closet. The roll of duct tape that had been used to bind murder victim
Elizabeth Nisbet was found inside the nightstand in the bedroom. An unexploded
triple-aught shotgun shell was found in a patch of ivy outside the front door. Gary
Huber’s black survival knife was found in codefendant Eileen Huber’s car.
The search also revealed several items of the victims’ property, including
Denogean’s white purse, credit card, camera, and diamond engagement and
wedding ring set, and the radio from murder victim Willie Sams’s car. At the time
of her arrest, codefendant Machuca was wearing several pieces of murder victim
Elizabeth Nisbet’s jewelry.
After his arrest, defendant made four statements to law enforcement
officers in which he admitted killing Avina, Sams, Nisbet, and Denogean.
Defendant denied kidnapping Valdez. Regarding the Avina killing, defendant
claimed that he was headed to a party with Lane and Colbert when Lane’s car
accidentally bumped Avina’s truck after Avina stopped suddenly; that Avina then
argued with Lane and Colbert, saying, “I should blow your Black ass away,
fucking nigger”; and that when defendant approached the truck, Avina reached
down to grab a gun, at which point defendant shot him in the face. Defendant said
he used double-aught buck ammunition because when he was growing up his
stepfather told him, “If you ever buy a shotgun and you want some shit that will
blow a mother fucker’s head off, this is what you buy.”
Regarding the Sams murder, in addition to recounting the basic facts,
defendant said that after getting into the dumpster Sams cried and begged for his
life, but defendant shot him five times until he “couldn’t shoot no more.”
13
Defendant admitted he shot Sams because Sams could identify him, but he also
claimed he shot Sams because Sams looked like defendant’s abusive stepfather.
Regarding the Nisbet murder, defendant said he originally went to the mall
intending to rob a jewelry store, but when he saw Elizabeth Nisbet he decided it
would be easier to rob her instead. Defendant said that he stopped at the side of
the freeway intending to leave Nisbet there isolated from communication, and that
he fired one round near her head to scare her into being quiet. When Nisbet began
screaming “Don’t kill me” and breaking free from her restraints, defendant shot
and killed her.
Regarding the Denogean killing, defendant said that he went to the mall
intending to “look at” a jewelry store, but he decided to kidnap Denogean after
seeing her. He said that while they were driving on the freeway Denogean said,
“Go ahead and kill me now,” and attempted to strike defendant and grab his gun.
After defendant parked and ordered Denogean to walk down the embankment, she
said, “I know you are going to kill me so I might as well start screaming now.”
Defendant shot Denogean only after she screamed and tried to run away.
Defendant admitted he shot Denogean because she could identify him. Defendant
said he knew that everything he had done was wrong and that he had to suffer the
consequences. He said: “I’m not afraid to die. I don’t have nothing to live for.”
j. Additional
evidence
Laroy Johnson testified that in August 1991 defendant tried to recruit him
to commit robberies. Woodside Village Apartments resident Laura Pouncy
testified that one day in August 1991 defendant came into her apartment and asked
to watch the television news. During a broadcast showing helicopters and a body
being brought up, defendant jumped up and ran out of the apartment. He appeared
happy, as if “he had just hit a homerun.” Defendant once told Pouncy, “When you
14
put a gun in a person’s face and they think they are going to die their eyes get real
big.”
2. Defense
case
Edwin Bonilla testified that he was standing in front of the Magic
Mushroom restaurant in West Covina on the night its owner Agustine Ramirez
was killed. When he heard a shotgun blast, Bonilla looked into the alley and saw a
brown station wagon parked with the passenger door open. A Hispanic or light-
skinned Black man was walking toward the passenger door. The man appeared to
be reloading a shotgun with a pumping action. The shotgun depicted in a photo
found in apartment E in West Covina was a break-open shotgun, not a slide or
pump-action shotgun.4 About three weeks before the killing, Ramirez had broken
up a fight at the Magic Mushroom restaurant. The participants in the fight had
threatened to kill the bartender after she refused to serve them.
Defendant also presented evidence that he was in custody from 11:15 p.m.
on July 4, 1991, until some time before 6:20 p.m. on July 5, 1991, the day Jose
Avina was killed.
Codefendant Huber presented evidence that defendant had been seen
chasing her with a gun and shooting at her. A Los Angeles County Sheriff’s
Department detective testified that Huber said she was afraid of guns, but she
continued to “hang[] around guns and people that had guns” because “ ‘[i]t is also
scary that you are told that if you leave they are going to kill you anyway.’ ”
Codefendants Hubbard and Machuca both presented evidence intended to distance
themselves from defendant and the crimes.
4
Police never recovered the shotgun used in the Avina, Ramirez, and Valdez
crimes.
15
3. Prosecution’s rebuttal
In response to Edwin Bonilla’s testimony, a prosecution witness testified
that no shotgun shell was recovered at the scene of Agustine Ramirez’s murder.
B. Penalty
Phase
1. Prosecution’s case in aggravation
In January 1987, defendant tried to force 16-year-old Marlene L. to have
sex with him.
The prosecution also presented evidence that in November 1989 defendant
and several other men and women were involved in five armed robberies or
attempted armed robberies: a robbery of a convenience store in El Monte, during
which the clerk was shot in the leg; an attempted robbery at a trailer park in
Baldwin Park, during which two people were shot; a robbery of a customer at a
gas station in El Monte; an attempted robbery of several customers at a gas station
in Baldwin Park, during which two customers were shot; and a robbery at a
shopping center in Alta Loma.
On November 24, 1989, when defendant was 19 years old, he was arrested.
He was convicted of possessing a sawed-off shotgun and was returned to the
California Youth Authority for violating his parole for crimes he had committed as
a juvenile. Defendant was confined in the California Youth Authority from
November 24, 1989, until June 29, 1991, six days before the murder of Jose
Avina.
In June 1992, while defendant was in the county jail awaiting trial, a
homemade stabbing instrument known as a “shank” was found in his cell. One
day in November 1992, during the trial, a deputy sheriff found an 11-inch-
diameter hole in the wall of the courthouse lockup where defendant was placed
when not attending proceedings in the courtroom.
16
Friends and relatives of the five murder victims testified about the impact
of the murders on them. A correctional officer testified about prison conditions
for persons sentenced to life in prison without possibility of parole.
2. Defense case in mitigation
Defendant’s older sister Carmen, social worker Linda Witt, and a family
friend testified that defendant’s stepfather, Donald Deary, abused the children
physically and sexually. Defendant was removed from his mother’s home at a
young age, and thereafter, when not incarcerated, he lived with Carmen, his older
sister Bridgette, or his older brother Darryl. Defendant’s mother died in 1983.
Bridgette was found dead on the street from a drug overdose a few months before
defendant’s trial.
Family acquaintance Oma Colbert described defendant as a happy child on
the outside but sad on the inside. Defendant missed his parents and seemed to
want love and attention. A high school teacher testified defendant was an average
student.
Francis Crinella, a psychologist specializing in neuropsychology, testified
that defendant’s violent behavior, as well as his inability to control himself or his
impulses, to organize his behavior, or to consider alternatives, were related to
organic brain damage and his chaotic childhood. Dr. Crinella based this opinion
on defendant’s behavior, his inability to profit from experience, his poor
achievement in school, his history of seizures, and neuropsychological test results
that were consistent with mild diffuse brain damage.
Defendant had “one of the most extraordinarily chaotic childhoods”
Dr. Crinella had ever seen. Defendant was abused sadistically by his stepfather
from an early age. He began breaking the law when he was 10 years old. Other
members of his family abused drugs. His mother died from an apparent drug
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overdose when he was 13 years old. His stepfather sexually abused defendant and
his sisters. Defendant said he used marijuana soaked in phencyclidine (PCP) and
often committed crimes when he was high.
In Dr. Crinella’s opinion, defendant was a very fearful person with a
“predatory world view[]” and a “limited” “emotional repertoire.” He “put[] on a
show of bravado and toughness” to hide his fear. Defendant believed everyone
was “out to get him.” He also was very manipulative.
On cross-examination, Dr. Crinella acknowledged that California Youth
Authority mental health professionals said defendant did not have brain damage
but rather had an antisocial personality disorder. Dr. Crinella also acknowledged
that during interviews defendant had said he would kill a guard or other inmates in
prison.
II. DISCUSSION
A. Prearraignment Delay
Defendant was arrested around 3:15 a.m. on Friday, August 30, 1991, the
beginning of the Labor Day weekend. There was no warrant for defendant’s
arrest. Defendant was arraigned four days later, on Tuesday, September 3, 1991.
During the intervening period, while confined in the West Covina Police
Department jail, defendant made several statements. At 9:00 a.m. on August 30,
defendant waived his rights under Miranda v. Arizona (1966) 384 U.S. 436
(Miranda) and made an initial statement. At 10:15 a.m., defendant made a second
statement. At 12:36 p.m., defendant invoked his right to an attorney under
Miranda, and questioning ceased. About 4:00 p.m. on Sunday, September 1, more
than two days after his arrest, defendant initiated contact with police and made a
third statement. At 9:58 p.m., defendant made a fourth and final statement.
18
Defendant moved to suppress evidence of the statements he made on
September 1, 1991, as a violation of his rights under Miranda, supra, 384 U.S.
436. At the hearing, defense counsel argued that the statements should be
suppressed because defendant was questioned after he expressly asked for an
attorney but no attorney was appointed. Counsel pointed out that defendant made
the statements only after he “sat in jail for two days after asking for an attorney.”
Counsel argued that this procedure violated the rule of Edwards v. Arizona (1981)
451 U.S. 477, that the police may not question a suspect who invokes his Miranda
rights unless the suspect initiates the questioning. The trial court denied the
motion, observing that the police had no obligation to contact the public
defender’s office, that normally an attorney is not provided until arraignment, and
that defendant simply “didn’t wait long enough.”
Defendant now contends that the four-day delay between his warrantless
arrest and his arraignment before a neutral magistrate violated his right under the
Fourth Amendment to the federal Constitution to be free from unreasonable
seizures as defined in Gerstein v. Pugh (1975) 420 U.S. 103 (Gerstein), and in
County of Riverside v. McLaughlin (1991) 500 U.S. 44 (McLaughlin), and that his
two September 1, 1991, statements to the police should have been suppressed
because they were made during an unconstitutional detention.5
In Gerstein, the United States Supreme Court held that the Fourth
Amendment requires a prompt judicial determination of probable cause as a
5
Defendant also mentions his right to a prompt arraignment under section
849 and under article I, section 14 of the California Constitution. Because
defendant did not raise this issue at trial, and because in any event a violation of
these provisions would not warrant suppression of defendant’s statements unless
required by the federal Constitution (see Cal. Const., art. I, § 28, subd. (d); In re
Lance W. (1985) 37 Cal.3d 873), we confine our discussion to the federal claim.
19
prerequisite to an extended pretrial detention after a warrantless arrest. (Gerstein,
supra, 420 U.S. at pp. 114, 125-126.) In McLaughlin, the high court held that a
jurisdiction may choose to combine the probable cause determination with other
pretrial procedures such as arraignment. A jurisdiction that does so generally will
comply with the promptness requirement of Gerstein if it provides the probable
cause determination within 48 hours of a warrantless arrest. (McLaughlin, supra,
500 U.S. at p. 56.) If the delay exceeds 48 hours, the government must show that
“a bona fide emergency or other extraordinary circumstance” justified the delay.
(Id. at p. 57.) Neither the need to consolidate pretrial proceedings nor intervening
weekends constitutes extraordinary circumstances justifying delay of a probable
cause hearing beyond 48 hours. (Ibid.; see also Hallstrom v. City of Garden City
(9th Cir. 1993) 991 F.2d 1473, 1480 [construing language in McLaughlin
regarding “weekends” as meaning weekends or holidays].)
Defendant did not raise a McLaughlin claim at trial. At trial, he raised a
very different claim that suppression was warranted because the police had
violated his Fifth Amendment right to be left alone after his invocation of Miranda
rights until an attorney was appointed. (See Edwards v. Arizona, supra, 451 U.S.
at pp. 484-487.) The trial court properly rejected that claim because defendant had
initiated the contact with police on September 1, 1991. Although defendant
argued that the delay in supplying him with an attorney was unreasonable, he did
not assert that the failure to provide a judicial determination of probable cause
within 48 hours of his arrest violated his Fourth Amendment rights under
McLaughlin, supra, 500 U.S. 44. Accordingly, the prosecution never had a chance
to justify the delay. Defendant therefore forfeited his McLaughlin claim on
appeal. (People v. Sapp (2003) 31 Cal.4th 240, 270; People v. Hughes (2002) 27
Cal.4th 287, 325-326; People v. Turner (1994) 8 Cal.4th 137, 177.)
20
Defendant asserts that we may reach the McLaughlin claim because it
“ ‘merely restates, under alternative legal principles, a claim otherwise identical to
one that was properly preserved by a timely motion that called upon the trial court
to consider the same facts and to apply a legal standard similar to that which
would also determine the claim raised on appeal.’ ” (People v. Partida (2005) 37
Cal.4th 428, 436, quoting People v. Yeoman (2003) 31 Cal.4th 93, 117; see also
People v. Hines (1997) 15 Cal.4th 997, 1061.) We disagree. The focus of the
Edwards claim that defendant raised is whether defendant initiated any
questioning that occurred after he invoked his Miranda rights. (Edwards v.
Arizona, supra, 451 U.S. at pp. 484-487.) The focus of defendant’s McLaughlin
claim is the very different inquiry into whether there was an emergency or other
extraordinary circumstance justifying the delayed probable cause hearing.
(McLaughlin, supra, 500 U.S. at p. 57.) As defendant himself points out, there is
no evidence in the record on the latter issue. That is because defendant did not
object on Fourth Amendment grounds at trial and thus did not give the prosecution
an opportunity to make a record justifying the delay. (See People v. Hughes,
supra, 27 Cal.4th at p. 326.)
Defendant argues that his McLaughlin claim should be heard on appeal
despite his failure to raise it at trial because the United States Supreme Court has
held that McLaughlin is retroactive to cases that were pending on direct review
when the decision was announced. (Powell v. Nevada (1994) 511 U.S. 79, 85; see
also Anderson v. Calderon (9th Cir. 2000) 232 F.3d 1053, 1069-1070.) We
disagree. The high court in Powell expressly left open for determination on
remand “the consequences of Powell’s failure to raise the federal question.”
(Powell v. Nevada, supra, 511 U.S. at p. 84.) Moreover, retroactivity analysis is
beside the point. The high court decided McLaughlin in May 1991, months before
the crimes in this case occurred and over a year before defendant moved to
21
suppress his statements. Under these circumstances, defendant is charged with
knowledge of the decision in McLaughlin, supra, 500 U.S. 44, and his failure to
raise the claim at trial forfeits it.
B. Change
of
Venue
Defendant asserts that the trial court’s denial of his motion for a change of
venue violated state law (§ 1033, subd. (a)) and his rights to due process, a fair
trial and an impartial jury under the Sixth and Fourteenth Amendments to the
United States Constitution and under article I, section 16 of the California
Constitution.6
Before trial, defendant moved for a change of venue, or in the alternative
for countywide jury selection, on the ground that otherwise a fair trial could not be
had because of prejudicial pretrial publicity. In support of the motion, the defense
6
With respect to this and many other claims raised on appeal, defendant
urges that the error or misconduct he is asserting infringed on various federal
constitutional rights to a fair and reliable trial. 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 constitutional arguments he now advances. In each instance, unless
otherwise indicated, it appears that either (1) the appellate claim is of a kind (for
example, failure to declare a doubt concerning defendant’s competence, failure to
instruct sua sponte, or erroneous instruction affecting defendant’s substantial
rights) that required no trial court action by the defendant to preserve it, or (2) the
new arguments do not invoke facts or legal standards different from those the trial
court itself was asked to apply, but merely assert that the trial court’s act or
omission, insofar as erroneous for the reasons actually presented to that court, had
the additional legal consequence of violating the Constitution. To that extent,
defendant’s new constitutional arguments are not forfeited on appeal. (See
People v. Partida, supra, 37 Cal.4th at pp. 433-439; see also People v. Cole (2004)
33 Cal.4th 1158, 1195, fn. 6; People v. Yeoman, supra, 31 Cal.4th at p. 117.)
“On the merits, no separate constitutional discussion is required, or
provided, where rejection of a claim that the trial court erred on the issue
presented to that court necessarily leads to rejection of any constitutional theory or
‘gloss’ raised for the first time here.” (People v. DePriest (2007) 42 Cal.4th 1, 19,
fn. 6.)
22
submitted copies of local newspaper articles about the crimes and court
proceedings, and videotapes of televised news coverage. On September 14, 1992,
the court held a lengthy hearing, during which it viewed the videotapes.
After entertaining argument, the trial court denied the motion. It concluded
that the news coverage was largely factual rather than inflammatory and that the
bulk of it had occurred a year before the hearing on the motion; that the juror
questionnaires revealed that although the prospective jurors had general
knowledge about the crimes, they were not prejudiced against the defendants; that
there was no requirement that the jurors be completely ignorant of the facts of the
crimes; and that voir dire would reveal if any particular juror was biased and
unable to serve.
Defendant renewed his motion for change of venue several times during the
trial. Each time, the trial court denied it for essentially the same reasons it had
denied the original motion, except the trial court noted additionally that there was
no indication the chosen jurors had prejudged the case.
A trial court must grant a change of venue if “there is a reasonable
likelihood that a fair and impartial trial cannot be had in the county” in which the
charges were brought. (§ 1033, subd. (a); see Sheppard v. Maxwell (1966) 384
U.S. 333, 362; People v. Bonin (1988) 46 Cal.3d 659, 672, overruled on other
grounds in People v. Hill (1998) 17 Cal.4th 800, 823; Maine v. Superior Court
(1968) 68 Cal.2d 375.) Among the factors the trial court considers in ruling on a
motion for change of venue are “ ‘ “the nature and gravity of the offense, the size
of the community, the status of the defendant, the popularity and prominence of
the victim, and of course the nature and extent of the publicity.” ’ ” (People v.
Massie (1998) 19 Cal.4th 550, 578; see also People v. Ramirez (2006) 39 Cal.4th
398, 434.) The ultimate question for the trial court is “whether on the peculiar
facts of the individual case [citation] there is a reasonable likelihood that the jurors
23
who will be, or have been, chosen for the defendant’s trial have formed such fixed
opinions as a result of pretrial publicity that they cannot make the determinations
required of them with impartiality.” (People v. Bonin, supra, at pp. 672-673.)
Defendant, as the moving party, bears the burden of proof. (Id. at p. 673.) “A
denial of a motion for change of venue will be upheld on appeal unless the record
shows both that it was ‘ “reasonably likely [that] a fair trial could not be had at the
time the motion was made,” ’ and that it was ‘ “reasonably likely a fair trial was
not in fact had.” ’ ” (People v. Massie, supra, at p. 578.) “Reasonably likely” in
this context means something less than “ ‘ “more probable than not,” ’ ” but
something more than “merely possible.” (People v. Williams (1989) 48 Cal.3d
1112, 1126; see People v. Bonin, supra, at p. 673.)
Here, the charges included five counts of first degree murder with special
circumstances as well as numerous kidnapping, robbery, and other charges. As in
People v. Ramirez, a case involving 12 murders, “[t]he ‘nature and gravity’ of the
present offenses could not have been more serious, but this factor alone does not
require a change of venue.” (People v. Ramirez, supra, 39 Cal.4th at p. 434.)
Further, “[n]either defendant nor the victims were known to the public prior to the
crimes and defendant’s arrest,” so two additional factors — the status of the
defendant and the popularity and prominence of the victim — do not support a
change of venue. (Ibid.; see People v. Coffman and Marlow (2004) 34 Cal.4th 1,
46.) Defendant notes that he is Black and that two of his victims — Nisbet and
Denogean — were middle-class White women. Defendant’s other victims,
however, were themselves minorities: Sams was Black, while Avina, Ramirez,
Valdez, Rios, and Aguirre apparently were Hispanic. Although some prejudice
may have arisen from the racial difference between defendant and seven of the
victims, “this element of possible prejudice presumably would follow the case to
24
any other venue.” (People v. Prince (2007) 40 Cal.4th 1179, 1214; see also
People v. Dennis (1998) 17 Cal.4th 468, 523.)
We focus our attention, therefore, on the two remaining factors: the size of
the community and the nature and extent of the media coverage. First, the crimes
occurred in Los Angeles County, “the largest and most populous in California”
(People v. Williams (1997) 16 Cal.4th 635, 655), a factor that normally would
weigh heavily against a change of venue (see ibid.). Without citation to the
record, however, defendant contends that the jury selection occurred in the San
Gabriel Valley, a “discrete segment” of Los Angeles County, while the Attorney
General responds, also without citation to the record, that “the selection of the jury
from the area surrounding the Pomona courthouse . . . represents a population
exceeding that of most counties.” Assuming the San Gabriel Valley was the
primary source for jurors, that area encompasses several cities, including Covina,
West Covina, Baldwin Park, Walnut, and Glendora. Juror questionnaires reveal
that potential jurors came from all of these cities and from Pomona, Claremont, La
Puente, Duarte, Hacienda Heights, Rowland Heights, La Verne, Diamond Bar,
Valinda, and San Dimas. These cities all are part of the greater Los Angeles area,
a “ ‘populous metropolitan area’ ” in which we assume “the ‘adversities of
publicity [were] considerably offset.’ ” (People v. Harris (1981) 28 Cal.3d 935,
949 (plur. opn. of Clark, J.).) Under these circumstances, we conclude that
defendant failed to meet his burden (see People v. Bonin, supra, 46 Cal.3d at
p. 673) of establishing that the small size of the relevant community weighed in
favor of a venue change.
Further, this case did not involve the type of political controversy that has
justified changes of venue from Los Angeles County in past cases. (See, e.g.,
Powell v. Superior Court (1991) 232 Cal.App.3d 785, 798-802 [White police
officers charged with videotaped beating of Black motorist Rodney King]; Smith
25
v. Superior Court (1969) 276 Cal.App.2d 145, 148-149 [bribery and perjury
charges against city commissioner].)
The final factor we consider is the extent and nature of the media coverage.
The defense presented 39 articles from four newspapers, spanning a period of 13
months from August 1991 through September 1992. The defense also presented
approximately 95 minutes of videotaped television coverage.7 Certainly, the
evidence of media coverage was considerably less extensive than in other cases in
which we have affirmed denials of motions to change venue. (See, e.g., People v.
Prince, supra, 40 Cal.4th at pp. 1210-1214 [270 newspaper articles and extensive
television coverage]; People v. Ramirez, supra, 39 Cal.4th at p. 434 [trial court
described media coverage as “ ‘saturation, as much as they possibly can give’ ”];
People v. Sully (1991) 53 Cal.3d 1195, 1237 [193 newspaper articles, 300 pages of
television transcripts, and eight videotapes].)
The nature of the media coverage weighs a bit more in defendant’s favor.
We agree with the trial court that much of the coverage was “largely factual, and
noninflammatory.” (See Murphy v. Florida (1975) 421 U.S. 794, 800-801, fn. 4
[distinguishing “largely factual publicity from that which is invidious or
inflammatory”]; see also id. at p. 802.) Nonetheless, many articles and broadcasts
used inflammatory terms such as “execution-style,” “rampage,” “cold-blooded,”
“spree of terror,” and “execution bandits” to describe the crimes and the
defendants. The articles and broadcasts emphasized how the crimes had gotten
“under the skin” of San Gabriel Valley residents and “reached into the mainstream
of suburban life” due to the random selection of victims who were engaged in
7
Two videotapes that could not be played at the hearing because they were
in an unusable format, and that this court similarly was unable to view, are not
included in the 95-minute total.
26
everyday activities. One article quoted a detective as stating the victims were “all
of us.”
Additionally, some of the articles and broadcasts revealed facts about the
crimes and defendant that were inadmissible against defendant at trial, including
defendant’s prior incarceration, his gang affiliations, and the content of
codefendant Huber’s confessions. The articles and broadcasts also revealed
potentially prejudicial information, such as defendant’s status as a suspect in
several other unsolved offenses, and that he had confessed in detail to several of
the murders.
On balance, however, we find this factor did not compel a change of venue.
Most of the coverage — and nearly all of the potentially inflammatory coverage
— occurred in September and November 1991, nearly a year before jury selection
occurred. Although a brief flurry of articles appeared in September 1992,
immediately before jury selection, those articles focused on codefendant
Hubbard’s competency hearing and recounted the facts of the crimes only in
summary form. As we have noted, the passage of time diminishes the potential
prejudice from pretrial publicity. (People v. Bonin, supra, 46 Cal.3d at p. 677; see
also People v. Ramirez, supra, 39 Cal.4th at pp. 434-436; People v. Williams,
supra, 16 Cal.4th at p. 655.) Moreover, some of the potentially prejudicial
information revealed in the articles and broadcasts, such as the content of
defendant’s confessions, was admitted against him at trial, so no prejudice
resulted. (People v. Ramirez, supra, at p. 436.)
Further, although a large portion — 72 percent, according to defense
counsel — of potential jurors who responded to questionnaires had heard
something about the case, the trial court concluded that most of those jurors
remembered the case only in general terms, seemed to have no independent
recollection of the facts, and had not prejudged defendant’s guilt. Defendant does
27
not dispute that assessment. As we have explained, the vagueness of jurors’
recollections of past news coverage may “suggest[] the absence of prejudice.”
(People v. Prince, supra, 40 Cal.4th at p. 1215.) Moreover, there is no
requirement that jurors be totally ignorant of the facts of a case, as long as they
can lay aside their impressions and render an impartial verdict. (People v.
Williams, supra, 16 Cal.4th at p. 655.) In sum, we conclude defendant did not
meet his burden of establishing a reasonable likelihood that a fair and impartial
trial could not be had in Los Angeles County.
We further conclude that on appeal defendant has not shown a reasonable
likelihood that he did not receive a fair trial before an impartial jury. The jury voir
dire bore out the trial court’s conclusion that a fair jury could be chosen. Each
juror assured the trial court that he or she could be unbiased notwithstanding
exposure to media reports about the case. Although the jurors’ assurances of
impartiality are not dispositive (see People v. Jennings (1991) 53 Cal.3d 334, 361;
Murphy v. Florida, supra, 421 U.S. at p. 800), neither are we free to ignore them
(see Smith v. Phillips (1982) 455 U.S. 209, 217, fn. 7; DeLisle v. Rivers (6th Cir.
1998) 161 F.3d 370, 384). We have in the past relied on jurors’ assurances that
they could be impartial. (People v. Panah (2005) 35 Cal.4th 395, 448; People v.
Coffman and Marlow, supra, 34 Cal.4th at p. 46.) Absent a showing that the
pretrial publicity was so pervasive and damaging that we must presume prejudice
(see Patton v. Yount (1984) 467 U.S. 1025, 1031; Murphy v. Florida, supra, at
pp. 798-799), we do the same here. Considering all the circumstances, defendant
has not established a reasonable likelihood, as opposed to a mere possibility, that
he did not in fact receive a fair trial before impartial jurors. (See People v. Bonin,
supra, 46 Cal.3d at pp. 673-679.)
Finally, defendant asserts that the trial court abused its discretion by
considering only one of the five factors relevant to the weighing process — the
28
nature and extent of media coverage. We disagree. Although the court did not
discuss all of the five factors in considering defendant’s motion for a change of
venue, it focused on the salient inquiry — whether it was reasonably likely that
pretrial publicity had caused potential jurors to form such fixed opinions of
defendant’s guilt that they could not render an impartial verdict. (See People v.
Bonin, supra, 46 Cal.3d at pp. 672-673.) No abuse of discretion occurred.
C. Joint Trial Issues
In this part, we consider defendant’s closely related claims that the trial
court erred in denying his pretrial motion for severance and in admitting in
evidence at the guilt phase the redacted statements of codefendant Huber.
1. Denial of severance
Defendant contends that the trial court’s denial of his motion for severance
or for separate juries was erroneous and violated his rights under the Fifth, Sixth,
Eighth, and Fourteenth Amendments to the federal Constitution and corresponding
provisions of California law, requiring reversal of the guilt and penalty judgments.
For the reasons outlined below, we conclude defendant is not entitled to relief.
a. Facts
After his arrest, defendant made several statements to law enforcement
officers implicating himself and his codefendants in the Avina, Sams, Nisbet, and
Denogean crimes. After her arrest, codefendant Huber made several statements to
law enforcement officers implicating defendant, herself, and her other
codefendants in the Avina, Valdez, Sams, Nisbet, and Denogean crimes.
Codefendants Hubbard and Machuca made no postarrest statements to law
enforcement officers, although some of Hubbard’s prearrest statements were
introduced into evidence at trial.
29
Before trial, defendant and his codefendants each moved to sever his or her
trial or, in the alternative, for a separate jury. Each argued that a joint trial would
be unfair because, among other reasons, the prosecution intended to introduce into
evidence the statements defendant and codefendant Huber had made to police that
implicated other defendants, in violation of People v. Aranda (1965) 63 Cal.2d
518 (Aranda) and Bruton v. United States (1968) 391 U.S. 123 (Bruton). The
prosecutor opposed the motion, arguing the statements could be redacted to
remove references to the other codefendants. The prosecutor submitted proposed
redacted statements to the court. At the hearing on the motion, defendant argued
that a joint trial would be unfair because codefendant Huber’s statements
implicated him in the charged crimes and because the proposed redaction of his
own statements inaccurately portrayed him as the sole perpetrator of several of the
crimes. The trial court denied the motions, concluding that the proposed
redactions sufficiently protected each defendant’s rights. Later, during trial, the
court ordered further redactions. The redacted statements of defendant and
codefendant Huber were read to the jury during trial. The jury was instructed to
consider these statements against the speaker only and not against any other
defendant.
b. Legal
framework
Our Legislature has expressed a preference for joint trials. (People v.
Boyde (1988) 46 Cal.3d 212, 231.) Section 1098 provides in pertinent part:
“When two or more defendants are jointly charged with any public offense,
whether felony or misdemeanor, they must be tried jointly, unless the court
order[s] separate trials.” The court may, in its discretion, order separate trials if,
among other reasons, there is an incriminating confession by one defendant that
implicates a codefendant, or if the defendants will present conflicting defenses.
30
(People v. Avila (2006) 38 Cal.4th 491, 574-575; People v. Massie (1967) 66
Cal.2d 899, 917.) Additionally, severance may be called for when “there is a
serious risk that a joint trial would compromise a specific trial right of one of the
defendants, or prevent the jury from making a reliable judgment about guilt or
innocence.” (Zafiro v. United States (1993) 506 U.S. 534, 539 [addressing
severance under Fed. Rules Crim. Proc., rule 14, 18 U.S.C.]; People v. Coffman
and Marlow, supra, 34 Cal.4th at p. 40.)
We review a trial court’s denial of a severance motion for abuse of
discretion based on the facts as they appeared when the court ruled on the motion.
(People v. Hardy (1992) 2 Cal.4th 86, 167.) If we conclude the trial court abused
its discretion, reversal is required only if it is reasonably probable that the
defendant would have obtained a more favorable result at a separate trial. (People
v. Coffman and Marlow, supra, 34 Cal.4th at p. 41; People v. Keenan (1988) 46
Cal.3d 478, 503.) If the court’s joinder ruling was proper when it was made,
however, we may reverse a judgment only on a showing that joinder “ ‘resulted in
“gross unfairness” amounting to a denial of due process.’ ” (People v. Mendoza
(2000) 24 Cal.4th 130, 162.)
Here, defendant was charged along with at least one of his codefendants in
each count with having committed “common crimes involving common events
and victims.” (People v. Keenan, supra, 46 Cal.3d at p. 500.) The court
accordingly was presented with a “ ‘classic case’ ” for a joint trial. (People v.
Coffman and Marlow, supra, 34 Cal.4th at p. 40, quoting People v. Keenan, supra,
at pp. 499-500; see also People v. Avila, supra, 38 Cal.4th at p. 575.) Defendant
contends, nonetheless, that severance was warranted because (1) the admission of
the statements of his codefendants Huber and Hubbard prejudiced him; (2) the
redaction of his own statements denied him crucial exculpatory and mitigating
31
evidence; and (3) the defenses presented by his three codefendants were
antagonistic to his defense. We address each contention below.
c. Statements of codefendants Huber and Hubbard
Defendant first argues that severance was required because the joint trial
resulted in the introduction into evidence of out-of-court statements by
codefendants Huber and Hubbard that implicated defendant, in violation of
defendant’s rights under Aranda and Bruton. Consideration of defendant’s claim
requires that we review the governing law in some detail.
A criminal defendant has a right, guaranteed by the confrontation clause of
the Sixth Amendment to the United States Constitution, to confront adverse
witnesses. The right to confrontation includes the right to cross-examination.
(Pointer v. Texas (1965) 380 U.S. 400.) A problem arises when a codefendant’s
confession implicating the defendant is introduced into evidence at their joint trial.
If the declarant codefendant invokes the Fifth Amendment right against self-
incrimination and declines to testify, the implicated defendant is unable to cross-
examine the declarant codefendant regarding the content of the confession.
In Bruton, the United States Supreme Court held that the admission into
evidence at a joint trial of a nontestifying codefendant’s confession implicating the
defendant violates the defendant’s right to cross-examination guaranteed by the
confrontation clause, even if the jury is instructed to disregard the confession in
determining the guilt or innocence of the defendant. (Bruton, supra, 391 U.S. at
pp. 127-128, 135-137.) The high court reasoned that although juries ordinarily
can and will follow a judge’s instructions to disregard inadmissible evidence,
“there are some contexts in which the risk that the jury will not, or cannot, follow
instructions is so great, and the consequences of failure so vital to the defendant,
that the practical and human limitations of the jury system cannot be ignored.”
32
(Id. at p. 135.) Such a context is presented when “the powerfully incriminating
extrajudicial statements of a codefendant, who stands accused side-by-side with
the defendant, are deliberately spread before the jury in a joint trial.” (Id. at
pp. 135-136.)
Three years before Bruton, we had come to a similar conclusion on state
law grounds, but we also concluded that the codefendant’s confession may be
introduced at the joint trial if it can be edited to eliminate references to the
defendant without prejudice to the confessing codefendant. (Aranda, supra, 63
Cal.2d at pp. 530-531.) If not, and the prosecution insists on introducing the
confession, the trial court must sever the trials. (Ibid.)
The high court limited the scope of the Bruton rule in Richardson v. Marsh
(1987) 481 U.S. 200 (Richardson). There, defendant Marsh was jointly tried with
one Williams for murder. Williams’s confession was introduced into evidence,
but it was edited to remove any reference to Marsh. The high court held that
admission of Williams’s confession with a limiting instruction did not violate
Marsh’s confrontation rights. The court explained that Bruton recognized a
narrow exception to the general rule that juries are presumed to follow limiting
instructions, and this narrow exception should not apply to confessions that are not
incriminating on their face, but become so only when linked with other evidence
introduced at trial. (Richardson, supra, at pp. 206-207.) That is because, “[w]here
the necessity of such linkage is involved, it is a less valid generalization that the
jury will not likely obey the instruction to disregard the evidence.” (Id. at p. 208.)
Accordingly, the high court held, “the Confrontation Clause is not violated by the
admission of a nontestifying codefendant’s confession with a proper limiting
instruction when . . . the confession is redacted to eliminate not only the
defendant’s name, but any reference to his or her existence.” (Id. at p. 211, italics
added.)
33
In People v. Fletcher (1996) 13 Cal.4th 451, we addressed a question
expressly left open in Richardson: whether the admission into evidence of a
codefendant’s confession in which the defendant’s name has been replaced with a
blank space, the word “delete,” a symbol, or a neutral pronoun violates the
confrontation clause. (See Richardson, supra, 481 U.S. at p. 211, fn. 5.) We
reasoned that “editing a nontestifying codefendant’s extrajudicial statement to
substitute pronouns or similar neutral terms for the defendant’s name will not
invariably be sufficient to avoid violation of the defendant’s Sixth Amendment
confrontation rights.” (People v. Fletcher, supra, 13 Cal.4th at p. 468.) We
explained that “the sufficiency of this form of editing must be determined on a
case-by-case basis in light of the statement as a whole and the other evidence
presented at trial.” (Ibid.) We acknowledged that because the issue we faced was
one of federal constitutional law, our holding “may not be the last word.” (Id. at
p. 469, fn. 6.)
The high court reached a similar conclusion in Gray v. Maryland (1998)
523 U.S. 185 (Gray). There, the defendant and his codefendant were jointly tried
for murder. Admitted into evidence was the codefendant’s edited confession in
which a blank space or the word “deleted” was substituted for the defendant’s
name wherever it appeared in the confession. The high court concluded that the
admission of the edited statement violated Bruton, supra, 391 U.S. 123, because
“[r]edactions that simply replace a name with an obvious blank space or a word
such as ‘deleted’ or a symbol or other similarly obvious indications of alteration
. . . leave statements that, considered as a class, so closely resemble Bruton’s
unredacted statements that . . . the law must require the same result.” (Gray,
supra, at p. 192, italics added; see id. at p. 197.) That was because in context such
statements operate just like a confession that names the defendant — they point an
accusatory finger at the person “sitting at counsel table,” i.e., the defendant on
34
trial. (Id. at p. 193.) The court acknowledged that a jury had to use inference to
connect the blanks in the redacted statement to the defendant, and that
“Richardson placed outside the scope of Bruton’s rule those statements that
incriminate inferentially.” (Id. at p. 195.) The court concluded, however, that
Richardson’s application depended “in significant part upon the kind of, not the
simple fact of, inference.” (Id. at p. 196.) When, despite redaction, the statement
“obviously refer[s] directly to someone, often obviously the defendant, and . . .
involve[s] inferences that a jury ordinarily could make immediately, even were the
confession the very first item introduced at trial” (id. at p. 196, italics added) the
Bruton rule applied and introduction of the statement at a joint trial violated the
defendant’s rights under the confrontation clause. (Gray, supra, at pp. 196-197.)
i. Codefendant Huber’s statements
The trial court denied defendant’s motion to sever after the prosecution
proposed to introduce codefendant Huber’s statements in a redacted form that
eliminated direct references to defendant but did not eliminate all references to the
existence of one or more accomplices. Judging the circumstances as they
appeared at the time of the ruling on the motion (see People v. Cleveland (2004)
32 Cal.4th 704, 726), the trial court did not abuse its discretion. Although we
assume below that the admission of codefendant Huber’s redacted statements
violated defendant’s rights under Aranda and Bruton, our assumption is based on
Gray, supra, 523 U.S. 185, decided in 1998, six years after defendant’s 1992 trial.
Before Gray, the law regarding the admissibility of redacted codefendant
confessions was unsettled. (See, e.g., People v. Fletcher, supra, 13 Cal.4th 451.)
Although Gray is retroactive to this case and we apply it here, we cannot fault the
trial court for failing to anticipate Gray’s holding. Moreover the trial court could
35
have excluded Huber’s statements altogether. Therefore, no abuse of discretion
appears in the denial of severance.
Nor did the joint trial itself result in gross unfairness depriving defendant of
a fair trial. Any assumed error occurred not when the trial court denied severance,
but when the court made the related but separate ruling admitting codefendant
Huber’s redacted statements. Moreover, as we shall explain, any assumed error
was harmless.
ii. Codefendant
Hubbard’s statements
Defendant also contends that the trial court erred in denying severance
because of two statements admitted at the joint trial for use against codefendant
Hubbard only. Evidence was introduced that codefendant Machuca’s teenage son,
Donald, said that Hubbard told him that Hubbard and defendant together shot
Sams. The trial court immediately instructed the jury to ignore this statement
when considering defendant’s guilt. Evidence also was introduced of a letter
Hubbard wrote to Donald from jail stating that defendant had gotten Hubbard and
Machuca “in here with his bullshit.” Because the trial court was not made aware
of this testimony at the time of the severance motion, no claim of abuse of
discretion may be predicated on it. (See People v. Hardy, supra, 2 Cal.4th at
p. 167.) Further, although introduction of the first statement violated Aranda,
supra, 63 Cal.2d 518, and Bruton, supra, 391 U.S. 123, because it expressly
incriminated defendant, any error was harmless beyond a reasonable doubt
(Chapman v. California (1967) 386 U.S. 18, 24) in light of the voluminous
evidence linking defendant to the Sams murder, including defendant’s own
statements acknowledging that he shot Sams. (See People v. Cummings (1993) 4
Cal.4th 1233, 1288, fn. 27.) The meaning of the second statement is so unclear
that it cannot even be said to incriminate, much less to powerfully incriminate,
36
defendant. Accordingly, the admission at the joint trial of these two statements
did not result in gross unfairness to defendant.
d. Editing
of
defendant’s statements
Defendant next argues that the trial court abused its discretion in denying
severance because the denial resulted in the introduction of his own statements,
edited under Bruton, supra, 391 U.S. 123, and Aranda, supra, 63 Cal.2d 518, to
remove references to his codefendants. Defendant asserts that the redacted
statements inaccurately portrayed him as the sole perpetrator of the crimes to
which he confessed, violating his rights to due process and a fair trial. He further
contends that the trial court’s ruling—because it prevented him from bringing out
the omitted portions of the statements on cross-examination unless he testified—
violated his state statutory and federal constitutional rights.
Severance may be necessary when a defendant’s confession cannot be
redacted to protect a codefendant’s rights without prejudicing the defendant.
(Aranda, supra, 63 Cal.2d at p. 530.) A defendant is prejudiced in this context
when the editing of his statement distorts his role or makes an exculpatory
statement inculpatory. (People v. Douglas (1991) 234 Cal.App.3d 273, 285-287.)
Ordinarily, in ruling on a severance motion, a trial court should review both
the unredacted and the redacted statements to determine whether the redactions so
distort the original statement as to result in prejudice to the defendant. (People v.
Douglas, supra, 234 Cal.App.3d at p. 286; People v. Matola (1968) 259
Cal.App.2d 686, 693.) Here, the trial court declined to read the unredacted
statements before ruling on the severance motion because, during the hearing,
codefendant Hubbard’s counsel orally pointed out the differences between the two
versions. Although the better practice might have been for the trial court itself to
read the unredacted statements, any error was harmless because, as we will
37
explain, the redacted statements did not distort the meaning of defendant’s
statements or make an exculpatory statement inculpatory.
We first note that although defendant’s edited statements excluded
references to his codefendants, it is evident the jury did not believe defendant had
acted alone, for it found at least one of his codefendants guilty along with him in
each set of crimes to which he confessed. Further, the participation of others was
clear from the redacted statements’ use of the passive voice. For example,
Detective Graves testified that defendant stated “the victim’s [Nisbet’s] hands and
feet were bound with duct tape,” implying that someone other than defendant
bound Nisbet’s hands and feet.
Moreover, the redactions did not distort defendant’s role in the crimes or
alter any of his explicit admissions as to his own actions in any material way. To
be sure, some of the changes — such as changing “we went to the mall” to “I went
to the mall” — did change the meaning of defendant’s statements and impliedly
overstated defendant’s role. (See People v. Tealer (1975) 48 Cal.App.3d 598,
603-604 & fn. 10 [changing “we” to “I” in defendant’s confession was error
because “the effect of the modification was to throw the entire onus of the planned
robbery on defendant”]; cf. People v. Duarte (2000) 24 Cal.4th 603, 622 (conc. &
dis. opn. of Baxter, J.) [statement of accomplice that was redacted to remove
references to defendant impliedly overstated accomplice’s role].) Further, some of
the redactions made it appear that defendant acknowledged participating in
conduct that he actually had attributed to codefendant Hubbard.8 Such instances
8
For example, in his unedited statement about the Nisbet homicide,
defendant said: “Then me and Vincent [Hubbard] got out of the car, told Robbin
[Machuca] to follow us. He [Hubbard] walked over first, took the gun out, got in
behind her the lady [sic] and told her ‘Don’t scream and don’t move.’ ” The
redacted statement read to the jury stated: “Then got out of the car, walked over
(footnote continued on next page)
38
were immaterial, however, in light of defendant’s consistent admissions in both
the unredacted and the redacted versions as to acts he himself performed that
constituted the elements of the charged offenses. Finally, nothing that was omitted
was exculpatory. In each of the unredacted statements regarding the Sams, Nisbet
and Denogean crimes, defendant admitted planning and participating in the
robberies with one or more of his codefendants, as well as kidnapping and
personally shooting the victims. In his unredacted statement about the Avina
crime, defendant admitted personally shooting Avina and taking his truck. That
his codefendants also participated in some way could not relieve defendant of
liability for his own criminal acts.
Defendant contends that the trial court’s ruling preventing him from cross-
examining witnesses as to the omitted portions of his statements violated section
356 of the Evidence Code, which provides in pertinent part: “Where part of an
act, declaration, conversation, or writing is given in evidence by one party, the
whole on the same subject may be inquired into by an adverse party.” This
provision permits the introduction of statements that are necessary for the
understanding of, or to give context to, statements already introduced. (People v.
Harrison (2005) 35 Cal.4th 208, 239; People v. Zapien (1993) 4 Cal.4th 929, 959.)
But limits on the scope of evidence permitted under Evidence Code section 356
may be proper when, as here, inquiring into the “whole on the same subject”
would violate a codefendant’s rights under Aranda or Bruton. (See People v.
(footnote continued from previous page)
first, took the gun out, got in behind her, the lady, and told her ‘don’t scream and
don’t move.’ ” In context the jury might have believed that defendant had
admitted that he “walked over first” and told Nisbet “don’t scream and don’t
move,” when in actuality defendant said Hubbard did those things.
39
Ervin (2000) 22 Cal.4th 48, 87.) Here, the trial court did not prevent defendant
from cross-examining the witnesses to bring out his own hearsay statements that
exculpated him or lessened his own role in the crimes. Nor, as in Ervin, did the
trial court prevent defendant from presenting nonhearsay testimony or evidence
that implicated his codefendants. (See ibid.) Rather, the trial court precluded
defendant only from bringing out his own hearsay statements that expressly
inculpated his codefendants. These limits were permissible notwithstanding
Evidence Code section 356.
Defendant also relies on cases interpreting Federal Rules of Evidence, rule
106 (28 U.S.C.), the federal counterpart to Evidence Code section 356. Even were
this rule binding on the states (but see People v. Chatman (2006) 38 Cal.4th 344,
381, fn. 15), it would not aid defendant. Also called the “rule of completeness,”
rule 106 is violated only if redaction of the defendant’s statement “ ‘distorts the
meaning of the statement or excludes information substantially exculpatory of the
declarant,’ United States v. Kaminski, 692 F.2d 505, 522 (8th Cir. 1982).” (United
States v. Dorrell (9th Cir. 1985) 758 F.2d 427, 434 -435; see also United States v.
Washington (D.C. Cir. 1991) 952 F.2d 1402, 1404.) Here, as we have explained,
the redactions did not distort the meaning of defendant’s statements or exclude
substantially exculpatory matter.
Finally, defendant claims that the trial court’s ruling restricting him from
cross-examining as to the redacted parts of his statement unless he testified
violated his Sixth Amendment right to confront and cross-examine witnesses and
his Fifth Amendment right against self-incrimination. (See United States v.
Walker (7th Cir. 1981) 652 F.2d 708, 713, quoting 1 Weinstein, Evidence (1st ed.
1979) § 1106[01], pp. 106-109 [“ ‘Forcing the defendant to take the stand in order
to introduce the omitted exculpatory portions of [a] confession is a denial of his
right against self-incrimination’ ”].) We disagree. Restricting cross-examination
40
to protect the rights of a codefendant does not violate the Fifth or Sixth
Amendments to the federal Constitution when the restriction does not materially
affect the defense or when the probative value of the excluded evidence is slight.
(See United States v. Washington, supra, 952 F.2d at p. 1404.) As we have seen,
that was the case here.
Further, even assuming it was error to admit the statements in redacted
form and to restrict cross-examination as to the redacted portions at this joint trial,
the error was harmless under any standard. Pointing to evidence that codefendant
Hubbard was known to carry the Smith & Wesson revolver and that the bullets
removed from the bodies of Sams and Nisbet could have been fired from that gun,
defendant argues that if the jury had heard his unredacted statements naming
Hubbard as his partner in those crimes, the jury might have concluded that it was
Hubbard who actually fired the bullets that killed both Sams and Nisbet. This
argument is unpersuasive in light of defendant’s consistent admissions in his
unredacted statements that he personally shot Sams and Nisbet after switching
guns with Hubbard. Further, the unredacted versions of defendant’s statements
contain all the evidence necessary to render defendant guilty at a minimum as an
accomplice to murder and thus eligible for the death penalty, regardless of
Hubbard’s participation. (See Tison v. Arizona (1987) 481 U.S. 137, 157-158 [a
capital sentence does not violate the Eighth Amendment where a defendant both
possesses a mental state of “reckless indifference to the value of human life” and
is a major participant in a felony that resulted in murder].)
Defendant further contends that the redacted portions of his statements
regarding the Sams, Nisbet, and Denogean crimes included material that was
relevant to several penalty phase factors, particularly section 190.3, factor (j),
which allows the jury to consider “[w]hether or not the defendant was an
accomplice to the offense and his participation in the commission of the offense
41
was relatively minor.” Nothing in defendant’s unredacted statements would have
shown his participation in these crimes was “relatively minor.” Defendant argues
that his edited statements regarding the Avina and Sams crimes omitted crucial
mitigating evidence, such as defendant’s statements that his stepfather, Donald
Deary, had killed his mother, and that defendant’s deceased mother had visited
defendant as a spirit. He asserts that this editing violated his Eighth Amendment
rights to counter aggravating evidence and to present mitigating evidence.
Nothing prevented defendant from bringing out this information at the penalty
phase, however. Moreover, the jury heard ample evidence at the penalty phase
regarding Deary, including that defendant believed Deary killed defendant’s
mother.
Finally, defendant argues that the jurors were falsely informed that the
statements were his “own words,” and that the trial court did not correct the
misimpression. We disagree with defendant’s premise. We do not think the jury
would have assigned much weight to the interrogating police officer’s introductory
statement, which was read to the jury, that defendant had been asked to tell the
officers in “his own words” what had occurred. Moreover, defendant did not
request a curative instruction, so he may not complain now of the trial court’s
failure to give one.
In sum, the introduction of defendant’s redacted statements and the
restriction on cross-examination regarding the unredacted statements, even if
erroneous, were harmless under any standard. Therefore, the trial court did not
abuse its discretion in denying severance on this ground. (People v. Hardy, supra,
2 Cal.4th at p. 167.) Nor did the denial of severance result in “gross unfairness”
justifying a new trial. (People v. Mendoza, supra, 24 Cal.4th at p. 162.)
42
e. Antagonistic
defenses
Defendant next argues that severance was warranted because the defenses
presented by his three codefendants were antagonistic to his defense. For
example, he asserts that codefendant Huber’s defense that she committed the
crimes because she was afraid of defendant was inconsistent with defendant’s
defense that in his confessions he exaggerated his own role to protect his
codefendants. Defendant did not raise the antagonistic defenses issue at trial,
however, so the trial court’s failure to grant severance on this ground was not an
abuse of discretion. (See People v. Mitcham (1992) 1 Cal.4th 1027, 1043-1048.)
In any event, antagonistic defenses do not warrant severance unless the acceptance
of one party’s defense would preclude acquittal of the other. (People v. Hardy,
supra, 2 Cal.4th at p. 168.) Here, defendant’s defense and those of his
codefendants were not so irreconcilable that only one could be guilty. The
prosecution presented independent evidence supporting each defendant’s
participation in the group’s mutual criminal endeavors. No gross unfairness
resulted from the joint trial. (See People v. Avila, supra, 38 Cal.4th at pp. 574-
576; People v. Coffman and Marlow, supra, 34 Cal.4th at p. 41; People v. Box
(2000) 23 Cal.4th 1153, 1195-1197.)
Defendant further contends that the joint trial prejudiced him at the penalty
phase because both the prosecutor and his codefendants’ counsel urged the jury to
compare defendant with his codefendants, whose penalty phase presentations were
“more compelling” than defendant’s. Defendant asserts that the joint penalty trial
thus violated his right under the Eighth Amendment to the United States
Constitution to an individualized determination of his sentence based on his own
character and background. (See Lockett v. Ohio (1978) 438 U.S. 586, 605;
Woodson v. North Carolina (1976) 428 U.S. 280, 304.) We disagree. The trial
court instructed the jury: “In this case you must decide separately the question of
43
the penalty as to each of the defendants.” The trial court also told the jury at the
guilt phase not to consider against one defendant evidence that had been admitted
only against another defendant. We have held that such instructions are adequate
to ensure individualized sentencing in joint penalty trials. (People v. Taylor
(2001) 26 Cal.4th 1155, 1173-1174.) Here, as in Taylor, nothing in the record
indicates the jury was unable to assess the penalty separately for each defendant.
No gross unfairness to defendant resulted from the joint penalty trial.
2. Aranda/Bruton
Defendant contends that the admission into evidence at his joint trial of
codefendant Huber’s out-of-court statements violated state law and deprived him
of his rights to confront and cross-examine witnesses under the Sixth Amendment
to the United States Constitution. (Bruton, supra, 391 U.S. 123; Aranda, supra,
63 Cal.2d 518.) As we will explain, we need not decide whether the admission of
codefendant Huber’s statement about the Avina crimes deprived defendant of his
Sixth Amendment right of confrontation because, even if there was error, it was
harmless beyond a reasonable doubt (Chapman v. California, supra, 386 U.S. at
p. 24) in relation to defendant’s convictions for the first degree murder and
robbery of Avina and the robbery-murder special circumstance, and we will vacate
the lying-in-wait special circumstance attendant to that murder on other grounds.
With respect to codefendant Huber’s statements about the Valdez, Nisbet, Sams
and Denogean crimes, we need not decide whether their admission deprived
defendant of his confrontation rights because, even if there was error, it was
harmless beyond a reasonable doubt (ibid.) for the reasons explained below.
a. Codefendant Huber’s statements — adequacy of limiting
instruction
At the outset, defendant asserts that the limiting instruction given to the
jury was inadequate to protect his Sixth Amendment rights because it was phrased
44
solely in terms of the male pronoun. The jury was instructed under CALJIC
No. 2.08: “Evidence has been received of a statement made by a defendant after
his arrest. Do not consider the evidence of such statements against other
defendants.” Because other instructions included both male and female pronouns,
defendant asserts that the jury would not have understood CALJIC No. 2.08 to
apply to statements by Huber, who was his girlfriend and codefendant. We
disagree. In addition to the quoted instruction, the jury was instructed: “Evidence
has been admitted against one or more of the defendants and not admitted as
against the others. Do not consider such evidence against the other defendants.”
The jury also was instructed: “The word ‘defendant’ applies equally to each
defendant unless you are expressly instructed otherwise.” Considering all the
instructions together, we conclude the jury would have understood CALJIC No.
2.08 in a commonsense manner to refer to the statements of both male and female
defendants.
b. Codefendant Huber’s statement regarding the Avina crimes
Codefendant Huber’s redacted statement about the Avina crimes, as
recounted by Deputy Gentzvein at trial, can be summarized as follows: On the
evening Jose Avina was killed, Huber was driving her car and following another
car owned and driven by Timmy Lane. Derrick Colbert was a passenger in Lane’s
car. Huber was aware of a plan to find a nice car, bump it so the driver would pull
over, and then forcibly take the car and any valuables in it. Huber stated: “Then if
they cooperated they would be all right and if they didn’t, then they were going to
shoot him.” Colbert and Lane spotted a red truck and began to follow it, with
Huber behind them. Lane’s car bumped the red truck. A few blocks later, the red
truck stopped. The driver was approached and told to get out of his truck. As he
was trying to drive away, the driver was shot once in the head with a 12-gauge
45
sawed-off shotgun. The truck rolled onto a lawn in front of a house. The driver’s
body was pulled out of the truck and dumped on the lawn. The truck started and
sped down the street; Huber and Colbert followed. They drove to Colbert’s house
in Baldwin Park. Stereo equipment and some CD’s were removed from the truck
and placed in Lane’s car. The truck then was driven to Pomona and abandoned.
Codefendant Huber’s statement does not fall neatly within either the Gray
or the Richardson rule. Unlike in Gray, the names of Huber’s accomplices were
not replaced with a blank or a symbol. On the other hand, the statement does not
completely eliminate any reference to the “existence” of accomplices (cf.
Richardson, supra, 481 U.S. at p. 211), for it uses the passive voice to describe the
actions of others. For example, the jurors heard that Huber told Detective
Gentzvein “she observed the victim [Avina] try to drive away, at which time he
was shot one time in the head.” Thus, the statement “obviously refer[s] directly to
someone.” (Gray, supra, 523 U.S. at p. 196, italics added.) Because only
defendant and Huber were on trial for the Avina crimes, the jurors might have
concluded that the “someone” implicated in Huber’s statement was defendant.
(See id. at p. 193 [“[a] juror who . . . wonder[ed] to whom the blank might refer
need only lift his eyes to [defendant], sitting at counsel table, to find what will
seem the obvious answer”].) But because the statement also mentioned Colbert
and Lane, the jurors might have concluded that the “someone” implicated was one
or both of them.
In People v. Archer (2000) 82 Cal.App.4th 1380, the Court of Appeal held
that the admission of a codefendant’s statement edited in a similar manner —
replacing subjects and active verbs with passive voice phrasing — violated the
defendant’s confrontation rights in the joint murder trial of the defendant and his
codefendant. The Court of Appeal in Archer reasoned that given the manner of
editing, the existence of a participant other than the codefendant was obvious from
46
the statement itself. Further, other evidence admitted at trial revealed that the
murder occurred at the defendant’s house, and there was no evidence that anyone
other than the defendant and his codefendant participated. Because the average
juror under those circumstances could not have avoided drawing the inference that
the defendant was the other participant, the statement was “ ‘ “powerfully
incriminating” ’ ” and its admission violated the defendant’s Sixth Amendment
right of confrontation. (Id. at p. 1390.)
We need not decide whether the reasoning of Archer is correct or whether
similar reasoning would compel a similar conclusion in this factually distinct case.
Even if it was error to admit Huber’s redacted statement about the Avina crimes,
any assumed error was harmless beyond a reasonable doubt in relation to the
jury’s consideration of the robbery count, the robbery-felony-murder theory, and
the robbery-murder special circumstance. This conclusion permits us to affirm
defendant’s convictions for the robbery and first degree murder of Avina and the
jury’s true finding on the robbery-murder special circumstance. Further, we need
not decide if any assumed error affected the lying-in-wait special circumstance,
because we will vacate the jury’s true finding on that special circumstance on
other grounds.
We turn first to the murder conviction. The prosecution advanced, and the
jury was instructed on, three theories of first degree murder in relation to the
Avina homicide: felony murder based on robbery, deliberate and premeditated
murder, and murder by means of lying in wait. The jury returned a general verdict
finding defendant guilty of the first degree murder of Avina. If any of these three
theories was legally insufficient because it was infected with prejudicial
Aranda/Bruton error, we must reverse the murder conviction “absent a basis in the
record to find that the verdict was actually based on a valid ground.” (People v.
47
Guiton (1993) 4 Cal.4th 1116, 1129, italics added; see also People v. Green (1980)
27 Cal.3d 1, 69.)
Here, there is a basis in the record for finding that the first degree murder
verdict rested on the robbery theory of felony murder: the jury’s true finding on
the robbery-murder special-circumstance allegation. “ ‘Because a jury must
unanimously agree that a special circumstance finding is true (§ 190.4), and the
jury in this case was so instructed, the jury’s finding that defendant killed [the
victim] in the course of committing [a robbery] indicates that the jury unanimously
found defendant guilty of first degree murder on the valid theory that the killing
occurred during the . . . commission of a [robbery].’ ” (People v. Hughes, supra,
27 Cal.4th at p. 368, quoting People v. Marshall (1997) 15 Cal.4th 1, 38, brackets
added in Hughes.) Thus, assuming the robbery-felony-murder theory is valid —
that is, not infected by any assumed Aranda/Bruton error — we may affirm the
first degree murder conviction.
Robbery is the taking of “personal property in the possession of another
against the will and from the person or immediate presence of that person
accomplished by means of force or fear and with the specific intent permanently to
deprive such person of such property.” (CALJIC No. 9.40.) Both robbery and
felony murder based on robbery require that the intent to rob arise before force or
fear is applied. Thus, “[i]f the defendant does not harbor the intent to take
property from the possessor at the time he applies force or fear, the taking is only a
theft, not a robbery.” (People v. Davis (2005) 36 Cal.4th 510, 562.) Similarly,
“an intent to steal that arises after the infliction of the fatal wounds cannot support
a felony-murder conviction.” (Id. at pp. 564-565.) Finally, the special
circumstance of murder during the commission of a robbery requires that the
murder be committed “in order to advance [the] independent felonious purpose” of
robbery. (People v. Green, supra, 27 Cal.3d at p. 61; see People v. Davis, supra,
48
at p. 568.) A robbery that is merely incidental to a murder does not suffice.
(People v. Green, supra, at p. 61.)
Here, there was strong evidence that defendant committed the crime of
robbery — that is, that he took Avina’s truck from Avina’s immediate presence
against Avina’s will by means of force or fear with the specific intent permanently
to deprive Avina of the truck. There also was strong evidence that defendant
killed Avina during the commission of that robbery, and that he killed Avina to
advance the commission of the robbery. (See People v. Green, supra, 27 Cal.3d at
p. 61.). Defendant told police that he was in a car headed to a party when his
friend’s car accidentally collided with Avina’s truck, and that he approached
Avina, demanded the keys to his truck, and shot him when he refused. Defendant
stated: “I put the gun to his face and told him I want the keys to his car. He tried
to be smart. Told him, he smile at me, didn’t get it right, reached down and I shot
him in the face.” Defendant also told police that he then drove off in the truck,
and later removed the truck’s cassette player, speakers, and other items. Avina’s
CD player, speakers, amplifier, and CD case were found in cars and apartments
linked to defendant and his friends. This evidence supports an inference that after
Avina refused to hand over the keys to the truck, defendant killed him to take the
truck and some of its contents. It also supports a strong inference that defendant
formed the intent to take the truck before shooting Avina. (See People v. Combs
(2004) 34 Cal.4th 821, 852.)
Although defendant claimed that he shot Avina in self-defense after Avina
reached for a gun, the physical evidence suggests otherwise. Avina suffered a
large wound to the left side of his face and head. The shot penetrated the side
panel of the truck to the rear of the driver’s door, at the level at which Avina’s
head would have been if he had been sitting upright in the driver’s seat. Shotgun
pellets were recovered from the interior of the truck’s passenger door and from the
49
floor between the passenger door and the seat. All of this evidence reasonably
suggested that defendant shot Avina while Avina was sitting up and facing
forward, and not, as defendant claimed, while Avina was reaching down to grab a
gun.
The strong evidence of guilt — including defendant’s own statements in
which he admitted all of the elements supporting the robbery-related counts and
the robbery-murder special circumstance — weighs heavily in favor of a
conclusion that any assumed error in the admission of Huber’s redacted statement
was harmless. We acknowledge that the prosecutor in closing argument relied
heavily on Huber’s statement in his description of the Avina murder. Nonetheless,
he did not explicitly urge the jury to rely on Huber’s statement when discussing
the robbery-related counts and the special circumstance, and he pointed out
defendant’s own statement that he demanded Avina’s keys before shooting Avina.
In light of the powerful evidence supporting the jury’s verdicts and findings and
the prosecutor’s minimal use of Huber’s statement in the relevant portions of his
closing argument, we conclude that any assumed error in the admission of Huber’s
redacted statement at the joint trial was harmless beyond a reasonable doubt
(Chapman v. California, supra, 386 U.S. at p. 24) in relation to the jury’s
consideration of the Avina robbery count, the robbery-felony-murder theory of
first degree murder, and the special circumstance of murder during the
commission of a robbery.
Because any assumed error was harmless beyond a reasonable doubt in
relation to the robbery theory of felony murder, and because there is a basis in the
record for determining that the jury’s first degree murder verdict in fact rested at
least in part on the robbery-felony-murder theory, we may affirm defendant’s
conviction for the first degree murder of Avina without addressing whether any
assumed error in the admission of Huber’s redacted statement affected the jury’s
50
consideration of the other two theories of first degree murder presented to it. (Cf.
People v. Boyd (1985) 38 Cal.3d 762, 770, cited with approval in People v.
Guiton, supra, 4 Cal.4th at p. 1130.) We also affirm defendant’s conviction for
the robbery of Avina and the jury’s true finding on the robbery-murder special
circumstance. We need not address whether the admission of Huber’s redacted
statement about the Avina crimes affected the jury’s true finding on the lying-in-
wait special circumstance because, as we will explain below, we vacate that
special circumstance on other grounds.
c. Codefendant Huber’s statements concerning the Valdez, Sams,
Nisbet, and Denogean crimes
Codefendant Huber gave the police detailed narrative statements about the
Valdez and Denogean incidents. The statements were redacted and read to the
jury in that form. Like her statement about the Avina crimes, each of those
redacted statements recounted, in the passive voice, the actions of one or more
other persons and therefore implicated someone. For example, the jury heard that
Huber said she “observed [Valdez] to be forcibly abducted,” she observed Valdez
exit the car in Azusa Canyon, and “a gun misfired” as Valdez jumped off a cliff.9
Similarly, the jury heard that Huber stated her car “was driven” around the mall
parking lot until Denogean was spotted, Denogean “was overcome and her hands
were bound,” money and an ATM card “was [sic] removed” from Denogean’s
9
Codefendant Huber’s full statement regarding the Valdez crimes, as
recounted by Detective Roderick Kusch of the Los Angeles County Sheriff’s
Department, can be summarized as follows: On the night Valdez was kidnapped,
Huber went in her car to a mini mall. A man was sleeping in a car in the parking
lot. Huber observed the man being abducted. She followed in her car as his car
was driven to Azusa Canyon. Both cars stopped by the side of the road. The man
got out of the car, a gun misfired, and the man jumped over the edge of the
mountain. Both cars then drove away.
51
purse, and Huber saw Denogean walk down an embankment and then heard shots
fired.10 Each of these statements implies the existence of one or more
accomplices. In that sense, they are similar to the statements in Gray which
“obviously refer directly to someone.” (Gray, supra, 523 U.S. at p. 196, italics
added.)
On the other hand, it is impossible to determine from the redacted
statements how many accomplices were involved in the Valdez and Denogean
crimes. Because three people in addition to Huber were on trial for those crimes,
reasonable jurors could have concluded that the statements referred not to
defendant, but to codefendants Hubbard or Machuca. Some courts have held that
when a redacted confession, as here, avoids a “one-on-one correspondence”
between the confession and an easily identifiable defendant, the confrontation
clause is not violated. (United States v. Hoover (7th Cir. 2001) 246 F.3d 1054,
1059; see also United States v. Sutton (7th Cir. 2003) 337 F.3d 792, 800 [where
only two people were involved in the crime together, any reference to “another”
person would necessarily refer to the defendant; but where there were many
individuals involved, “another individual” could refer to many people besides the
defendant]; accord, People v. Fletcher, supra, 13 Cal.4th at p. 466 [redaction to
substitute neutral, nonidentifying terms for the name of a codefendant will be
10
Codefendant Huber’s full statement about the Denogean murder, as
recounted by Detective Kusch, can be summarized as follows: On the day
Denogean was killed, Huber drove her car to the Puente Hills Mall. Denogean
was accosted and tied up. Huber followed Denogean’s Mercedes car to various
ATM machines where cash was withdrawn, then followed it onto the 60 freeway.
She pulled over to the shoulder and watched as Denogean was walked down the
embankment. She heard several shots. She followed the Mercedes to a welfare
office, where the car was wiped down to remove fingerprints. The Mercedes was
abandoned. After midnight, at a convenience store ATM, Huber withdrew $200
from Denogean’s account.
52
sufficient if the codefendant “was just one of a large group of individuals any one
of whom could equally well have been the coparticipant mentioned in the
confession”].)
The jury also heard that codefendant Huber told the police she was not
present when Sams was murdered, but she later came into possession of his ATM
card and used it to withdraw $60 from his bank account. This statement again
implicates someone because Huber implied she was aware that a murder had
occurred. It is not clear from the statement itself, however, who or how many
persons committed the murder, and both Hubbard and Machuca were charged
along with defendant for the crimes committed against Sams. Thus, the statement
is similar to Huber’s statements regarding the Valdez and Denogean crimes.
Regarding the Nisbet crimes, the jury heard that Huber said “someone” gave her
Nisbet’s ring “as an engagement ring.” Although the jury could have figured out
the “someone” was defendant because of other evidence that Huber and defendant
were dating, the statement does not directly accuse “someone” of Nisbet’s murder.
In any event, we need not decide whether the admission of codefendant
Huber’s statements about the Valdez, Sams, Nisbet, and Denogean crimes violated
defendant’s rights under Bruton, supra, 391 U.S. 123, or Aranda, supra, 63 Cal.2d
518, because any assumed error was harmless beyond a reasonable doubt.
(Chapman v. California, supra, 386 U.S. at p. 24.) Voluminous independent
evidence — including fingerprints, ATM security camera photos, ballistics
evidence, and most importantly defendant’s own statements — connected
defendant to the robbery, kidnapping, and murder of Sams, Nisbet, and Denogean.
Indeed, defendant’s own statements supplied all of the elements of the charged
offenses and special circumstances related to those victims. Although defendant
denied involvement in the Valdez robbery and kidnapping, Valdez identified
defendant at trial as one of his kidnappers, and the evidence suggested that parts of
53
Valdez’s car had been removed and placed on defendant’s car. Valdez’s
testimony supplied all of the elements of the charged offenses related to his
kidnapping and robbery. Codefendant Huber’s statements added little to support
defendant’s convictions for the Valdez, Sams, Nisbet, and Denogean offenses. In
argument, the prosecutor did not urge the jury to rely on Huber’s statements to
convict defendant of the charges involving Valdez, Sams, Nisbet, or Denogean.
Therefore, even assuming the jury considered Huber’s statements against
defendant as to those crimes and special circumstances, such consideration could
not have affected the verdicts. (People v. Ervin, supra, 22 Cal.4th at p. 88 [no
prejudice from admission of codefendants’ redacted statements in light of other
incriminating evidence].)
D. Jury Selection Issues
1. Prosecution’s peremptory challenges
During jury selection, defendant’s counsel made four separate motions for a
mistrial based on People v. Wheeler (1978) 22 Cal.3d 258, challenging the
prosecutor’s use of peremptory challenges to remove five Black prospective jurors
and prospective alternate jurors from the panel. The trial court denied each motion
after listening to the prosecutor’s reasons for the strikes. The trial court also
rejected defendant’s Wheeler motion challenging the prosecutor’s use of
peremptory challenges to remove young people from the jury. The jury that tried
defendant included two Black jurors, one of whom served as the foreman at the
guilt phase. The jury also included one Hispanic juror, who served as the foreman
at the penalty phase.
Defendant now contends that the prosecutor’s use of peremptory challenges
to remove Black, Hispanic, and young persons from the jury violated his rights
under the Fourteenth Amendment to the United States Constitution and article I,
54
section 16 of the California Constitution. (See Batson v. Kentucky (1986) 476
U.S. 79; People v. Wheeler, supra, 22 Cal.3d 258.)
It is well settled that “[a] prosecutor’s use of peremptory challenges to
strike prospective jurors on the basis of group bias — that is, bias against
‘members of an identifiable group distinguished on racial, religious, ethnic, or
similar grounds’ — violates the right of a criminal defendant to trial by a jury
drawn from a representative cross-section of the community under article I,
section 16 of the California Constitution.” (People v. Avila, supra, 38 Cal.4th at
p. 541, quoting People v. Wheeler, supra, 22 Cal.3d at pp. 276-277.) “Such a
practice also violates the defendant’s right to equal protection under the
Fourteenth Amendment to the United States Constitution.” (People v. Avila,
supra, 38 Cal.4th at p. 541, citing Batson v. Kentucky, supra, 476 U.S. at p. 88.)
When a defendant moves at trial to challenge the prosecution’s use of
peremptory strikes, the following procedures and standards apply. “First, the
defendant must make out a prima facie case ‘by showing that the totality of the
relevant facts gives rise to an inference of discriminatory purpose.’ [Citation.]
Second, once the defendant has made out a prima facie case, the ‘burden shifts to
the State to explain adequately the racial exclusion’ by offering permissible race-
neutral justifications for the strikes. [Citations.] Third, ‘[i]f a race-neutral
explanation is tendered, the trial court must then decide . . . whether the opponent
of the strike has proved purposeful racial discrimination.’ [Citation.]” (Johnson v.
California (2005) 545 U.S. 162, 168, fn. omitted; see also Snyder v. Louisiana
(2008) ___ U.S. ___, ___ [128 S.Ct. 1203, 1207]; Miller-El v. Dretke (2005) 545
U.S. 231, 239.)
“[T]he critical question in determining whether [a party] has proved
purposeful discrimination at step three is the persuasiveness of the prosecutor’s
justification for his peremptory strike.” (Miller-El v. Cockrell (2003) 537 U.S.
55
322, 338-339.) The credibility of a prosecutor’s stated reasons for exercising a
peremptory challenge “can be measured by, among other factors . . . how
reasonable, or how improbable, the explanations are; and by whether the proffered
rationale has some basis in accepted trial strategy.” (Id. at p. 339.)
The existence or nonexistence of purposeful racial discrimination is a
question of fact. (See Miller-El v. Cockrell, supra, 537 U.S. at pp. 339-340.)
When the trial court has made a “ ‘sincere and reasoned attempt’ ” to evaluate the
prosecutor’s race neutral explanations for his exercise of peremptory strikes, we
review the trial court’s ruling on the question of purposeful discrimination under
the deferential substantial evidence standard. (People v. McDermott (2002) 28
Cal.4th 946, 971, quoting People v. Silva (2001) 25 Cal.4th 345, 385-386; see also
People v. Huggins (2006) 38 Cal.4th 175, 227.)
Because different considerations apply to each group that defendant
contends was improperly excluded, we examine each group separately below.
a. Black prospective jurors
i. Prospective Jurors C.S. and P.B.
Defendant made his first Wheeler motion11 after the prosecutor
peremptorily challenged Prospective Jurors C.S., a Black man, and P.B., a Black
woman. Without stating whether it had found a prima facie case, the trial court
asked “Mr. Urgo [prosecutor]?” The prosecutor explained that his reasons for
dismissing C.S. and P.B. were “based entirely on their views on the death
11
As noted, defendant’s counsel moved for a mistrial, citing People v.
Wheeler, supra, 22 Cal.3d 258. We conclude that the Wheeler issue and the
parallel Batson issue were properly raised. (People v. Yeoman, supra, 31 Cal.4th
at pp. 117-118.)
56
penalty.” After hearing argument from defense counsel, the trial court denied the
motion.
Before addressing whether substantial evidence supports the trial court’s
ruling, we address a preliminary matter. After defendant made his Wheeler
motions as to Prospective Jurors C.S. and P.B. (as well as S.F. and G.W.,
discussed below) and explained the basis for each motion, the trial court solicited
an explanation of reasons from the prosecutor without stating whether or not it had
found a prima facie case. As to Prospective Juror R.W., the prosecutor
volunteered his reasons without waiting for the trial court to ask. Here, “[b]y
requesting the prosecutor to explain his reasons for these challenges, the trial court
impliedly found that defendant had established a prima facie case.” (People v.
Hayes (1990) 52 Cal.3d 577, 605; see also People v. Arias (1996) 13 Cal.4th 92,
135; People v. Fuentes (1991) 54 Cal.3d 707, 716-717.) Contrary to the Attorney
General’s contention, this is not a case like People v. Bittaker (1989) 48 Cal.3d
1046, where we concluded that the trial court had not impliedly found a prima
facie case. In Bittaker, after soliciting the prosecutor’s response, the trial court
expressly found that a prima facie case had not been established. (Id. at pp. 1091-
1092.) Here, by contrast, “nothing in the record suggests” that the trial court had
not found a prima facie case. (People v. Hayes, supra, at p. 605, fn. 2.)
Moreover, by proffering his reasons for excusing R.W., the prosecutor
rendered moot the question whether a prima facie case existed. (See Hernandez v.
New York (1991) 500 U.S. 352, 359 [“Once a prosecutor has offered a race-neutral
explanation for the peremptory challenges and the trial court has ruled on the
ultimate question of intentional discrimination, the preliminary issue of whether
the defendant had made a prima facie showing becomes moot”].) We proceed to
the second and third steps of the Batson/Wheeler inquiry.
57
Defendant does not dispute that the prosecutor met his burden at the second
step of articulating a race-neutral explanation for each of the peremptory strikes
defendant challenged. (See Johnson v. California, supra, 545 U.S. at p. 168;
Purkett v. Elem (1995) 514 U.S. 765, 767-768.) Defendant argues, however, that
the trial court erred at the third step by finding that the prosecutor’s reasons for
excusing these prospective jurors were genuine and not pretextual. In this regard,
defendant asserts that we should not defer to the trial court’s findings because that
court did not make a “sincere and reasoned attempt” to evaluate the credibility of
the prosecutor’s proffered reasons, but rather denied each motion without any
comment or discussion. (See People v. Silva, supra, 25 Cal.4th at pp. 385-386;
People v. Hall (1983) 35 Cal.3d 161, 167-168.)
We disagree. The trial court denied the motions only after observing the
relevant voir dire and listening to the prosecutor’s reasons supporting each strike
and to any defense argument supporting the motions. Nothing in the record
suggests that the trial court either was unaware of its duty to evaluate the
credibility of the prosecutor’s reasons or that it failed to fulfill that duty. (People
v. McDermott, supra, 28 Cal.4th at p. 980; People v. Williams (1997) 16 Cal.4th
153, 189-190.) Moreover, the trial court was not required to question the
prosecutor or explain its findings on the record because, as we will explain, the
prosecutor’s reasons were neither inherently implausible nor unsupported by the
record. (People v. Silva, supra, 25 Cal.4th at p. 386.) Under these circumstances,
we apply the usual substantial evidence standard. (People v. McDermott, supra, at
p. 980; People v. Williams, supra, at pp. 189-190.)
The prosecutor explained that he struck Prospective Juror C.S. because C.S.
“preferred the reform approach rather than vote for death.” Substantial evidence
supports the conclusion that this reason was credible. On his questionnaire, C.S.
wrote that he was not a strong supporter of the death penalty. In response to a
58
question about how he felt about the death penalty, C.S. wrote: “I don’t agree or
disagree with the death penalty[.] [T]ry to reform that person reather [sic] than the
death penalty.” His answers to several other questions emphasized the possibility
of reform. When the prosecutor asked about those responses during voir dire, C.S.
stated: “I think that you could be reformed, yes.” Although C.S. also stated that
he felt he could make the decision between life imprisonment without parole and
the death penalty if asked to do so, on balance the record provides substantial
support for the trial court’s finding that the prosecutor reasonably was concerned
that C.S. might be reluctant to impose the death penalty. A prospective juror’s
feelings about the death penalty are reasonably related to trial strategy (see Miller-
El v. Cockrell, supra, 537 U.S. at p. 339) and are a legitimate race-neutral reason
for exercising a peremptory challenge (see People v. Ledesma (2006) 39 Cal.4th
641, 678; People v. Montiel (1993) 5 Cal.4th 877, 910, fn. 9).
Defendant asserts that a comparison of C.S.’s responses with the responses
of non-Black jurors whom the prosecutor did not excuse demonstrates that the
prosecutor’s reasons were pretextual. The United States Supreme Court has
instructed that such a comparative analysis may be a useful tool in proving
purposeful discrimination: “If a prosecutor’s proffered reason for striking a black
panelist applies just as well to an otherwise-similar nonblack who is permitted to
serve, that is evidence tending to prove purposeful discrimination to be considered
at Batson’s third step.” (Miller-El v. Dretke, supra, 545 U.S. at p. 241; see also
Snyder v. Louisiana, supra, ___ U.S. at p. ___ [128 S.Ct. at pp. 1211-1212.)
In recent cases, we have assumed without deciding that comparative juror
analysis is appropriate for the first time on appeal at the third step of the
59
Batson/Wheeler analysis. (People v. Stevens (2007) 41 Cal.4th 182, 196; People
v. Lewis and Oliver (2006) 39 Cal.4th 970, 1017-1024; People v. Ledesma, supra,
39 Cal.4th at pp. 679-680; People v. Avila, supra, 38 Cal.4th at p. 546; People v.
Huggins, supra, 38 Cal.4th at pp. 232-235; People v. Guerra (2006) 37 Cal.4th
1067, 1106.) We do the same here. In doing so, we bear in mind that “the
question is not whether we as a reviewing court find the challenged prospective
jurors similarly situated, or not, to those who were accepted, but whether the
record shows that the party making the peremptory challenges honestly believed
them not to be similarly situated in legitimate respects.” (People v. Huggins,
supra, at p. 233.)
Defendant points to two non-Black jurors whom the prosecutor did not
challenge who, like C.S., wrote on their questionnaires that they were not strong
supporters of the death penalty and who mentioned the role of rehabilitation.
Unlike C.S., however, neither of those jurors stressed the importance of
rehabilitation. J.A. stated in response to a question about the costs of
imprisonment that “[t]here may be a possibility of rehabilitation to help others in
prison.” And in response to a question about what government can do to solve the
crime problem, M.K. suggested “programs to rehabilitate.”12 In contrast, in
response to questions about whether the death penalty would be warranted in
particular situations, C.S. repeatedly stated that he “strongly disagreed” with the
statement because of the possibility of reform. In light of these responses, the
prosecutor reasonably could have believed that J.A.’s and M.K.’s views on
12
Before the start of trial, counsel stipulated that M.K. be excused for
personal medical reasons and be replaced by Alternate Juror M.H.
60
rehabilitation and reform were not similar to C.S.’s. Thus, the prosecutor’s failure
to challenge them does not undermine the credibility of his stated reason for
exercising a peremptory challenge against C.S.
The prosecutor struck Prospective Juror P.B. because she initially indicated
she felt unable to sit on a death penalty case and because in her questionnaire she
wrote she was unsure how she felt about the death penalty. The record supports
the trial court’s implied finding that these reasons were credible. On her
questionnaire, P.B. wrote she was not a strong supporter of the death penalty and
answered “not sure” in response to questions regarding whether the death penalty
would always be warranted in certain circumstances and to the question, “Tell us
how you feel about the death penalty.” On voir dire, when the prosecutor asked
the panel, “Is there anyone here now who feels that they just could not sit on a
death penalty case, they do not want to make that decision,” P.B. volunteered, “I
have to admit I’m not sure?” When questioned a few minutes later, she said: “I
could probably do it, but you know, it is just — right now I wouldn’t be sure, but
if I had to, I would.” These facts support the trial court’s assessment that the
prosecutor’s stated race-neutral reasons for peremptorily challenging P.B. were
genuine.
A comparative analysis again does not aid defendant. Defendant does not
claim that any of the non-Black sitting jurors, alternates or prospective jurors
whom the prosecutor did not strike volunteered, in response to a question to the
panel, that they felt they might not be able to sit on a death penalty jury.
Accordingly, the prosecutor reasonably could have believed that his proffered
reason for striking P.B. did not apply just as well to any other juror.
61
ii. Prospective Juror R.W.
Defendant made another Wheeler motion after the prosecutor used a
peremptory challenge to strike Prospective Juror R.W., a Black woman. Without
prompting by the trial court, the prosecutor volunteered his reasons for excusing
R.W.: “She seemed to have been educated, as most of the jurors, as to the exact
answers that will keep her on the jury, and I think the best as to what she said
originally, she said that she is not a strong supporter of death on [questionnaire
question No. 3]. She said that everyone is entitled to live, the death question
[No. 6], and death [question No. 11], she indicates that it is not always the answer.
[¶] I think when the time comes to it, she could not impose the death penalty,
regardless as to what she said in open court and that is why I kicked her.” The
trial court denied defendant’s Wheeler motion.
R.W.’s questionnaire responses support the prosecutor’s assessment that
she had scruples about the death penalty. R.W. wrote she was not a strong
supporter of the death penalty. Asked to explain her feelings on the death penalty,
she wrote: “It depends on the circumstances. I would have to know the crimes
involved.” In answer to a question about whether the death penalty helps society,
she wrote: “In a way yes and no. Yes because others may see what can happen to
them if they commit such a crime. And no because everyone is entitled to life.”
R.W. “agreed somewhat” that the death penalty should always be imposed for
intentional murder and when the defendant intentionally killed more than one
person in separate incidents, but in the former situation she “would need to know
the circumstances involved.” Asked whether the death penalty was always
warranted in the case of a murder during the course of a burglary and sexual
attack, she wrote she “agreed somewhat” because the “death penalty is not always
62
the answer.” She strongly disagreed that “convicted murderers should be swiftly
executed.” On balance, these answers reflect some hesitation about the death
penalty, and the prosecutor reasonably could have believed they reflected R.W.’s
true feelings and undermined her assurance on voir dire that she would not
automatically vote for life imprisonment without possibility of parole.
Nothing in the record causes us to doubt the sincerity of the prosecutor’s
assessment. Defendant points to R.W.’s questionnaire responses that he asserts
reflect a stance favorable to the prosecution. For example, R.W. believed that
criminal sentences should be harsher. Both her fiancé and her uncle were in law
enforcement, and she had been a victim of crime and was fearful of being
victimized again. She described crimes that “deserve” the death penalty as
intentional murder, killing children, and “killing someone to where they are
unrecognizable.” None of these expressed feelings was inherently in conflict with
the prosecutor’s assessment that R.W. might be hesitant to impose the death
penalty in this case, which did not involve child victims or mutilation. R.W. also
wrote in her questionnaire that she would expect the defendant to testify. Her
written explanation, however, reflected a defense orientation; she stated, “I feel
they should be able to tell their own side.” And on voir dire, she assured defense
counsel that she would not hold it against a defendant if he or she did not testify.
In sum, R.W. did not express leanings so favorable to the prosecution that the
prosecutor could not honestly believe that she was hesitant about the death
penalty.
Defendant further argues that a comparative analysis shows that the
prosecutor’s reasons for striking Prospective Juror R.W. were pretextual. He
63
points to 14 non-Black jurors and prospective jurors whom the prosecutor did not
strike who, like R.W., wrote on their questionnaires they were not strong
supporters of the death penalty. But the prosecutor reasonably could have felt that
eight of these 14 panelists would be more willing than R.W. to impose the death
penalty, given their views about its social value. Thus, unlike R.W. (who, in
response to the question about whether the death penalty helps society, answered
“yes and no” because “everyone is entitled to life”), seven of these panelists (K.F.,
C.H., D.S., M.H., R.S., M.S., and H.D.) stated unequivocally in their
questionnaires that they believed the death penalty helps society in one or more
ways, such as by deterring crime, incapacitating the offender, saving the taxpayers
money, or maintaining social order. The other panelist (G.P.) did not believe the
death penalty helped society, but only because it was not used frequently enough
to have any deterrent value. The prosecutor’s failure to excuse these eight
panelists thus provides no evidence that his peremptory challenge against R.W.
was based on her race.
Regarding the other six non-Black jurors and prospective jurors defendant
identifies whom the prosecutor did not strike and who were not strong death
penalty supporters, their overall responses reflected more pro-death-penalty views
than R.W.’s. D.N. wrote that “there is a place for the death penalty”; that there
was “no other option” but the death penalty for some “horrendous” crimes; that
someone who kills more than one person in separate incidents should get the death
penalty because that person “has no respect for human life”; and that convicted
murderers should be swiftly executed. R.P. previously had served as a juror on a
death penalty case in which a verdict was reached, and stated on voir dire that he
had no problem with how the judicial system worked in that case. P.M. wrote on
64
her questionnaire that her support of the death penalty was 7 on a scale of 1 to 10,
in part because “I see no need for us to pay to house someone in prison for life”;
she believed that convicted murderers should be swiftly executed; and she strongly
agreed that a person who kills more than one person on separate occasions should
always receive the death penalty (although she retreated somewhat from that view
on voir dire). J.A. stated on her questionnaire that she strongly agreed that a
person who kills more than one person in separate incidents should always get the
death penalty and that convicted murderers should be swiftly executed because “if
a person has been given the death penalty I see no reason to wait.” M.K. stated
that she would lean in favor of the death penalty for a person who kills more than
one person on separate occasions. J.G. stated on her questionnaire that she was in
favor of the death penalty but would have to “be sure the circumstances of the
crime warranted it,” and that she believed serial killers should get the death
penalty. On the whole, the prosecutor reasonably could have believed that these
six prospective and selected jurors would be more favorably disposed toward the
death penalty than R.W., so his failure to excuse them does not support an
inference that his excusal of R.W. was based on her race.13
Finally, defendant contends that the prosecutor’s failure to ask R.W. any
questions on voir dire and his exercise of a peremptory challenge against her
immediately after passing her for cause reflect a “predetermined intention to
challenge her based on her race.” The United States Supreme Court has noted that
13
Defendant argues that on voir dire K.F., J.G., C.H., D.S., G.P., H.D., and
R.S. “repudiated their more strident positions” on the death penalty that had been
expressed in their questionnaires. Although some of these panelists clarified their
questionnaire answers after being educated on voir dire about death penalty law
and the trial process, we find nothing in their voir dire responses that reasonably
would have caused the prosecutor to believe that their views on the death penalty
were as unfavorable to the prosecution as R.W.’s.
65
a party’s failure to engage in meaningful voir dire on a topic the party says is
important can suggest the stated reason is pretextual. (Miller-El v. Dretke, supra,
545 U.S. at pp. 246, 250, fn. 8.) Here, the prosecutor’s failure to explore R.W.’s
views on voir dire is somewhat troubling. The prosecutor, however, had the
opportunity to observe R.W.’s demeanor during questioning by the trial court and
defense counsel, and, as explained above, no other of the 14 identified non-Black,
nonstricken jurors or prospective jurors expressed quite the level of hesitation
about the death penalty on his or her questionnaire that R.W. did. Therefore, the
prosecutor’s failure to question her on voir dire does not undermine the trial
court’s conclusion that the prosecutor’s stated reasons for striking her were not
pretextual.
iii. Prospective Juror S.F.
Defendant made another Wheeler motion after the prosecutor used a
peremptory challenge to strike Prospective Juror S.F., a Black woman. Counsel
for codefendant Machuca joined and noted that the prosecutor several times had
accepted a jury that included S.F. Turning to the prosecutor, the trial court asked:
“All right. Any comment?” The prosecutor explained that although he had been
willing to accept a jury that he was “not totally pleased with” on a number of
occasions, since he now had many more peremptory challenges available than the
defense did he had decided to use those challenges to dismiss jurors that he was
“not totally comfortable with.” He explained that he struck S.F. because she had a
degree in psychology, had taken many classes in psychology and sociology, and
had been a correctional counselor who evaluated committed felons. The
prosecutor expressed concern that S.F. would rely on her educational and
occupational background when evaluating anticipated psychiatric testimony at the
66
penalty phase and would not be inclined to vote for the death penalty. The trial
court denied defendant’s Wheeler motion.
The record supports the trial court’s conclusion that the prosecutor’s stated
reasons were credible. S.F. was a Parole Agent III for the State of California who
in her questionnaire described her previous occupation as “Correctional counselor
— Diagnostic evaluations from a sociological standpoint on committed felons” in
a men’s prison. In response to a question about whether she had taken courses in
the behavioral sciences, she wrote: “Many, many, many, B.S. Psychology, minor
Sociology. You name it, I probably took it to get the degree.” In light of this
educational and occupational background, the prosecutor reasonably could have
been concerned that S.F. would rely on her background and would be disinclined
to vote for the death penalty.
Defendant contends that the prosecutor’s failure to peremptorily challenge
several White jurors and prospective jurors with backgrounds similar to S.F.’s
undermines the credibility of the prosecutor’s stated reason for peremptorily
challenging S.F. But none of the jurors or prospective jurors whom the prosecutor
did not challenge had the extensive educational background in psychology and
sociology, nor the occupational background evaluating prisoners, that S.F. had.14
14
J.A. was a registered nurse and nursing coordinator at the Lanterman
Developmental Center who had taken courses in psychiatric nursing, grief
counseling, “dealing with death and dying,” and bioethics. C.H. was a
“psychiatric technician/recorder” at Lanterman who had taken “psychology 1A”
and child development courses. D.N. was a groundskeeper for a school district,
had previously worked as a security guard and a delivery driver, and had taken
courses in psychology and sociology but majored in electronics and general
education. M.S. was a teacher who had taken courses in beginning psychology,
sociology for teachers, and human relations. H.D. was a retired registered nurse
who had worked as an education director for a hospital and as a real estate agent,
and had taken psychology and sociology courses in college. P.M. was a
(footnote continued on next page)
67
Accordingly, the prosecutor’s failure to peremptorily challenge these panelists
does not support an inference that the prosecutor’s challenge to S.F. was
pretextual.
Defendant points out that the prosecutor asked no questions of S.F. on voir
dire before peremptorily challenging her. But the prosecutor reasonably could
have believed that voir dire would do nothing to clarify S.F.’s questionnaire
responses, which were unambiguous and themselves sufficient to support the
exercise of a peremptory challenge. (See People v. Lewis and Oliver, supra, 39
Cal.4th at p. 1018, fn. 14.) Moreover, the prosecutor exercised a peremptory
challenge against C.G., a White prospective juror with an occupational
background similar to S.F.’s. C.G. was an intake counselor at the California
Institute for Men, responsible for preparing social evaluations of incoming
prisoners. Assuming comparative analysis is appropriate for the first time on
appeal, the prosecutor’s peremptory challenge of C.G. supports an inference that
his challenge to S.F. was not pretextual. (See People v. Wheeler, supra, 22 Cal.3d
at p. 282 [prosecutor may sustain burden of justification by, among other things,
demonstrating “that in the course of this same voir dire he also challenged
similarly situated members of the majority group on identical or comparable
grounds”].) The totality of the circumstances thus supports the trial court’s
(footnote continued from previous page)
management analyst for the Internal Revenue Service and the Treasury
Department who had majored in social sciences and accounting and had taken
some sociology and psychology courses in college.
68
conclusion that the prosecutor’s stated reasons for striking S.F. were not
pretextual.15
15
At oral argument, defendant’s counsel argued that the record contradicts the
prosecutor’s statement that S.F. was a correctional counselor. Counsel pointed out
that at the time of defendant’s Wheeler motion S.F. had been a parole officer for
20 years. We disagree. The prosecutor stated he struck S.F. because “under
occupation she lists correctional counselor and she describes that as a
diagnostician, which to me she evaluates, from a sociological standpoint,
committed felons.” (Italics added.) The prosecutor explained that he was
concerned that in light of S.F.’s “background, not only educational, but
occupational,” she would be disinclined to vote for death. (Italics added.) The
record supports the prosecutor’s credibility. In the occupation section of her
questionnaire, S.F. listed “correctional counselor” in response to the question
“where did you previously work and what did you do?” Although the prosecutor
misspoke when he stated that S.F. “evaluates” rather than “evaluated” committed
felons, nothing in the record suggests that the prosecutor was attempting to
mislead the court as to S.F.’s occupation or was otherwise being dishonest.
Indeed, the court was aware from defense counsel’s argument that S.F. was
currently a parole officer. Further, the prosecutor made clear that it was S.F.’s
total occupational “background” that concerned him, not merely her current job.
Counsel also argued that the prosecutor’s failure to question S.F. about her
occupation on voir dire, in contrast to his questioning of C.G. about his
occupation, is evidence that he struck S.F. because of her race. Again, we are not
persuaded. On her questionnaire S.F. fully explained her prior occupation, stating
she had been a “Correctional counselor — Diagnostic evaluations from a
sociological standpoint on committed felons” in a men’s prison. In light of that
detailed explanation, the prosecutor reasonably could have believed no
questioning of S.F. was necessary. In contrast, on his questionnaire C.G. wrote
only that he was a “counselor” at the “California Institute for Men.” The cryptic
nature of this response fully justified the prosecutor in questioning C.G. on voir
dire about what precisely his job entailed. Further, the prosecutor questioned C.G.
just enough to elicit the response that his job was to “prepare a social evaluation”
on each incoming prisoner. The record thus provides a reasonable explanation for
the differential questioning and negates any inference that the questioning
evidences discriminatory animus.
Finally, counsel contended that if the prosecutor was truly concerned that
S.F.’s educational and occupational background would make her sympathetic to
the defendants at the penalty phase, then he “should have” been equally concerned
about J.A. and C.H., both of whom he allowed to serve on the jury and both of
(footnote continued on next page)
69
iv. Prospective Alternate Juror G.W.
Defendant made a final Wheeler motion after the prosecutor used a
peremptory challenge to strike Prospective Alternate Juror G.W., a Black woman.
Again without stating whether it had found a prima facie case, the trial court
stated: “All right. Mr. Urgo [prosecutor]?” The prosecutor responded: “She was
dismissed for her views on the death penalty, your Honor. She stated so clearly in
the questionnaire that she could never vote for the death penalty, yet she stated
here that just because she heard the charges read that she could do it and she also
indicated she could give up her religious beliefs to do it. [¶] I frankly don’t
believe that someone who is as adamant as she was in saying that she could never
vote for the death penalty can change like that.” The trial court denied defendant’s
Wheeler motion.
The record supports the credibility of the prosecutor’s assertions. Although
G.W. did not state in her questionnaire that she could never vote for the death
(footnote continued from previous page)
whom were employed at the Lanterman Developmental Center, had worked with
people with mental retardation, and had taken courses in the behavioral sciences.
Counsel pointed out that Hubbard’s competency trial had involved evidence of
mental retardation. But there is no evidence in the record that J.A.’s or C.H.’s
occupations involved them in the sociological evaluation of prisoners, which is
what the prosecutor said concerned him about S.F., and is what apparently
concerned him about C.G. It was reasonable for the prosecutor to believe that
persons with only general experience in the mental health field might not be as
sympathetic to the defendants as persons whose occupations exposed them to the
social and psychological problems of convicted criminals. On this record, we
cannot say that the trial court erred when it found the prosecutor’s stated reasons
for striking S.F. were genuine.
70
penalty,16 her answers to several questions revealed strong religious and other
scruples about the death penalty. She wrote she was not a strong supporter of the
death penalty. In response to the question “tell us how you feel about the death
penalty,” she wrote: “I feel that you are just as bad as the person that did the
crime. This person may repent if he get life in prison. David in the Bible did. He
killed someone.” She answered “no” to a question about whether the death
penalty helps society. In response to a question about whether there are any
murders that do not deserve the death penalty, G.W. wrote: “I do not think anyone
deserve the death penalty. Person may repent if he get life in prison.” When
asked whether certain crimes always warrant the death penalty, she answered
“Person will be punish more if he stay in prison for life,” and “[t]his person may
have a chance to repent while he is in prison.” And she stated that life
imprisonment without the possibility of parole was a more severe punishment than
the death penalty.
During voir dire questioning by the trial court, Prospective Juror G.W.
asserted that she could be fair and impartial and could consider both sentencing
alternatives, death or life imprisonment without the possibility of parole, if the
case reached the penalty phase. When defendant’s counsel asked G.W. about her
questionnaire answers, G.W. explained: “Well, at the time I was answering those
questions I didn’t have my glasses and I did the best I could. If I had taken it —
been able to take it home, it would have been different.” She then assured counsel
that she could impose the death penalty if she felt it was appropriate after hearing
the evidence. During questioning by the prosecutor, G.W. said that she recalled
16
G.W. answered “no” to a question asking whether she would always vote
for life imprisonment without the possibility of parole if the case reached the
penalty phase.
71
her questionnaire responses, but that being in court and listening to the judge read
the charges had caused her to change her mind about whether she could impose
the death penalty. She said she did not think she would “hold by those same
[religious] beliefs” that caused her to write the answers she did in the
questionnaire. In light of G.W.’s strongly expressed opposition to the death
penalty in her questionnaire and her dubious explanation on voir dire of her
purported change of mind, the record supports the trial court’s conclusion that the
prosecutor’s skepticism about G.W.’s ability to impose the death penalty was
genuine.
A comparative analysis again does not aid defendant. He points to no
sitting or prospective juror whom the prosecutor did not challenge who expressed
religious scruples against the death penalty as strong as those G.W. expressed.
Accordingly, the prosecutor honestly could have believed that no panelist was
similar to G.W.
Finally, we note that at the end of selection of the jurors, and before
selection of the alternate jurors, three Black jurors — R.D., A.R., and J.Y. — were
seated in the jury box.17 The presence of these jurors on the panel is “ ‘an
indication of the prosecutor’s good faith in exercising his peremptories.’ ”
(People v. Huggins, supra, 38 Cal.4th at p. 236, quoting People v. Snow (1987) 44
Cal.3d 216, 225.) For all of these reasons, the trial court did not err in finding that
defendant did not establish purposeful discrimination in the prosecutor’s exercise
of peremptory challenges.
17
R.D. and A.R. served on the jury. Under a stipulation of counsel, J.Y. was
excused for personal medical reasons and replaced by Alternate Juror M.S. before
the start of trial.
72
b. Hispanic prospective jurors
After defendant’s counsel made his Wheeler motion with respect to
Prospective Juror R.W., but before the trial court had ruled, the following
exchange took place:
“Mr. Tyre [Machuca’s counsel]: Your Honor, I would join in that. The
other reason also is I think his other peremptories, besides the Blacks, I believe
that there is [sic] three to four Hispanics that he has also kicked off, so it appears
to be a systematic excusal of minorities.
“Mr. Coleman [defendant’s counsel]: [J.L.] was one, the last Spanish that
he kicked out.
“Mr. Gornik [Hubbard’s counsel]: I join in the motion and if it hasn’t been
explicitly stated, [R.W.], who was just released, is Black and three of the four
defendants are Black.”
The prosecutor responded by making a Wheeler motion of his own
contesting defense counsel’s use of peremptory challenges against Hispanics. He
then explained his reasons for challenging R.W. The trial court intervened,
saying, “Well, let’s handle one thing at a time.” After ascertaining that there
would be no further argument regarding R.W., the trial court denied that motion.
Defendant’s counsel then joined the prosecutor’s Wheeler motion regarding
Hispanics. When codefendant Machuca’s counsel stated, “We have no reasons,
your Honor,” the prosecutor withdrew his Wheeler motion. The court then took a
recess. After the recess, voir dire continued without further discussion of the
Wheeler motions.
Defendant now contends that the trial court erred in denying his Wheeler
motion as to Hispanic Prospective Jurors C.P. and J.L. We disagree. The failure
to articulate clearly a Wheeler/Batson objection forfeits the issue for appeal.
(People v. Gallego (1990) 52 Cal.3d 115, 166.) Here, it is not clear that defendant
73
made a Wheeler motion regarding the prosecutor’s excusal of Hispanics.
Machuca’s counsel’s comment that the prosecutor had “kicked” Hispanics appears
to have been intended to bolster the argument that the prosecutor’s excusal of
R.W. violated Wheeler because there was “systematic excusal of minorities.”
Defendant’s counsel’s comment — “[J.L.] was one, the last Spanish that he kicked
out” — hardly clarified the matter, and it was followed immediately by Hubbard’s
counsel’s comment that three of the four defendants were Black. In context, these
comments seem intended to support the defense motion regarding Blacks, not as a
separate motion regarding Hispanics.
Even assuming defendant properly made a Wheeler/Batson motion
regarding the prosecutor’s excusal of Hispanics, we conclude the issue is not
preserved for appeal. Failure to press for a ruling on a motion to exclude evidence
forfeits appellate review of the claim because such failure deprives the trial court
of the opportunity to correct potential error in the first instance. (People v. Ramos
(1997) 15 Cal.4th 1133, 1171.) The situation here is analogous. When defense
counsel mentioned the prosecutor’s excusal of Hispanic prospective jurors, the
trial court was confronted with simultaneous argument on two other Wheeler
motions: the defense motion regarding R.W., and the prosecutor’s motion
regarding defense excusals of Hispanics. Under the circumstances, defense
counsel at least had an obligation to remind the court that it had not yet addressed
the prosecutor’s excusal of Hispanics, so that the court would have the opportunity
to correct the alleged error. Here, the record does not reflect whether the trial
court ignored counsel’s comments about Hispanics, or simply forgot about them.
Either way, it was incumbent on counsel, if they wished to pursue the matter, to
secure a ruling from the trial court. The failure to do so forfeits the claim.
74
c. Young
prospective
jurors
Defendant argues that the trial court erroneously denied his motion
challenging the prosecutor’s use of peremptory challenges to exclude young
persons from the jury. As defendant acknowledges, neither this court nor the
United States Supreme Court has ever held that young persons are a cognizable
group under Batson or Wheeler. Indeed, existing authority holds, to the contrary,
that young persons are not a cognizable group. (E.g., People v. McGhee (1987)
193 Cal.App.3d 1333, 1351-1352 [young persons not a cognizable class under
Wheeler]; United States v. Pichay (9th Cir. 1993) 986 F.2d 1259, 1960 [young
persons not a cognizable group for purposes of equal protection challenge to petit
jury under Batson]; see also People v. Ayala (2000) 23 Cal.4th 225, 257
[“ ‘California courts have not been receptive to the argument that age alone
identifies a distinctive or cognizable group within the meaning of [the
representative cross-section] rule’ ”].) We decline to extend Batson and Wheeler
beyond their current parameters.
2. Excusals for cause
Defendant asserts that the trial court erroneously excused for cause two
prospective jurors who were equivocal about whether their attitude toward the
death penalty would affect their deliberations at the penalty phase, violating his
right to an impartial jury under the Sixth and Fourteenth Amendments to the
United States Constitution and article I, section 16 of the California Constitution.
(See Morgan v. Illinois (1992) 504 U.S. 719, 726-728; People v. Williams, supra,
16 Cal.4th at pp. 666-667; People v. Johnson (1992) 3 Cal.4th 1183, 1210.) “To
achieve the constitutional imperative of impartiality, the law permits a prospective
juror to be challenged for cause only if his or her views in favor of or against
capital punishment ‘would “prevent or substantially impair the performance of his
75
[or her] duties as a juror” ’ in accordance with the court’s instructions and the
juror’s oath. [Citations.]” (People v. Blair (2005) 36 Cal.4th 686, 741.)
“ ‘ “A prospective juror is properly excluded if he or she is unable to
conscientiously consider all of the sentencing alternatives, including the death
penalty where appropriate.” [Citation.]’ [Citation.] In addition, ‘ “[o]n appeal,
we will uphold the trial court’s ruling if it is fairly supported by the record,
accepting as binding the trial court’s determination as to the prospective juror’s
true state of mind when the prospective juror has made statements that are
conflicting or ambiguous.” [Citations.]’ ” (People v. Jenkins (2000) 22 Cal.4th
900, 987.)
At the outset, defendant asserts that “the current rule which this Court is
applying — holding that a trial court may rely on a prospective juror’s equivocal
responses to discharge that juror in a capital case,” is inconsistent with United
States Supreme Court precedent, including Adams v. Texas (1980) 448 U.S. 38
and Gray v. Mississippi (1987) 481 U.S. 648. We have rejected the contention
that our rule is inconsistent with Gray v. Mississippi. (People v. Moon (2005) 37
Cal.4th 1, 14-15.) The high court’s most recent ruling on this subject reaffirms
that deference to the trial court is appropriate when the prospective juror’s remarks
are ambiguous or equivocal. The high court explained that “deference to the trial
court is appropriate because it is in a position to assess the demeanor of the venire,
and of the individuals who compose it, a factor of critical importance in assessing
the attitude and qualifications of potential jurors.” (Uttecht v. Brown (2007) ___
U.S. ___, ___ [127 S.Ct. 2218, 2224]; accord, Wainwright v. Witt (1985) 469 U.S.
412, 426 [“deference must be paid to the trial judge who sees and hears the
juror”].) Moreover, “when there is ambiguity in a prospective juror’s statements,
‘the trial court, aided as it undoubtedly [is] by its assessment of [the venireman’s]
demeanor, [is] entitled to resolve it in favor of the State.’ ” (Uttecht v. Brown,
76
supra, at p. ___ [127 S.Ct. at p. 2223], quoting Wainwright v. Witt, supra, at
p. 434.) These statements foreclose defendant’s claim that our rule is inconsistent
with federal law. Accordingly, we pay our usual deference to the trial court’s
resolution of the factual question of the prospective jurors’ true state of mind
based on that court’s unique ability to “ ‘observe and listen to the prospective
jurors.’ ” (People v. Griffin (2004) 33 Cal.4th 536, 559, quoting People v. Cain
(1995) 10 Cal.4th 1, 60.)
Turning to the merits, we conclude that substantial evidence supports the
trial court’s conclusion that Prospective Jurors H.G. and L.H. held views about
capital punishment that would prevent or substantially impair their ability to
perform their duties as jurors.
On her questionnaire, Prospective Juror H.G. expressed general opposition
to the death penalty, stating several times that no murder deserves the death
penalty and that she did not “believe in the death penalty.” On voir dire, the trial
court asked her: “Is there anything that you would like to bring to the court’s
attention that might in any way affect your ability to be a fair and impartial juror in
this particular case?” She answered: “No, other than that I at this point do not
believe in the death sentence.” When the court and counsel attempted to clarify
her views, she said she would not automatically vote for death or life
imprisonment without possibility of parole if the case reached the penalty phase,
and also that she would follow the court’s instructions, would consider both
sentencing options, and would fairly consider all the evidence before deciding on
the penalty of death or life imprisonment without possibility of parole. During
questioning by the prosecutor, H.G. reiterated that she believed there were
alternatives to the death penalty, that she did not “like” the death penalty, and that
she did not “believe you should take a life.” The prosecutor then asked H.G.
whether she could “put aside” her personal beliefs and vote for death “if the
77
aggravating circumstances outweighed the mitigating.” H.G. answered, “I don’t
think with my frame of mind now that I could vote for death.” (Italics added.) The
exchange continued:
“Mr. Urgo: You don’t think you could?
“Prospective Juror H.G.: No.
“Mr. Urgo: Is there anything anybody can say to change your mind about
that? That is, do you think — do you think if some of these attorneys got back up
here and they started to talk to you, do you think could you change your mind and
say, well, yeah, I could do it?
“Prospective Juror H.G.: Well, with my entire self right now, I don’t think I
would change. It is just — I just don’t believe in the death penalty. [¶] . . . [¶]
“Mr. Urgo: This is — the death penalty, though, is something that you
yourself could not impose; is that correct?
“Prospective Juror H.G.: I don’t think that I could impose the death
penalty. [¶] . . . [¶]
“Mr. Urgo: You, however, believe that you at least don’t think you could
impose the death penalty?
“Prospective Juror H.G.: I don’t think and I say it loudly, I don’t think I
could impose the death penalty. I think that — I think there could be other
options. I just — it is my belief. I just don’t believe in the death penalty.
“Mr. Urgo: Well, what would you do at the end of the trial if after all the
— after all the penalty phase evidence came out, if you believe that the
aggravating circumstances outweigh the mitigating circumstances, would you
nonetheless vote — vote for death, or would you say, no, I can’t do that, I’m going
to look at other options?
“Prospective Juror H.G.: I would not — unless some big change comes to
my mind, I would not vote for the death penalty.” (Italics added.)
78
This exchange amply supports the trial court’s conclusion that Prospective
Juror H.G.’s views on capital punishment would prevent or substantially impair
her ability to perform her duties as a juror in this capital case. H.G. stated, no less
than four times, both “loudly” and “with my frame of mind now,” that she did not
think she could impose the death penalty or vote for the death penalty if the case
came to the penalty phase. She also said “with my entire self” that she did not
think there was anything that would change her mind. With these statements,
H.G. emphatically expressed her belief that she could not consider the death
penalty as an option in this case. The trial court did not err in excluding H.G. for
cause.
Defendant argues that Prospective Juror H.G. was not excludable for cause
because her responses show only that she did not “think” she could impose the
death penalty and because she left open the possibility of a change of mind. We
disagree. In Wainwright itself, the United States Supreme Court held a
prospective juror was properly excluded where, in response to a question whether
her view on the death penalty would interfere with her judging the guilt or
innocence of the defendant, the juror responded, “I think it would.” (Wainwright
v. Witt, supra, 469 U.S. at pp. 415-416.) Moreover, the trial court was entitled to
resolve any ambiguity created by the statement “unless some big change comes to
my mind” in favor of the prosecution, based on its assessment of H.G.’s
demeanor. (See Wainwright v. Witt, supra, at p. 434.) As the high court has
explained, “many veniremen simply cannot be asked enough questions to reach
the point where their bias has been made ‘unmistakably clear.’ ” (Id. at pp. 424-
425; accord, Uttecht v. Brown, supra, ___ U.S. at p. ___ [127 S.Ct. at p. 2223].)
Here, H.G.’s responses to the questions posed to her enabled the trial court to
determine that she would not consider the death penalty as an option and that it
was unrealistic to expect her to change her mind. No more was required.
79
Like H.G., Prospective Alternate Juror L.H. expressed general opposition to
the death penalty in her questionnaire. She stated that if the case reached the
penalty phase she would always vote for life imprisonment without possibility of
parole, that she was not a strong supporter of the death penalty because “in almost
all circumstances it is inappropriate for the government to kill,” that the death
penalty does not deter criminals, that murderers who torture their victims deserve
the death penalty but most others do not, and that it was not right for the
government to kill someone.
On voir dire, the trial court and counsel attempted to clarify L.H.’s views.
When the court asked L.H. whether there was “anything that you would like to
bring to our attention that might affect your ability in any way to be a fair and
impartial juror,” L.H. answered, “Well, I think I would be [sic] a problem
inflicting capital punishment.” L.H. then answered “no” to a question whether she
would always vote for the death penalty if the case reached the penalty phase, but
“yes” to a question whether she would always vote for life imprisonment without
possibility of parole if the case reached that phase. When asked whether there
were any circumstances under which she could vote for the death penalty, L.H.
responded, “I really don’t think so.”
Codefendant Hubbard’s counsel then questioned L.H. Qualifying her
previous statements, L.H. admitted she could conceive of a type of case that would
cause her to vote for the death penalty, so she was not “totally precluding” that
possibility. Under questioning by the prosecutor, however, L.H. clarified that
there were only a “very few circumstances” under which she could vote for the
death penalty, giving as an example the Jeffrey Dahmer case.
The following colloquy between the trial court and L.H. then ensued:
“The Court: And so there are circumstances under which you might vote
for the death penalty? You are not totally opposed to it?
80
“Prospective Alternate Juror L.H.: That’s correct.
“The Court: And depending upon what you find out as a result of having
heard this case, in the event that you find them guilty and find a special
circumstance to be true, conceivably you could vote for the death penalty?
“Prospective Alternate Juror L.H.: Conceivably, but I think it unlikely. [¶]
. . . [¶]
“The Court: Does that mean you’ve made up your mind?
“Prospective Alternate Juror L.H.: I think actually it does mean I’ve made
up my mind.
“The Court [to counsel for defendants]: Well, now do you want to pursue
that any more?
“Mr. Gornik: Well, your Honor, I think she has indicated there is the
possibility. I think that is enough.
“The Court: Well, the last expression was she has made up her mind and
the answer is no.” (Italics added.) The trial court then excused L.H. for cause.
This record provides ample support for the trial court’s finding that,
because L.H. had “made up her mind,” her views on the death penalty would
impair her ability to fulfill her duties as a juror in this case. We bear in mind that
in assessing challenges for cause, the crucial inquiry is “whether the juror’s views
about capital punishment would prevent or impair the juror’s ability to return a
verdict of death in the case before the juror.” (People v. Visciotti (1992) 2 Cal.4th
1, 45, fn. 16, italics added; accord, People v. Heard (2003) 31 Cal.4th 946, 958.)
Here, L.H.’s questionnaire and voir dire responses demonstrate that she was
familiar with the facts of this case from media coverage, and the charges had been
read to her. With those facts and charges in mind, L.H. said she “conceivably”
could vote for the death penalty in this case, but she thought it unlikely. When
pressed, she acknowledged that she had made up her mind. Although L.H. stated
81
that she might be willing to consider the death penalty in certain very narrow
circumstances, she gave as an example the Jeffrey Dahmer case, a case with facts
far removed from those here.18
Defendant contends that L.H.’s final answer, that she had “made up [her]
mind,” was ambiguous and therefore the trial court was obligated to question her
further. In People v. Heard, we stated: “If the trial court remained uncertain as to
whether [Prospective Juror] H.’s views concerning the death penalty would impair
his ability to follow the law or to otherwise perform his duties as a juror, the court
was free, of course, to follow up with additional questions.” (People v. Heard,
supra, 31 Cal.4th at p. 965.) Here, however, the trial court was not uncertain.
Rather, after observing L.H.’s demeanor, the court interpreted her response as an
unambiguous statement that she had made up her mind not to vote for the death
penalty in this case. The court therefore was not obliged to question L.H. further.
Moreover, defense counsel’s decision not to conduct further questioning suggests
they believed L.H. could not be rehabilitated. (Cf. Wainwright v. Witt, supra, 469
U.S. at pp. 434-435.)
18
Jeffrey L. Dahmer confessed to killing 17 men and boys between 1978 and
1991 in Ohio and Wisconsin. He was convicted in Milwaukee of 15 of those
murders and was sentenced to 15 consecutive life terms in prison. He did not
appeal. The murders, which involved acts of necrophilia, dismemberment, and
cannibalism, drew national attention. Dahmer died in a Wisconsin prison in 1994
after being bludgeoned by another inmate. (Terry, Jeffrey Dahmer, Multiple
Killer, Is Bludgeoned to Death in Prison, N.Y. Times (Nov. 29, 1994); 15 Life
Terms and No Parole for Dahmer, N.Y. Times (Feb. 18, 1992); Barron & Tabor,
17 Killed, and a Life Is Searched for Clues, N.Y. Times (Aug. 4, 1991); Celis,
Slayings Point Up Lapses by Milwaukee’s Agencies, N.Y. Times (July 30, 1991);
see also Kwan, Intersections of Race, Ethnicity, Class, Gender & Sexual
Orientation: Jeffrey Dahmer and the Cosynthesis of Categories (1997) 48
Hastings L.J. 1257.)
82
3. Denial of defendant’s challenge for cause
Defendant contends that the trial court’s denial of his challenge for cause to
Prospective Juror S.H. violated his rights to due process and an impartial jury
under the Sixth and Fourteenth Amendments to the United States Constitution. As
we have explained, a prospective juror may be removed for cause only if that
juror’s views in favor of or against capital punishment “would ‘prevent or
substantially impair the performance of his [or her] duties as a juror’ ” in
accordance with the trial court’s instructions and the juror’s oath. (Wainwright v.
Witt, supra, 469 U.S. at p. 424, quoting Adams v. Texas, supra, 448 U.S. at p. 45.)
“[T]he qualification standard operates in the same manner whether a prospective
juror’s views are for or against the death penalty.” (People v. Cash (2002) 28
Cal.4th 703, 720, citing Morgan v. Illinois, supra, 504 U.S. at pp. 726-728.) Here,
the trial court properly declined to excuse S.H. under this standard.
Prospective Juror S.H. expressed strong pro-death-penalty views on his
questionnaire. For example, he stated that he strongly supported the death penalty
because “if someone kills a human being wrongfully then that person may be
capable of killing more,” that there were no murders that did not deserve the death
penalty, that multiple murderers and murderers who kill during a burglary and
sexual attack should always receive the death penalty, and that intentional
murderers should get the death penalty except when a person kills so that the
victim “would not have to suffer a slow death.” In his view, the death penalty
helps society by reducing overcrowding in prisons and by providing “relief” for
the people involved. On the other hand, he affirmed he would follow the trial
court’s instructions even if they conflicted with his beliefs or opinions, and he
stated he would want information about a defendant’s background and family
before deciding which penalty to impose.
83
On voir dire, S.H. made conflicting statements. For example, he said that
he would not automatically impose either the death penalty or life imprisonment
without possibility of parole if the case reached the penalty phase, and that he
would not vote for the death penalty “almost every time.” On the other hand, he
said he stood by his questionnaire responses that there were no murders that did
not deserve the death penalty and that the death penalty should always be imposed
in cases of multiple murder. Defendant’s counsel asked: “Now, if we get to the
penalty phase in this trial and the defendants in this case are convicted of more
than one killing, according to what you said, and you have answered affirmative,
that you are going to impose the death penalty; isn’t that correct?” S.H. answered,
“Yes.” The voir dire continued for some time in this ping-pong manner, with S.H.
stating in response to questioning from defense counsel that he would always vote
for the death penalty if he found a defendant guilty of multiple murders with use
of a weapon, but reaffirming in response to questioning from the prosecutor and
the court that he would consider life imprisonment without parole as an option
even in cases of multiple murder. These exchanges culminated with the
following:
“Mr. Gornik [codefendant Hubbard’s counsel]: . . . It may come down to
you believing beyond a reasonable doubt that a particular defendant is guilty of
five separate murders and special circumstances and gun use, all right? [¶] What I
want to know is if you conclude that beyond a reasonable doubt to where you’ve
convicted that person, is there any other penalty that you could give that person
but death?
“Prospective Juror S.H.: Life without parole.
“Mr. Gornik: Okay. [¶] So you are saying that you would be open to
hearing evidence that would be set forth in the penalty phase?
“Prospective Juror S.H.: Yes.
84
“Mr. Gornik: Do you honestly believe that there may be some
circumstances or evidence that we could bring out during the penalty phase that
might cause you to vote for something other than death?
“Prospective Juror S.H.: It could be.” (Italics added.)
The trial court denied defendant’s challenge for cause, and defendant
exercised a peremptory challenge against S.H.
Substantial evidence supports the trial court’s conclusion that Prospective
Juror S.H. did not hold views regarding capital punishment that would prevent or
substantially impair the performance of his duties as a juror in this case. (People
v. Williams, supra, 16 Cal.4th at p. 668.) In response to questioning by the
prosecutor, the court, and defense counsel, S.H. said that he would “weigh out the
evidence, in addition to the murders” before deciding on the penalty; that he would
listen to the penalty phase evidence from both sides; that after hearing the penalty
phase evidence he might change his mind about the death penalty, even if he
concluded the defendant had killed three or four people; that he would not always
vote for the death penalty; and that there could be evidence that might convince
him to vote for life without possibility of parole. Although he also gave responses
that conflicted with those views, the trial court was entitled to resolve the conflicts
in favor of the prosecution based on its observations of S.H.’s demeanor
(Wainwright v. Witt, supra, 469 U.S. at p. 434), and its determination is binding on
us (People v. Jenkins, supra, 22 Cal.4th at p. 987).
Defendant asserts that People v. Boyette (2002) 29 Cal.4th 381 compels the
conclusion that the trial court erred by declining to excuse Prospective Juror S.H.
for cause. There, we held the trial court should have sustained the defendant’s
challenge for cause to a prospective juror who expressed strong pro-death-penalty
views similar to S.H.’s in this case. Unlike S.H., however, the prospective juror in
Boyette admitted on voir dire that he would not follow the trial court’s instruction
85
to assume that life imprisonment without parole would mean the prisoner would
never be released. (Id. at p. 418.) Here, S.H. said that he would follow the trial
court’s instructions and the law even if they conflicted with his beliefs or opinions.
Boyette therefore does not support defendant’s argument here.19
4. Denial of 20 individual peremptory challenges
During voir dire, defendant exercised 20 peremptory challenges jointly with
his three codefendants and five additional peremptory challenges individually.
The trial court denied his request for 20 individual peremptory challenges.
Defendant now contends that Code of Civil Procedure section 231, subdivision
(a), entitled him to 20 individual peremptory challenges, that the trial court
therefore erred in denying his request for 20 individual peremptory challenges, and
that this error denied him a state statutory entitlement in violation of his
19
Defendant also asserts that the trial court’s refusal to excuse Prospective
Juror S.H. for cause violated his rights under article I, section 16 of the California
Constitution and section 225 of the Code of Civil Procedure. The Attorney
General counters that these claims are forfeited because defendant failed to raise
them at trial. Defendant’s state constitutional claim is based on the same facts
underlying the federal claim and requires a legal analysis similar to that required
by the federal claim. (See People v. Williams, supra, 16 Cal.4th at pp. 666-667;
People v. Johnson, supra, 3 Cal.4th at p. 1210.) Therefore, that claim is not
forfeited. (People v. Yeoman, supra, 31 Cal.4th at p. 117.) Nonetheless, we reject
it for the same reasons we reject the federal claim.
Section 225 of the Code of Civil Procedure permits the exclusion for cause
of a prospective juror who exhibits a state of mind “which will prevent the juror
from acting with entire impartiality, and without prejudice to the substantial rights
of any party.” (Id., subd. (b)(1)(C).) We have said in relation to a predecessor to
this statute that it permits the defendant in a capital case “to challenge for cause
jurors who have a bias in favor of the death penalty even though they state that
they are able to render an impartial verdict of guilt.” (People v. Gilbert (1965) 63
Cal.2d 690, 712, reversed on another ground sub nom. Gilbert v. California (1967)
388 U.S. 263.) To the extent section 225 would require exclusion of a prospective
juror for cause on any broader basis than the federal Constitution permits,
defendant here forfeited the claim by failing to raise it below.
86
Fourteenth Amendment right to due process of law under Hicks v. Oklahoma
(1980) 447 U.S. 343.
Code of Civil Procedure section 231, subdivision (a), provides, as it did at
the time of defendant’s trial: “In criminal cases, if the offense charged is
punishable with death, or with imprisonment in the state prison for life, the
defendant is entitled to 20 and the people to 20 peremptory challenges. Except as
provided in subdivision (b), in a trial for any other offense, the defendant is
entitled to 10 and the state to 10 peremptory challenges. When two or more
defendants are jointly tried, their challenges shall be exercised jointly, but each
defendant shall also be entitled to five additional challenges which may be
exercised separately, and the people shall also be entitled to additional challenges
equal to the number of all the additional separate challenges allowed the
defendants.”
Defendant asserts that the third sentence, which states what occurs when
“two or more defendants are jointly tried,” does not refer back to the first sentence
governing capital cases, but only to the sentence immediately preceding it,
governing noncapital cases. Thus, under defendant’s interpretation, defendants in
multidefendant noncapital cases must jointly exercise their peremptory challenges,
while defendants in multidefendant capital cases are each entitled to a full
complement of 20 individual challenges.
“As in any case involving statutory interpretation, our fundamental task
here is to determine the Legislature’s intent so as to effectuate the law’s purpose.
[Citation.] We begin by examining the statute’s words, giving them a plain and
commonsense meaning. [Citation.]” (People v. Murphy (2001) 25 Cal.4th 136,
142.)
Here, the first sentence of Code of Civil Procedure section 231, subdivision
(a), provides the defendant and the state in a capital case with 20 peremptory
87
challenges each, the second sentence provides the defendant and the state in a
noncapital case with 10 peremptory challenges each (with certain exceptions), and
the third sentence provides that when defendants are jointly tried, they are to
exercise their challenges jointly, with each defendant receiving five additional
challenges to exercise individually. The same word, “defendant,” is used in all
three sentences. The plain and commonsense meaning of this provision is that the
third, qualifying sentence applies whether or not the defendant’s case is a capital
case. Nothing in the third sentence itself signifies that it is limited to defendants in
noncapital cases.
The history of the statute supports this interpretation. The number of
peremptory challenges in criminal cases formerly was codified in sections 1070
and 1070.5. In a long line of cases, we held that those provisions required the
joint exercise of peremptory challenges in multidefendant capital cases. (See, e.g.,
People v. Webster (1991) 54 Cal.3d 411, 439; People v. Ainsworth (1988) 45
Cal.3d 984, 1004; People v. Miranda (1987) 44 Cal.3d 57, 79-80.)
In 1988, the Legislature consolidated sections 1070 and 1070.5 in Code of
Civil Procedure section 231, subdivision (a). As originally enacted, that provision
read: “In criminal cases, if the offense charged is punishable with death, or with
imprisonment in the state prison for life, the defendant is entitled to 20 and the
people to 20 peremptory challenges. Except as provided in subdivision (b), in a
trial for any other offense, the defendant is entitled to 10 and the state to 10
peremptory challenges; except when two or more defendants are jointly tried,
their challenges shall be exercised jointly, but each defendant shall also be entitled
to five additional challenges which may be exercised separately, and the people
shall also be entitled to additional challenges equal to the number of all the
additional separate challenges allowed the defendants.” (Stats. 1988, ch. 1245,
88
§ 2, p. 4152, italics added.) In the following year, 1989, the Legislature revised
Code of Civil Procedure section 231 to read as it currently does.
Although the significance of this sequence of events is not entirely free
from doubt, it is reasonable to infer that the 1989 change was meant to clarify the
ambiguity in the 1988 version that resulted from the semicolon separating the two
clauses of the second sentence. Because of the semicolon, the 1988 version could
have been read as eliminating the joint exercise of peremptory challenges in
capital cases while retaining the joint exercise for noncapital cases. By separating
the clauses of the second sentence into two separate sentences, the 1989 version
clarified that the third sentence was equally applicable to both the first and second
sentences, thus retaining the law as it existed before 1988, requiring the joint
exercise of peremptory challenges in both capital and noncapital cases.
Notwithstanding the plain meaning of the statute and the implications of the
legislative history, defendant argues that the “last antecedent rule” of statutory
construction supports his interpretation. Under that rule, “ ‘qualifying words,
phrases and clauses are to be applied to the words or phrases immediately
preceding and are not to be construed as extending to or including others more
remote.’ ” (White v. County of Sacramento (1982) 31 Cal.3d 676, 680; see also
Renee J. v. Superior Court (2001) 26 Cal.4th 735, 743-744.) The cases using this
rule, however, involve the application of modifying words or phrases within a
single sentence of a statute. (E.g., Renee J. v. Superior Court, supra, at p. 739;
White v. County of Sacramento, supra, at p. 680; People v. Corey (1978) 21 Cal.3d
738, 742; Board of Port Commrs. v. Williams (1937) 9 Cal.2d 381, 389, and cases
cited.) Defendant cites no case in which the rule was used to determine whether
an entire sentence modified preceding sentences. Moreover, “[e]vidence that a
qualifying phrase is supposed to apply to all antecedents instead of only to the
immediately preceding one may be found in the fact that it is separated from the
89
antecedents by a comma.” (White v. County of Sacramento, supra, at p. 680.) If a
comma is enough to make the last antecedent rule inapplicable, then surely a
period, which signifies a complete sentence break, is enough also.
In sum, Code of Civil Procedure section 231, subdivision (a), does not
entitle each defendant in a multidefendant capital case to 20 individual peremptory
challenges. Defendant’s due process claim thus fails.
5. Failure to conduct individual sequestered voir dire
Defendant asserts that the trial court abused its discretion when it denied his
request for individual sequestered voir dire of prospective jurors. As we explained
in People v. Jurado (2006) 38 Cal.4th 72, 100: “In Hovey v. Superior Court
(1980) 28 Cal.3d 1, 80, this court decided that in capital prosecutions the death-
qualification portion of each prospective juror’s voir dire should be sequestered,
meaning that it should be conducted out of the presence of other prospective
jurors. This court did not hold that sequestered voir dire was constitutionally
required; instead, we mandated this practice as a rule of procedure. (See People v.
Vieira (2005) 35 Cal.4th 264, 287-288; People v. Cudjo (1993) 6 Cal.4th 585,
628.) In 1990, however, the voters abrogated this aspect of Hovey by enacting
Proposition 115, which added section 223 to the Code of Civil Procedure. That
statute provides, in part, that ‘where practicable’ the trial court must conduct voir
dire ‘in the presence of the other jurors in all criminal cases, including death
penalty cases.’ (Code Civ. Proc., § 223.)”
Here, counsel for codefendant Huber moved for individual sequestered voir
dire for death qualification of the prospective jurors. The trial court responded:
“That at one time was required. They’ve changed that. . . . [¶] I think that has a
tendency to kind of slow things up. There are advantages and disadvantages. I
think the disadvantages outweigh the advantages [sic] of the new system with
90
everybody here. I seriously doubt that any individual is persuaded by anything
that anybody else says. [¶] In any event, if they are, hopefully they will tell us
and we can either keep them or not keep them, depending upon your pleasure.”
The trial court then conducted nonsequestered voir dire. After using all of his
allotted peremptory challenges, defendant moved for a mistrial or, in the
alternative, for 10 additional peremptory challenges, arguing that the lack of
sequestered voir dire had allowed prospective jurors to “hear[] the other — the
responses of other jurors and then tailor[] their response to what they felt [] was
appropriate, rather than what they had placed on the questionnaire.” Counsel
argued that he had to use his peremptories to “weed the death-prones out” because
they, unlike the life-prone prospective jurors, did not admit openly that they were
death prone.
Defendant first contends that any restriction on individual sequestered voir
dire on death qualifying issues, including that imposed by Code of Civil Procedure
section 223, would violate his rights to an impartial jury, to a reliable death
sentence, and to the effective assistance of counsel under the Sixth, Eighth, and
Fourteenth Amendments to the United States Constitution. We repeatedly have
rejected these and similar contentions. (People v. Jurado, supra, 38 Cal.4th at
p. 101; People v. Stitely (2005) 35 Cal.4th 514, 536-537; People v. Vieira, supra,
35 Cal.4th at pp. 287-288; People v. Box, supra, 23 Cal.4th at pp. 1180-1181.)
Defendant next asserts that even assuming individual sequestered voir dire
is not constitutionally compelled in every case, the trial court still violated his
federal constitutional rights to due process, an impartial jury, and equal protection
because the court did not exercise its discretion to determine whether group voir
dire was practicable and, to the extent it did, it did not do so on a sound basis.
We review the trial court’s denial of defendant’s motion for individual
sequestered voir dire under the abuse of discretion standard. (People v. Navarette
91
(2003) 30 Cal.4th 458, 490; People v. Waidla (2000) 22 Cal.4th 690, 713-714.) A
trial court abuses its discretion only when its ruling falls outside the bounds of
reason. (People v. Waidla, supra, at p. 714.) Here, the trial court understood it
had discretion to conduct individual voir dire. It declined to do so because it felt
that group voir dire had advantages over individual voir dire, and because it
thought the prospective jurors would be forthright regardless of their exposure to
the views of others. This decision was not outside the bounds of reason. (See
People v. Jurado, supra, 38 Cal.4th at p. 102.)
Defendant suggests that group voir dire was not “practicable” within the
meaning of Code of Civil Procedure section 223. “Our cases have suggested that
group voir dire may be determined to be impracticable when, in a given case, it is
shown to result in actual, rather than merely potential, bias.” (People v. Vieira,
supra, 35 Cal.4th at p. 288.) Defendant argues that prospective jurors were
influenced by the responses of others and, in support, identifies 16 prospective
jurors who changed their answers after being “educated” during the voir dire
process. But “[t]he possibility that prospective jurors may have been answering
questions in a manner they believed the trial court wanted to hear identifies at
most potential, rather than actual, bias and is not a basis for reversing a judgment.”
(People v. Vieira, supra, at p. 289.)
Moreover, that defendant had to use peremptory challenges to remove 15 of
those prospective jurors does not establish that his jury was not impartial. The
erroneous deprivation of peremptory challenges does not violate the right to an
impartial jury unless the defendant shows either that a biased juror actually sat on
the jury that imposed the death sentence, or that the defendant was deprived of a
peremptory challenge that would have been used to excuse a juror who in the end
participated in deciding the case. (Ross v. Oklahoma (1988) 487 U.S. 81, 85-86;
92
People v. Williams, supra, 16 Cal.4th at p. 667; People v. Crittenden (1994) 9
Cal.4th 83, 121.) Defendant makes neither showing.
Finally, defendant asserts that the group voir dire procedure denied him the
opportunity to identify prospective jurors whose views on the death penalty
rendered them unqualified to serve, thus making it impossible for this court to
determine whether any of the jurors who sat on his case held disqualifying views.
Defendant, however, does not “describe any specific example of how questioning
prospective jurors in the presence of other jurors prevented him from uncovering
juror bias.” (People v. Navarette, supra, 30 Cal.4th at p. 490.) No abuse of
discretion, constitutional error, or prejudice appears.
6. Denial of additional peremptory challenges
Defendant asserts that the trial court’s denial of his request for 10 additional
peremptory challenges violated his rights to due process, a fair trial and an
impartial jury. We disagree. To establish an entitlement under the federal
Constitution to additional peremptories, a defendant “must show at the very least
that in the absence of such additional challenges he is reasonably likely to receive
an unfair trial before a partial jury.” (People v. Bonin, supra, 46 Cal.3d at p. 679.)
The same standard applies to any assumed right under state law to additional
peremptory challenges. (People v. Pride (1992) 3 Cal.4th 195, 230-231.) Here, in
support of his assertion that the jury in his case likely was partial, defendant points
to his claims that the trial court improperly declined to grant a change of venue, to
exclude for cause Prospective Juror S.H., or to conduct individual sequestered voir
dire. Because we have concluded those claims lack merit, this claim necessarily
fails as well.
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E. Other Guilt Phase Issues
1.
Admission of evidence
Defendant asserts that the trial court’s rulings on the admission of evidence
were erroneous in several respects. We examine each alleged error in turn.
a. Drawings
During a pretrial hearing under Evidence Code section 402, and at several
points during the trial, defendant objected to the admission into evidence of
exhibits 128, 129, and 139, consisting of three drawings on cardboard that were
found in apartment E after defendant’s arrest. The drawings depicted a cartoon
caricature of a cat along with money bags, a sawed-off shotgun, the name Bopete,
the initials WSF, the number 211, and other items. Codefendant Machuca’s
counsel explained to the court that the initials WSF referred to a specific Los
Angeles gang. Defendant argued that the evidence was irrelevant and that its
prejudicial effect outweighed any probative value because “the only thing it serves
is to demonstrate to the jury that my client might at one time or another [have]
been associated with some gang.” Defendant also argued there was no evidence
that he possessed the drawings or that he was a lessee of the apartment where the
drawings were found. In response, the prosecutor argued that the drawings were
relevant to show that defendant, whose nickname was Bopete, was committing
robberies with a sawed-off shotgun. The prosecutor also argued that the drawings
were admissible as an admission by defendant because they were found in the
apartment where he was living and because defendant’s name on the drawings was
“an indication of ownership.” The court overruled the defense objections and
admitted the drawings into evidence, but it barred the prosecutor from eliciting
any testimony that the initials WSF referred to a gang.
Detective Richard Graves testified that he was experienced in the
“interpretation of graffiti or placards.” He then testified that exhibit 128 was a
94
drawing of a cat caricature along with a money bag, dollar signs, the alias Bopete,
a sawed-off or shortened shotgun, a keyhole with cell bars in it, and the words
“hard times.” The letters WSF and the number 211 were written on various parts
of the cat’s body. Over defendant’s objection, Detective Graves testified that the
drawing signified that a person named Bopete was “identifying with the 211,” the
Penal Code section for robbery, and that the shotgun indicated a weapon
preference.
Detective Graves testified that exhibit 139 depicted a “wanted” poster
containing the words “menace to society,” a caricature of a cat wearing a hat and
gun, a money bag, and the name Bopete. Elsewhere on the page were the phrases
“smile now” and “cry later,” the initials WSF, a wall with bars, a “mask which is
associated with trauma,” and a ball and chain. Over defendant’s objection,
Detective Graves testified that the drawing meant that the person Bopete identified
with the caricature on the “wanted” poster and was “kind of making a statement
concerning everything you see here,” including “that he is a menace to society.”
Detective Graves then testified that defendant had the word Bopete and the initials
WSF tattooed on his arms.20
Defendant contends that the trial court erred by admitting the three
drawings into evidence along with Detective Graves’s testimony interpreting those
drawings. Defendant asserts that the evidence was irrelevant, was more
prejudicial than probative under Evidence Code section 352, and was inadmissible
20
Exhibit 129 was introduced during the cross-examination of Detective
Gentzvein. It depicts a cartoon caricature of a cat. The words “To Bopete” and
“From Shorty” appear, as well as the phrase “I love you homie.” Detective
Gentzvein testified that codefendant Machuca’s nickname was Pee-wee and that
he had never known her to use the nickname Shorty.
95
hearsay. We need not address his first two arguments, for we find that the third
has merit.21
The relevant principles are well established. “Hearsay is ‘evidence of a
statement that was made other than by a witness while testifying at the hearing and
that is offered to prove the truth of the matter stated.’ (Evid. Code, § 1200, subd.
(a).) Hearsay is not admissible unless it qualifies under some exception to the
hearsay rule. Two hearsay exceptions are relevant here. A defendant’s own
hearsay statements are admissible. (See id., § 1220; People v. Horning (2004) 34
Cal.4th 871, 898, fn. 5; People v. Carpenter (1999) 21 Cal.4th 1016, 1049.) A
statement by someone other than the defendant is admissible as an adoptive
admission if the defendant ‘with knowledge of the content thereof, has by words
or other conduct manifested his adoption [of] or his belief in its truth.’ (Evid.
Code, § 1221; see People v. Preston (1973) 9 Cal.3d 308, 314 & fn. 3.)” (People
v. Davis, supra, 36 Cal.4th at p. 535.) For purposes of the hearsay rule, a
“statement” is defined as “oral or written verbal expression” or “nonverbal
conduct . . . intended . . . as a substitute for oral or written verbal expression.”
(Evid. Code, § 225.)
21
As a preliminary matter, we conclude the hearsay issue was preserved for
review. Although the word “hearsay” was not mentioned during the hearings on
this evidence, the prosecutor alerted the trial court to the hearsay nature of the
evidence when he argued that the drawings were admissible as defendant’s
“admissions.” Further, defense counsel raised the relevant considerations
regarding admissibility. Codefendant Machuca’s counsel argued the drawings
were inadmissible because there was no foundational showing as to who made
them or whether defendants were aware of their existence. And defendant’s
counsel argued there was no showing that defendant possessed the drawings or
was a lessee of the apartment in which they were found. The court’s ruling that
the drawings were admissible in part because they had been in the apartment
during a time when defendant was living there indicates it was aware of the
hearsay issue. Thus, we may reach the merits.
96
Here, the drawings were hearsay because the jury was asked to conclude
that they were intended as a substitute for verbal expression and conveyed the
truth of the assertion that defendant committed robberies with a sawed-off
shotgun. Accordingly, the drawings were inadmissible unless they fell within an
exception to the hearsay rule. The prosecutor argued that the drawings were an
“admission” by defendant. As we have explained, evidence of a defendant’s own
hearsay statement is admissible. (See People v. Davis, supra, 36 Cal.4th at
p. 535.) Here, however, there was no evidence that defendant made the drawings.
Indeed, the prosecutor’s theory was that codefendant Machuca had drawn them.
Social worker Linda Witt testified that Machuca was a “pretty good artist,” and
during closing, the prosecutor argued, “it appears that Robbin Machuca is the
author of those placards, because she, too, knew what was going on and she, too,
was participating in those offenses.” On behalf of codefendant Machuca, Irving
Bonilla testified that he made the drawings. The drawings thus were not
admissible as a statement of defendant. (People v. Champion (1995) 9 Cal.4th
879, 924, fn. 14, disapproved on another point in People v. Ray (1996) 13 Cal.4th
313, 369, fn. 2 (conc. opn. of George, C.J., joined by a majority of the court).)
Nor were the drawings admissible as adoptive admissions. To prove
adoption of a hearsay statement sufficient to make it admissible under Evidence
Code section 1221, it must be shown that the party against whom a declarant’s
hearsay statement is offered both “ ‘(1) had knowledge of the contents of
declarant’s statement, and (2) having such knowledge, has, by words or other
conduct, manifested his adoption or his belief in its truth.’ (1 Jefferson, Cal.
Evidence Benchbook (2d ed. 1982) § 1.1, pp. 19-20, italics in original.)” (People
v. Maki (1985) 39 Cal.3d 707, 712; see also People v. Davis, supra, 36 Cal.4th at
p. 535.)
97
The prosecution’s sole evidence supporting admissibility was evidence that
defendant spent time in apartment E during the summer of 1991, and that an
employee of the Woodside Village Apartments found the drawings during a
routine cleaning of apartment E in October 1991, after defendant’s arrest. As
noted, Irving Bonilla testified on codefendant Machuca’s behalf that he made the
drawings and gave them to defendant.
We need not decide if this evidence was sufficient to support a finding that
defendant had knowledge of the content of the drawings, for even were we to so
conclude, we are compelled to find there was no evidence that defendant, by
words or conduct, manifested or adopted a belief in their truth. That is because
there was no evidence that defendant agreed with the message Detective Graves
said the drawings were meant to convey. Moreover, defendant’s mere possession
of the drawings bearing his nickname, Bopete, was not sufficient to support
admissibility under Evidence Code section 1221. (People v. Maki, supra, 39
Cal.3d at pp. 711-714.) Without such evidence of words or conduct, there was no
way for the jury to determine whether the drawings simply represented the artist’s
fantasy, or whether they were an assertion of fact. As such, the drawings were
hearsay and were inadmissible against defendant.
Nonetheless, the erroneous admission of the drawings did not prejudice
defendant. The drawings added next to nothing to the evidence of defendant’s
guilt of the crimes committed without a shotgun, and very little to the evidence
supporting defendant’s guilt of the crimes committed with a shotgun — that is, the
Avina, Ramirez, and Valdez crimes. Defendant admitted killing Avina with a
shotgun and taking his truck. Linda Ramirez identified defendant as her
husband’s killer and testified that he used a shotgun. And Valdez identified
defendant and testified he used a shotgun.
98
Defendant argues that the evidence was particularly prejudicial because it
associated him with gangs. As we have explained, trial courts must exercise
caution in admitting evidence that a defendant is a member of a gang because such
evidence may be highly inflammatory and may cause the jury to “jump to the
conclusion” that the defendant deserves the death penalty. (People v. Gurule
(2002) 28 Cal.4th 557, 653-654; People v. Williams, supra, 16 Cal.4th at p. 193;
see also Dawson v. Delaware (1992) 503 U.S. 159.) Here, however, we agree
with the trial court that the jurors would not necessarily have known that the
drawings indicated defendant was a gang member. The initials WSF did not
necessarily signify a gang. The prosecutor scrupulously avoided the subject of
gangs in his examination of Detective Graves. Although Detective Graves
testified as “an expert in the interpretation of graffiti or placards,” he described
only what the drawings signified to him. There was no inevitable association with
gangs.
Moreover, even assuming the jury concluded that the drawings indicated
defendant was a gang member, such an association did not prejudice defendant at
the guilt phase. The evidence that defendant committed each of the charged
crimes was strong. Defendant was linked to the Ramirez, Valdez, Rios, and
Aguirre crimes through the eyewitness testimony of the victims or others, and
defendant confessed to the Avina, Sams, Nisbet, and Denogean murders. In
addition, ballistics, fingerprints, and other physical evidence linked defendant to
the Avina, Sams, Nisbet, and Denogean murders and to the robberies and
kidnappings of Valdez, Rios, and Aguirre. Under the circumstances, “[a]ny
bearing the [drawings] had on [defendant’s] guilt of the crimes of which the jury
eventually convicted him . . . was tangential, and not likely to affect the outcome
of the case.” (People v. Champion, supra, 9 Cal.4th at p. 924.)
99
Defendant asserts that the alleged gang evidence prejudiced him at the
penalty phase, pointing out that his codefendants, as to whom no gang evidence
was admitted, received sentences of life imprisonment without possibility of
parole. But the jury reasonably could have found that defendant was relatively
more culpable than his codefendants because, unlike them, he was guilty of all of
the charged crimes, appeared to be the instigator, and personally shot each of the
murder victims. The jury also reasonably could have concluded that defendant’s
case in mitigation was relatively weak compared to those of his codefendants.22
For all of these reasons, we find no reasonable probability (People v.
Watson (1956) 46 Cal.2d 818, 836) that the guilt phase outcome would have been
more favorable to defendant absent the error. We likewise find no reasonable
likelihood (People v. Brown (1988) 46 Cal.3d 432, 447-448) that the error affected
the penalty phase verdict.23
22
Codefendant Hubbard presented evidence that he received monthly
Supplemental Security Income payments due to a mental disability; that he
suffered from schizophrenia, depression, paranoia, hallucinations, and substance
abuse; that he had been diagnosed with organic brain syndrome; and that he had
borderline to dull normal intelligence. Codefendant Machuca presented evidence
that her mother physically abused her; that her stepfather Donald Deary began
raping her regularly when she was eight years old; that by age 12 she was pregnant
by Deary; that she dropped out of school, abused and sold drugs, and twice
attempted suicide; that she was psychologically damaged; and that she had
expressed genuine remorse. Codefendant Huber presented evidence that she was
devastated at age 11 when her mother abandoned the family; that she suffered
from borderline personality disorder and alcohol and drug dependency; and that
she had expressed genuine remorse.
23
Defendant asserts the erroneous admission of the drawings violated his
rights under the Sixth Amendment to the United States Constitution to confront
the witnesses against him and to a fair trial. Assuming these claims are preserved
for review (see People v. Partida, supra, 37 Cal.4th at pp. 433-439; People v.
Yeoman, supra, 31 Cal.4th at p. 117), and assuming the confrontation clause
would even apply to this nontestimonial evidence (see Crawford v. Washington
(footnote continued on next page)
100
b. Prior
incarceration
Los Angeles County Deputy Sheriff Steven McLean testified about the
service of the search warrant on apartment E in the early morning hours of August
30, 1991. He testified that five officers made a “dynamic entry” through the front
door while three other officers breached a window in the front bedroom. He went
on to explain: “The way it works is sometimes it takes a few seconds for the five
guys to get in through the front door and so what we did is we had specific
information that there were suspects in that particular bedroom, that they were
probably armed with semiautomatic or fully automatic weapons. [¶] We had
information that they were ex-cons and there was a possibility that they would try
to shoot it out with the cops.” (Italics added.)
Defendant moved for a mistrial based on the deputy’s testimony that he had
information there were “ex-cons” in the apartment. The trial court denied the
motion, but read to the jurors a cautionary instruction drafted by codefendant
Machuca’s counsel:
“The Court: . . . All right. Ladies and gentlemen of the jury, I’m going to
give you what we call a cautionary instruction. And so that you don’t get thrown
off track it reads as follows: ‘Officer McLean indicated that he believed there
were ex-cons in the apartment. You have been given no evidence that any of the
defendants are ex-cons and are not to take the assumptions of Deputy McLean as a
statement of truth as to any of the defendants’ prior records.’ ”
(footnote continued from previous page)
(2004) 541 U.S. 36, 51-53, 59), we conclude, for the reasons stated above, that any
federal constitutional error was harmless beyond a reasonable doubt. (Chapman v.
California, supra, 386 U.S. at p. 24.)
101
Defendant contends that the trial court erred in denying his mistrial motion.
We disagree. We review a ruling on a mistrial motion for an abuse of discretion.
(People v. Davis, supra, 36 Cal.4th at p. 553; People v. Ayala, supra, 23 Cal.4th at
p. 283.) A trial court should declare a mistrial only “ ‘if the court is apprised of
prejudice that it judges incurable by admonition or instruction.’ ” (People v.
Jenkins, supra, 22 Cal.4th at pp. 985-986, quoting People v. Haskett (1982) 30
Cal.3d 841, 854.) “In making this assessment of incurable prejudice, a trial court
has considerable discretion.” (People v. Davis, supra, at p. 554.)
Deputy McLean’s testimony did not result in prejudice that was incurable
by admonition. His testimony that he had information there were “ex-cons” in
apartment E was given in the context of explaining the extraordinary methods the
police used to execute the search warrant at the apartment. The testimony was not
elicited by the prosecutor, was not followed by any additional testimony regarding
defendant’s prior record, and did not identify which of the apartment’s occupants
were believed to be “ex-cons.” For these reasons, Deputy McLean’s testimony
likely was inconsequential in the minds of the jurors when compared to the strong
evidence supporting defendant’s guilt of the multiple murders and other crimes
with which he was charged in this case. Moreover, even assuming the testimony
should not have been before the jury (see Evid. Code, § 1101, subd. (b) [evidence
of prior crimes admissible only if relevant to a material fact]), the trial court acted
in a timely manner to cure any error by admonishing the jury that Deputy
McLean’s testimony about his “belief” that “ex-cons” were in the apartment did
not establish any fact regarding the defendants’ prior records. Under these
circumstances, “the court could reasonably conclude that any potential for
prejudice was so minimal that it was cured by the admonition and a mistrial should
not be granted.” (People v. Hayes (1999) 21 Cal.4th 1211, 1264.)
102
c. Amplifiers
Two amplifiers were introduced into evidence at trial. Murder victim Jose
Avina’s brother, Antonio Avina, testified that exhibit No. 19 was one of two
matching amplifiers that had been installed in Jose Avina’s truck, that Jose Avina
had removed it because it was broken, and that he (Antonio) had given it to a
district attorney’s investigator after Jose Avina’s death. Antonio Avina testified
that exhibit No. 16, an amplifier that police had found in the trunk of defendant’s
car, looked like the amplifier that had remained in Jose Avina’s truck. Defendant
objected to the evidence on relevance grounds. The trial court overruled the
objection.
Applying the abuse of discretion standard of review (see People v. Waidla,
supra, 22 Cal.4th at p. 723), we find no abuse of discretion here. Relevant
evidence is evidence “having any tendency in reason to prove or disprove any
disputed fact that is of consequence to the determination of the action.” (Evid.
Code, § 210.) When Avina’s truck was recovered after his murder, there was a
hole where the stereo system should have been. Accordingly, it was reasonable to
infer that Avina’s killer or someone involved in the killing had taken the stereo.
That the amplifier found in the trunk of defendant’s car matched the broken one
that Avina had removed from his truck tended to establish defendant’s identity as
Avina’s killer.
Defendant argues that exhibit No. 16, the amplifier found in his car, should
not have been admitted because Antonio Avina testified only that it “looked like”
the amplifier that had been in Jose Avina’s truck; because “[m]illions of other
amplifiers could also have looked like the amplifier[] in question, since it was a
commercially mass-produced amplifier”; and because the prosecution “failed to
conduct a comparison of . . . similarities such as brand name, wattage, serial
numbers or other characteristics that would have actually linked” the two
103
amplifiers. These factors, however, affected only the weight of the evidence, not
its admissibility. (See People v. Jones (2003) 29 Cal.4th 1229, 1266; People v.
Martinez (2000) 22 Cal.4th 106, 132.) Defendant’s counsel was free to, and did,
argue that the amplifiers had little, if any, probative value. Moreover, the jurors
had access to the trial exhibits and were free to compare the amplifiers on their
own. No abuse of discretion by the trial court appears.
d. Shotgun
shell
West Covina Police Detective Michael Ferrari testified that, during the
search of apartment E on August 30, 1991, in a patch of ivy a few feet outside the
front door of the apartment, he found an unexploded “triple aught buck” shotgun
shell with what appeared to be hammer strike marks on the primer of the shell,
indicating a failed attempt to fire the shell from a shotgun. The prosecution’s
ballistics expert, Edward Robinson, did not testify about the shotgun shell.
Defendant objected to the admission into evidence of this shell, arguing that
any inference to be drawn from it was speculative, in part because the
prosecution’s ballistics expert had not testified that the shell had misfired. The
trial court overruled the objection, concluding that the evidence raised at least two
permissible inferences: that the shell was the one that had misfired when kidnap
victim Eugene Valdez jumped, or that it was an additional shell that had misfired
near the apartment.
Defendant now contends that the shell was inadmissible because the
prosecution failed to present a qualified expert to testify that the shell exhibited
strike marks resulting from a misfire. Detective Ferrari was not offered as a
ballistics expert and did not testify regarding his qualifications in ballistics.
Without testimony properly establishing that the shell exhibited strike marks,
104
defendant’s argument implies, the shell was inadmissible because it was irrelevant
to any issue in the case.
Defendant did not preserve this claim for appeal. During Detective
Ferrari’s testimony, defendant did not object to his qualifications to testify about
whether the shell exhibited strike marks. Accordingly, the prosecution did not
have the opportunity to establish that Detective Ferrari was so qualified. (See
People v. Gutierrez (2002) 28 Cal.4th 1083, 1139-1140.) Although defendant
later objected to the admission of the shell into evidence on the ground that it was
irrelevant — in part because there was no expert testimony as to the strike marks
— that objection came too late, after Detective Ferrari had left the witness stand.
Because defendant did not interpose a proper and timely objection on the same
ground he now raises on appeal, he has forfeited the claim. (People v. Waidla,
supra, 22 Cal.4th at p. 717.)
Even had defendant preserved the claim, however, it would lack merit.
Detective Ferrari properly testified as a lay witness about the significance of the
marks on the shotgun shell. (See People v. Gutierrez, supra, 28 Cal.4th at
p. 1140.) His opinion was rationally based on his perception and helpful to an
understanding of his testimony (see Evid. Code, § 800), and the subject of his
opinion — the significance of marks on the shell primer — was not so far “beyond
the common experience” that expert testimony was required (id., § 801).
Finally, even without any testimony about the strike marks, the shell would
have been admissible because its presence in a patch of ivy a few feet from the
front door of the apartment where defendant was living was relevant to show the
presence of a shotgun in or around that apartment. Accordingly, the trial court did
not abuse its discretion by admitting the shell into evidence.
105
e. License
plate
Both defendant and kidnapping victim Eugene Valdez owned brown 1983
Oldsmobile Cutlasses. Valdez was driving his Cutlass, bearing license plate
No. 1HBH117, when he was kidnapped. A few days after the kidnapping, when
police located that car in Baldwin Park, several parts — including the hood, grille,
front bumper, and left rear taillight assembly — had been removed. After
defendant’s arrest, when police recovered defendant’s Cutlass from an auto body
shop, several parts on the car — including the hood, front grille, and the left rear
taillight assembly — appeared to have come from a different vehicle. Although
there was no license plate in the front housing bracket on defendant’s car, the
outlines of several alphanumeric characters were discernable in the dust and debris
on the license plate backing.
A Los Angeles County Sheriff’s Department forensic scientist who
analyzed the dust impressions on the front license plate backing on defendant’s car
testified that the first character was either “1” or “T” or “I,” the next three were
“HBH,” and the next two were either “1” or “I.” The last character was not
legible. An auditor from the district attorney’s office concluded that there were
432 possible seven-character combinations of those letters and numbers, and
documents explaining the basis for that conclusion were offered as exhibits. A
data processing manager for the Department of Motor Vehicles testified that a
standard California license plate would contain seven characters, of which the
second, third, and fourth would be letters and the rest would be numbers. Thus,
there were ten possible valid configurations of standard license plates beginning
with 1HBH11. Of those possible configurations, only seven were ever issued, and
only one — 1HBH117 — was issued to an Oldsmobile. The last registered owner
of that Oldsmobile was Eugene Valdez.
106
Defendant objected on relevance grounds to the exhibits explaining the
auditor’s conclusion regarding the 432 possible license plate configurations and to
the Department of Motor Vehicles records relating to license plates actually
issued. The trial court overruled the objection.
The trial court did not abuse its discretion. The exhibits and Department of
Motor Vehicles records were relevant to prove that the license plate backing, and
by extension the other nonoriginal parts on defendant’s car, had come from
Valdez’s car, and therefore that defendant had kidnapped Valdez. Valdez’s
testimony that his car bore license plate number 1HBH117 established only that
the dust imprint on the license plate backing — which bore the second, third, and
fourth characters “HBH” and first, fifth, and sixth characters that possibly were
“1” — could have been made by Valdez’s license plate. By showing that standard
license plates would have to begin with 1HBH11, and that no other standard plate
with those numbers had been issued to an Oldsmobile, the Department of Motor
Vehicles records helped eliminate other cars’ license plates as sources of the
imprint found on defendant’s car. Accordingly, the evidence was relevant and
probative of defendant’s guilt.
Defendant asserts that the evidence was inadmissible because the
Department of Motor Vehicles data processing manager did not determine whether
there was a personalized plate that began with 1HBHII. Defendant is wrong. The
manager testified that he ran a computer search to determine whether any of the
“some 400 some [sic] odd combinations” were requested as a personalized plate,
and found none. That search would have included seven-character plates
beginning with 1HBHII. Even assuming the manager did not run a search to
determine whether there was a personalized plate bearing only 1HBHII, that flaw
in his analysis would affect only the weight of the evidence, not its admissibility.
(See People v. Jones, supra, 29 Cal.4th at p. 1266; People v. Martinez, supra, 22
107
Cal.4th at p. 132.) Defendant’s counsel was free to, and did, challenge the
significance of the license plate evidence in closing argument.
f. Federal constitutional error
Defendant asserts that the admission of inadmissible evidence rendered his
trial fundamentally unfair and violated his rights to confront witnesses, to a fair
trial, to due process of law, and to a reliable judgment of death under the Fifth,
Sixth, Eighth, and Fourteenth Amendments to the United States Constitution,
warranting reversal of the guilt and penalty judgments. Assuming these claims are
preserved for review (see People v. Partida, supra, 37 Cal.4th at pp. 433-439;
People v. Yeoman, supra, 31 Cal.4th at p. 117), they lack merit. As we have
explained, admission of the drawings found in apartment E was harmless beyond a
reasonable doubt, and the trial court properly denied defendant’s motion for a
mistrial because there was no incurable prejudice. Thus, the cumulative effect of
any improperly admitted evidence neither rendered defendant’s trial
fundamentally unfair nor resulted in an unreliable judgment of death. (See People
v. Davis, supra, 36 Cal.4th at pp. 572-573; People v. Catlin (2001) 26 Cal.4th 81,
180.)
2. Crawford
Defendant asserts that the admission of codefendant Huber’s statements at
the joint trial violated his Sixth Amendment confrontation rights under Crawford
v. Washington, supra, 541 U.S. 36 (Crawford). There, the United States Supreme
Court held that the confrontation clause prohibits the admission into evidence of
“testimonial” hearsay statements against a defendant in a criminal trial unless:
(1) the declarant is unavailable as a witness and the defendant has had a prior
opportunity to cross-examine him or her, or (2) the declarant appears for cross-
examination at trial. (Id. at p. 59 & fn. 9.) Although the high court declined to
108
delineate the outer limits of “testimonial” hearsay, the court concluded that such
hearsay includes, at a minimum, “[s]tatements taken by police officers in the
course of interrogations.” (Id. at p. 52.)
Here, codefendant Huber’s statements were no doubt testimonial because
they were taken during police interrogations. Nonetheless, their admission at the
joint trial violated defendant’s confrontation rights only to the extent they were
admitted “against” defendant. (See Crawford, supra, 541 U.S. at p. 51 [“the
Confrontation Clause . . . applies to ‘witnesses’ against the accused — in other
words, those who ‘bear testimony’ ”].) As the high court has explained,
“[o]rdinarily, a witness whose testimony is introduced at a joint trial is not
considered to be a witness ‘against’ a defendant if the jury is instructed to consider
that testimony only against a codefendant.” (Richardson, supra, 481 U.S. at
p. 206.) The only exception to this rule is the narrow class of statements falling
within the holdings of Bruton and Gray — that is, statements that powerfully
incriminate the defendant on their face because they directly implicate the
defendant by name or do so in a manner the jury could not reasonably be expected
to ignore. (Gray, supra, 523 U.S. at pp. 194-196; Richardson, supra, 481 U.S. at
pp. 206-211.) Accordingly, redacted codefendant statements that satisfy Bruton’s
requirements are not admitted “against” the defendant for Crawford purposes.
(People v. Stevens, supra, 41 Cal.4th at p. 199.)
Here, as we have explained, the jury was instructed to consider Huber’s
statements against her alone. We have declined to decide whether Huber’s
statements about the Valdez, Sams, Nisbet, and Denogean crimes violated
defendant’s Sixth Amendment confrontation rights under Bruton and Gray,
concluding instead that any assumed error was harmless beyond a reasonable
doubt. For the same reasons, any Crawford error would be harmless beyond a
reasonable doubt as well. We further have concluded that even if the admission of
109
Huber’s statements about the Avina crime violated defendant’s confrontation
rights under Bruton, any assumed error was harmless in relation to defendant’s
convictions for the murder and robbery of Avina or the true finding on the
robbery-murder special circumstances. Further, as explained below, we vacate the
true finding on the Avina lying-in-wait special circumstance on other grounds.
Thus, even assuming the admission of these testimonial statements violated
defendant’s confrontation rights under Crawford, the addition of any Crawford
error does not affect the result.
3.
Sufficiency of the evidence of the Avina crimes
Defendant contends the evidence admissible against him was insufficient to
sustain his convictions for the first degree murder and robbery of Jose Avina and
the special circumstances of lying in wait and robbery murder. Under our state
law, “ ‘[t]o determine the sufficiency of the evidence to support a conviction, an
appellate court reviews the entire record in the light most favorable to the
prosecution to determine whether it contains evidence that is reasonable, credible,
and of solid value, from which a rational trier of fact could find the defendant
guilty beyond a reasonable doubt.’ [Citation.]” (People v. Jurado, supra, 38
Cal.4th at p. 118.) The standard under the due process clause of the Fourteenth
Amendment is functionally identical. “[T]he relevant question is whether, after
viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” (Jackson v. Virginia (1979) 443 U.S. 307, 319.) The same
standard applies to special circumstance allegations. (People v. Ochoa (2001) 26
Cal.4th 398, 453-454.) In reviewing this claim, we bear in mind that Huber’s
statements to the police were not admitted against defendant, and we do not
consider them.
110
For the reasons explained above (pp. 48-50), the evidence admissible
against defendant was sufficient to support the jury’s verdicts finding defendant
guilty of the robbery of Avina and the first degree felony murder of Avina based
on robbery. It also was sufficient to support the jury’s true finding on the robbery-
murder special circumstance. Because there is a basis in the record for
determining that the first degree murder verdict as to victim Avina rested on the
theory of felony murder based on robbery, and because we have concluded that
theory is valid, we may affirm the murder conviction without addressing the
factual sufficiency of the other two murder theories submitted to the jury:
premeditated and deliberate murder and murder by means of lying in wait. (See
People v. Hughes, supra, 27 Cal.4th at p. 368; People v. Marshall, supra, 15
Cal.4th at p. 38; see also People v. Guiton, supra, 4 Cal.4th at pp. 1129-1130.)
There remains the lying-in-wait special circumstance, which requires
“proof of ‘an intentional murder, committed under circumstances which include
(1) a concealment of purpose, (2) a substantial period of watching and waiting for
an opportune time to act, and (3) immediately thereafter, a surprise attack on an
unsuspecting victim from a position of advantage.’ ” (People v. Jurado, supra, 38
Cal.4th at p. 119, quoting People v. Morales (1989) 48 Cal.3d 527, 557.)
Here, there was no admissible evidence of a substantial period of watching
and waiting to support the lying-in-wait special circumstance. Indeed, setting
aside defendant’s statement, which contradicted a lying-in-wait theory, there was
no direct evidence admissible against defendant regarding what happened before
the collision with Avina’s truck.
For the Avina incident, the evidence admissible against defendant consisted
of eyewitness accounts, defendant’s statements, evidence that Avina’s stereo and
other belongings were found in the possession of defendant and his companions,
and physical evidence of the manner of the killing. The eyewitness accounts were
111
not helpful in establishing lying in wait because they recounted only the aftermath
of the shooting. Thus, Denise and Omar Bennett described hearing a gunshot,
seeing a red truck roll through an intersection, and seeing someone pull a body out
of the truck. A police officer and Maria Vega, Avina’s girlfriend, described
coming upon the crime scene and discovering Avina’s body after the perpetrators
had left. Although defendant in his statement admitted demanding Avina’s keys
before shooting Avina and then taking property from the truck after Avina was
killed, his statements supplied no evidence that Avina was followed for that
purpose. Avina’s stereo equipment was found in cars and apartments linked to
defendant and his friends, but there was no admissible evidence that the taking of
the property was any more than an afterthought that arose after the accidental
bumping of Avina’s truck and the confrontation with Avina. Finally, the physical
evidence of the manner of the killing did not supply the missing “watching and
waiting” evidence. Although it suggested that defendant shot Avina while Avina
was sitting up and facing forward, the physical evidence shed no light on what
occurred before the confrontation with and the killing of Avina.
Thus, the admissible evidence showed at most that Lane’s car collided with
Avina’s truck, that defendant decided to take the truck, and that defendant
approached Avina and shot him in order to take the truck. In the alternative, the
evidence showed a collision, an altercation, a decision to kill, and the taking of the
truck. Although the prosecutor argued that defendant and his companions
followed Avina for a substantial period of time before intentionally bumping his
truck, the only evidence supporting that argument — codefendant Huber’s
statement — was inadmissible against defendant.24 Codefendant Huber’s
24
Insofar as it urged the jury to rely on Huber’s statement in considering
defendant’s guilt under the lying-in-wait murder theory and the truth of the lying-
(footnote continued on next page)
112
statement supplied the only evidence of a plan and agreement to find someone
driving a nice car, bump the car so the driver would stop, steal the car and any
valuables therein, and shoot the driver if he or she did not cooperate. It also
supplied the only evidence that Avina was purposefully trailed for any period of
time before Lane’s car collided with his truck.
The Attorney General contends the jury could have inferred that defendant
targeted Avina for robbery from the evidence that Avina took great pride in his
truck and had worked on it to make it look good, that defendant and his
companions rode in two cars that night, and that defendant had committed other
crimes that involved targeting and robbing a victim. (See Evid. Code, § 1101.)
The Attorney General also points out that the incident occurred around 10:00 p.m.,
when defendant and his companions could avoid being seen. But no inference of
watchful waiting arises from these facts without codefendant Huber’s statement to
supply meaning to them. Moreover, there is sufficient variation among
defendant’s other crimes, none of which involved bumping or otherwise stopping
a moving vehicle, that it is speculative to infer from the other crimes that the
Avina murder involved watchful waiting.
For the reasons stated above, we vacate the jury’s true finding on the lying-
in-wait special circumstance on the ground of insufficient evidence. Because
sufficient evidence does not support the lying-in-wait special-circumstance
(footnote continued from previous page)
in-wait special-circumstance allegation, the prosecutor’s argument appears to have
been improper. (Cf. Richardson, supra, 481 U.S. at p. 211; see also id. at p. 205,
fn. 2; People v. Love (1961) 56 Cal.2d 720, 730, disapproved on other grounds in
People v. Morse (1964 ) 60 Cal.2d 631, 637, fn. 2.) Defendant did not object to
the argument at trial, however, and he has not raised the issue on appeal.
113
allegation, retrial of that allegation is barred. (Burks v. United States (1978) 437
U.S. 1, 18; People v. Hatch (2000) 22 Cal.4th 260, 271-272.)
4. Sufficiency of the evidence of lying in wait as to murder victims
Ramirez, Sams, Nisbet, and Denogean
Defendant contends that the evidence admissible against him was
insufficient to support the lying-in-wait special circumstances as to murder victims
Ramirez, Sams, Nisbet, and Denogean. He argues that basing a special
circumstance finding on insufficient evidence violates his rights to due process of
law under article I, section 13 of the California Constitution and the Fourteenth
Amendment to the federal Constitution.
a. Watchful
waiting
Defendant argues that the evidence admissible against him was insufficient
to support the lying-in-wait special circumstances as to victims Ramirez and
Nisbet because there was no evidence of a “ ‘substantial period of watching and
waiting for an opportune time to act.’ ” (People v. Jurado, supra, 38 Cal.4th at
p. 119.)
With respect to the killing of Agustine Ramirez, the evidence showed that
he and his wife Linda owned the Magic Mushroom restaurant, that defendant had
dated the daughter of Linda’s friend Sylvia Medina, and that codefendant
Machuca had visited the restaurant a few weeks before the murder. Linda
Ramirez testified that around midnight on the night of the murder she and her
husband decided to leave the restaurant to go home in their separate cars, which
were parked in an alley behind the restaurant. Agustine went outside first; Linda
followed a few moments later. Agustine walked Linda to her car and started
walking toward his car. When Agustine was about 15 feet from Linda, another car
quickly drove up the alleyway and stopped, blocking his path. Agustine conversed
114
with that car’s passenger for about three seconds before the passenger shot him
with a shotgun. Linda later identified defendant as the shooter.
From that evidence, the jury reasonably could have concluded that
defendant targeted Agustine Ramirez because he was aware that Ramirez, a
restaurant owner, had money. The jury further could have concluded that on the
night of the crime defendant waited near the restaurant until Ramirez emerged into
the alley, then surprised him by quickly riding up in a car and confronting him.
Defendant argues there was no evidence of a substantial period of watchful
waiting for an opportune time to act because, had defendant been watching and
waiting, he would have accosted Agustine Ramirez when the latter first left the
restaurant, while he was alone in the alley. We disagree. Lying in wait does not
require that a defendant launch a surprise attack at the first available opportune
time. (People v. Hillhouse (2002) 27 Cal.4th 469, 501.) Rather, the defendant
“ ‘may wait to maximize his position of advantage before taking his victim by
surprise.’ ” (Ibid., quoting People v. Ceja (1994) 4 Cal.4th 1134, 1145.) Here, the
jury reasonably could have concluded from the evidence — including Linda’s
testimony and photographs of the crime scene — that defendant waited until such
time as Agustine Ramirez was in an open part of the alley where he was
vulnerable to attack.
With respect to the killing of Elizabeth Nisbet, her husband Neil Nisbet
testified that around 11:30 on the morning of the killing the two of them stopped at
the Puente Hills Mall to run an errand. Neil went into the mall while Elizabeth
stayed with the car to tidy up the backseat. Defendant admitted to the police that
he went to the mall that day intending to rob a jewelry store, but after parking and
observing Elizabeth Nisbet, he decided it would be easier to rob her. Defendant
explained: “I went to the mall and drove around for a little while and parked and
just sat there and I saw a lady. She came walking down. She got by her trunk,
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opened the back door of the truck [sic] and she went to the passenger side, opened
the driver’s side — I mean the passenger side of the door. She went in and she
was doing something in there. . . . [¶] In the backseat.” At that point defendant
forced his way into the Nisbets’ car and drove it away.
From that evidence, the jury reasonably could have concluded that
defendant watched Elizabeth Nisbet for at least the time it took her to open the
passenger door of her car and begin “doing something in . . . the backseat.” Only
at this point did defendant approach Nisbet and take her by surprise. Although the
question is close, substantial evidence supports the jury’s conclusion that
defendant waited and watched Nisbet for a “period not insubstantial” (People v.
Edwards (1991) 54 Cal.3d 787, 823) before choosing an opportune time to accost
her.
b. Murder “while” lying in wait
Defendant further contends that there was insufficient admissible evidence
to support the lying-in-wait special-circumstance findings as to victims Sams,
Nisbet, and Denogean because there was a cognizable interruption between the
period of watchful waiting and the time the victims were killed. Defendant points
out that, before being murdered, each victim was kidnapped and driven around for
a substantial period of time while defendant and his accomplices withdrew money
from the victims’ ATM accounts. Defendant contends that under these facts, the
special circumstance requirement that the murder occur “while” the defendant is
lying in wait (§ 190.2, former subd. (a)(15)) is not satisfied.
When the murders at issue here took place, the requirements of the lying-
in-wait special circumstance were slightly different from, and more stringent than,
the requirements for lying-in-wait first degree murder. (See, e.g., People v.
Gutierrez, supra, 28 Cal.4th at pp. 1148-1149.) Whereas lying-in-wait first degree
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murder required only that the murder be perpetrated “by means of” lying in wait
(§ 189), the lying-in-wait special circumstance applied to murder committed
“while lying in wait” (§ 190.2, former subd. (a)(15), italics added).25 We
interpreted the special circumstance as requiring “ ‘that the killing take place
during the period of concealment and watchful waiting.’ ” (People v. Gutierrez,
supra, 28 Cal.4th at p. 1149, quoting People v. Sims (1993) 5 Cal.4th 405, 434.)
We stated that this factor, among others, sufficiently distinguished murder
committed “while” lying in wait from other murders to satisfy the Eighth
Amendment requirement that a death eligibility circumstance “ ‘justify the
classification of that type of case as one warranting imposition of the death
penalty.’ ” (People v. Gutierrez, supra, at p. 1149, quoting People v. Sims, supra,
at p. 434.)
Although we have not defined the parameters of a murder committed
“during the period of concealment and watchful waiting,” the language of the
CALJIC instruction given in this case supplies meaning to that phrase. That
instruction stated: “Thus, for a killing to be perpetrated while lying in wait, both
the concealment and watchful waiting as well as the killing must occur during the
same time period, or in an uninterrupted attack commencing no later than the
moment concealment ends. [¶] If there is a clear interruption separating the
period of lying in wait from the period during which the killing takes place, so that
there is neither an immediate killing nor a continuous flow of the uninterrupted
25
Proposition 18, an initiative approved by the voters in the March 7, 2000,
Primary Election, and effective March 8, 2000, changed the language of the lying-
in-wait special circumstance to delete the word “while” and substitute in its place
“by means of.” (Stats. 1998, ch. 629, § 2; People v. Michaels (2002) 28 Cal.4th
486, 516.) The murders here took place before this change in the law, and the
change therefore does not affect this case.
117
lethal events, the special circumstance is not proved.” (CALJIC No. 8.81.15
(1989 rev.).)26
The language of the instruction was drawn from Domino v. Superior Court
(1982) 129 Cal.App.3d 1000 (Domino), a Court of Appeal decision on which
defendant relies. (See Com. to CALJIC No. 8.81.15.) In that case, the victim was
captured during the period the defendants were lying in wait, but was not killed
until some one to five hours later. It is not clear what happened to the victim
during the interim. The Court of Appeal granted a writ of prohibition restraining
further proceedings on the special circumstance. Focusing on the difference in
statutory language between first degree murder “by means of” lying in wait
(§ 189) and the special circumstance of murder “while” lying in wait (former
§ 190.2, subd. (a)(15)), the Court of Appeal in Domino concluded: “[T]o ignore or
minimize the importance of the word ‘while’ would violate the policy of
construing penal statutes in favor of the accused and would invade the legislative
province. To give proper impact to the term ‘while’ we read it as creating a
requirement that . . . the death penalty or life without possibility of parole may be
imposed only if the appropriate temporal relationship exists between the killing
and the lying in wait. . . . Thus, the killing must take place during the period of
concealment and watchful waiting or the lethal acts must begin at and flow
continuously from the moment the concealment and watchful waiting ends. If a
26
Judicial Council of California, Criminal Jury Instructions (2007)
CALCRIM No. 727 is similar. It states in pertinent part: “In order for a murder to
be committed while lying in wait, the attack must immediately follow the period
of watching and waiting. The lethal acts must begin at and flow continuously
from the moment the concealment and watchful waiting ends. If there is a
detectable interval between the period of watching and waiting and the period
during which the killing takes place, then the murder is not committed while lying
in wait.”
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cognizable interruption separates the period of lying in wait from the period during
which the killing takes place, the circumstances calling for the ultimate penalty do
not exist.” (Domino, supra, at p. 1011.)
In several cases, we have declined to decide whether Domino’s “restrictive”
reading of the lying-in-wait special circumstance is correct, choosing instead to
conclude that, on the facts of the case before us, the Domino standard was
satisfied. (E.g., People v. Morales, supra, 48 Cal.3d at p. 558; accord, People v.
Combs, supra, 34 Cal.4th at pp. 853-854 & fn. 7; People v. Edelbacher (1989) 47
Cal.3d 983, 1022; see also People v. Michaels, supra, 28 Cal.4th at p. 517; People
v. Carpenter, supra, 15 Cal.4th at p. 389; People v. Edwards, supra, 54 Cal.3d at
p. 826.)
In other cases, however, we seem to have assumed the viability of the
Domino formulation. (E.g., People v. Sims, supra, 5 Cal.4th at p. 434 [stating that
CALJIC No. 8.81.15 “accurately sets forth the necessary elements” of the lying-
in-wait special circumstance]; People v. Ceja, supra, 4 Cal.4th at p. 1140, fn. 2
[citing Domino in noting the difference between first degree murder by means of
lying in wait and the special circumstance of murder “while” lying in wait];
People v. Webster (1991) 54 Cal.3d 411, 449 [citing Domino with apparent
approval].) In People v. Gutierrez, we stated that the lying-in-wait special-
circumstance requirement that the murder occur “ ‘during the period of
concealment and watchful waiting’ ” constituted a “ ‘clear and specific
requirement[]’ ” that “ ‘justif[ied] the classification of that type of case as one
warranting imposition of the death penalty’ ” within the meaning of the Eighth
Amendment to the federal Constitution. (People v. Gutierrez, supra, 28 Cal.4th at
p. 1149, quoting People v. Sims, supra, 5 Cal.4th at p. 434.) Sims cited this court’s
decision in People v. Edelbacher for the proposition that the murder must occur
“during” the period of concealment and watchful waiting (Sims, supra, at p. 434);
119
People v. Edelbacher in turn cited and quoted from the Court of Appeal’s decision
in Domino (People v. Edelbacher, supra, 47 Cal.3d at p. 1022).
Additional consideration of Domino’s rationale may be warranted. But
whatever “during” means in this context, this case falls outside the limits of that
term. “During” means “at some point in the course of.” (Webster’s 3d New
Internat. Dict. (2002) p. 703.) The facts here show that these killings did not occur
in the course of lying in wait. The defendants accomplished the forcible
kidnapping of each victim while lying in wait, but then drove the still living
victims around in their cars for periods of one to three hours, while withdrawing
money from the victims’ bank accounts, before killing them. By the time of the
killings, the concealment, the watchful waiting, and the surprise attack all had
taken place at least one and up to three hours earlier.
The Attorney General argues that the lying-in-wait special circumstance is
satisfied here because “there was no evidence of lapses in contact with the
victims” between the period of watchful waiting and the time when they were
killed. But we have never held that merely maintaining “contact” with the victim
satisfies the requirements of the lying-in-wait special circumstance. (Cf. People v.
Morales, supra, 48 Cal.3d at p. 558 [Domino standard is satisfied where the lying
in wait is followed immediately by a “murderous and continuous assault” that
leads to the victim’s death].) We have held that there is no cognizable interruption
between the lying in wait and the killing where there is “no lapse in the culpable
mental state of the defendant.” (People v. Carpenter, supra, 15 Cal.4th at p. 389,
italics added.) Thus, “if a person lies in wait intending first to rape and second to
kill, then immediately proceeds to carry out that intent (or attempts to rape, then
kills), the elements of the lying-in-wait special circumstance are met.” (Ibid.)
Here, although the jury could have concluded that defendant and his accomplices
lay in wait intending to rob and to kill thereafter, and that they began carrying out
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the intent to rob immediately after the lying in wait ended, there was no evidence
that the defendants carried out their intent to kill immediately. On the contrary,
completing the robberies took an extended period of time. Contrast this with the
situation in Carpenter, where the end of the lying in wait, the attempted rape, and
the killing all occurred within a few minutes.
The prosecutor argued that lying in wait was shown because defendant
concealed his purpose to kill from each of the victims until the moment they were
killed. Pointing to the testimony of Rios and Aguirre that defendant told the
couple they would not be harmed because they were cooperating, and to
defendant’s statement that he gave murder victim Denogean similar assurances,
the prosecutor urged the jury to infer that defendant also must have lulled murder
victims Sams and Nisbet into believing they would not be harmed. But as we have
explained, “mere” concealment of purpose is not enough to support the lying-in-
wait special circumstance. (People v. Morales, supra, 48 Cal.3d at p. 557.)
Rather, such concealment must be contemporaneous with a substantial period of
watching and waiting for an opportune time to act, and followed by a surprise
attack on an unsuspecting victim from a position of advantage. (See ibid.) Here,
there was no evidence that, while concealing his purpose to kill, defendant
watched and waited for an opportune time to kill the victims. Rather, the evidence
suggests each was killed when, and only when, his or her ATM withdrawal limit
had been reached and the victim had been driven to a suitable location for killing.
Moreover, there was no evidence that the victims were surprised. Indeed, the
evidence suggests each victim must have been aware of being in grave danger
long before getting killed. Sams was forced into a dumpster and, according to
defendant, pleaded for his life before being shot. According to defendant, Nisbet
tried to escape, an indication that she feared for her life. And according to
defendant, Denogean said, “I know you are going to kill me” and challenged
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defendant to “go ahead and kill me now.” Denogean’s comments suggest she was
not fooled.
In sum, in each of the cases at issue here, there was a period of watchful
waiting culminating in surprise kidnapping, a series of nonlethal events, and then a
cold, calculated, inevitable, and unsurprising dispatch of each victim. We have
never held the lying-in-wait special circumstance to have been established on
similar facts. Were we to hold that sufficient evidence supports the lying-in-wait
special-circumstance allegations the jury found true here, it would be difficult to
say that there is any distinction between a murder committed “by means of” lying
in wait and a murder committed “while” lying in wait. Such a construction of the
lying-in-wait special circumstance would read the word “while” out of the statute.
Although we do not “minimize the heinousness of defendant’s deeds” (People v.
Hillhouse, supra, 27 Cal.4th at p. 499), we are compelled to conclude that on these
facts “the circumstances calling for the ultimate penalty [on the basis of lying in
wait] do not exist.” (Domino, supra, 129 Cal.App.3d at p. 1011.) Accordingly,
we will vacate the lying-in-wait special-circumstance findings as to murder
victims Sams, Nisbet, and Denogean. Retrial of these special circumstance
allegations is barred. (Burks v. United States, supra, 437 U.S. at p. 18; People v.
Hatch, supra, 22 Cal.4th at pp. 271-272.)
5. Constitutionality of the lying-in-wait special circumstance
Defendant contends that the lying-in-wait special circumstance, on its face,
violates the cruel and unusual punishments clause of the Eighth Amendment to the
United States Constitution because it fails to narrow the class of persons eligible
for the death penalty and fails to provide a meaningful basis for distinguishing
cases in which the death penalty is imposed from those in which it is not. We
repeatedly have rejected these precise contentions. (E.g., People v. Jurado, supra,
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38 Cal.4th at pp. 145-147 (conc. opn. of Kennard, J.); People v. Nakahara (2003)
30 Cal.4th 705, 721; People v. Gutierrez, supra, 28 Cal.4th at pp. 1148-1149;
People v. Morales, supra, 48 Cal.3d at pp. 557-558; People v. Edelbacher, supra,
47 Cal.3d at p. 1023; see also Morales v. Woodford (9th Cir. 2004) 388 F.3d 1159,
1174-1178, cert. den. sub nom. Morales v. Brown (2005) 546 U.S. 935.) We do
the same here.
Citing Maynard v. Cartwright (1988) 486 U.S. 356, defendant asserts that
the “ambiguous definition of what activity constitutes lying in wait provides a
confusing and incoherent standard of death eligibility and permits arbitrary and
capricious imposition of death, rendering the [lying-in-wait special] circumstance
unconstitutionally vague.” To the extent our previous cases have not addressed
this precise aspect of defendant’s Eighth Amendment attack on the lying-in-wait
special circumstance, we address it now.
In Maynard, a unanimous United States Supreme Court explained:
“Claims of vagueness directed at aggravating circumstances defined in capital
punishment statutes are analyzed under the Eighth Amendment and
characteristically assert that the challenged provision fails adequately to inform
juries what they must find to impose the death penalty and as a result leaves them
and appellate courts with the kind of open-ended discretion which was held invalid
in Furman v. Georgia, 408 U.S. 238 (1972).” (Maynard v. Cartwright, supra, 486
U.S. at pp. 361-362.) The Maynard court held that Oklahoma’s “ ‘especially
heinous, atrocious, or cruel’ ” aggravating circumstance statute was
unconstitutionally vague because it failed to guide and channel jury discretion —
in that an ordinary person honestly could believe that every unjustified, intentional
taking of life fell within it — and because the appellate court had failed to apply a
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limiting construction that would have eliminated the constitutional problem. (Id.
at pp. 363-364.)27
We reject defendant’s claim that the lying-in-wait special circumstance is
unconstitutionally vague. We have limited the special circumstance to cases in
which the killer intentionally takes life under circumstances that include a
concealment of purpose, a substantial period of watching and waiting for an
opportune time to act, and immediately thereafter a surprise attack on an
unsuspecting victim from a position of advantage. (People v. Jurado, supra, 38
Cal.4th at p. 119; People v. Gutierrez, supra, 28 Cal.4th at p. 1149; People v.
Morales, supra, 48 Cal.3d at p. 557.) Because “[t]he narrowing construction
absent in Maynard is present here” (People v. Mincey (1992) 2 Cal.4th 408, 454),
the lying-in-wait special circumstance is not unconstitutionally vague. (Cf. People
v. Chatman, supra, 38 Cal.4th at pp. 394-395 [rejecting vagueness challenge to
torture-murder special circumstance]; People v. Mincey, supra, at p. 454 [same].)
Finally, defendant contends that if this court concludes the evidence is
sufficient to support the lying-in-wait special-circumstance findings here, then the
special circumstance is unconstitutional as applied to this case. Because we will
vacate the lying-in-wait special-circumstance findings as to murder victims Avina,
Sams, Nisbet, and Denogean, we need not reach this argument as it pertains to
those findings. As to the Ramirez murder, defendant in essence is arguing that the
lying-in-wait special circumstance is too broad if the facts of his case fall within it.
27
In Oklahoma, the aggravating circumstances are the factors that render a
defendant convicted of first degree murder eligible for the death penalty. (See
Okla.Stat.Ann. tit. 21, §§ 701.9, 701.10, 701.11, 701.12.) They thus are analogous
to special circumstances under California law. (See People v. Bacigalupo (1993)
6 Cal.4th 457, 467-468.)
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That is simply another way to state his facial attack on the statute, which we have
rejected above. (See People v. Moon, supra, 37 Cal.4th at p. 44.)
6. Felony-murder special circumstances
For the Sams, Nisbet, and Denogean murders, the jury found true two
felony-murder special-circumstance allegations: (1) the murder was committed
during the commission of a robbery; and (2) the murder was committed during the
commission of a kidnapping or kidnapping for robbery. Defendant asserts that
only one felony-murder special-circumstance finding per homicide is permitted
under the plain language of section 190.2, subdivision (a)(17). We have in the
past rejected this contention. (People v. Monterroso (2004) 34 Cal.4th 743, 767-
768; People v. Holt (1997) 15 Cal.4th 619, 682.) Defendant supplies no
persuasive reason to revisit the issue.
Defendant contends that the jury’s multiple felony-murder special-
circumstance findings per homicide were contrary to the jury instructions, which
told the jurors they could find true a “robbery or kidnapping” special
circumstance. (Italics added.)28 We disagree. The introductory special
circumstance instruction stated: “[I]f you find that a defendant in this case is
guilty of murder in the first degree, you must then determine if one or more of the
following special circumstances are true or not true: murder in the commission of
robbery, murder in the commission of kidnapping, lying in wait, multiple murder
convictions.” (Italics added.) The introductory instruction thus informed the jury
that it could find true both the robbery-murder and the kidnapping-murder special-
28
The instruction read in pertinent part: “To find that the special
circumstance referred to in these instructions as murder in the commission of
robbery or kidnapping true, it must be proved the murder was committed while the
defendant was engaged in the commission of a robbery or kidnapping.” (See
CALJIC No. 8.81.17 (1991 rev.).)
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circumstance allegations for each murder for which it found a particular defendant
guilty. The verdict therefore was not contrary to the jury instructions as a whole.
(See People v. Harrison, supra, 35 Cal.4th at p. 252.)
Defendant further argues that submitting multiple felony-murder special-
circumstance allegations per homicide to the jury constituted a “failure of the state
to adhere to the procedures prescribed by [state] law” in violation of his right
under the federal Constitution to due process of law. (See Hicks v. Oklahoma,
supra, 447 U.S. at p. 346.) As explained above, state procedures permitted the
jury to find true more than one felony-murder special-circumstance allegation per
homicide. Therefore, this claim fails.
7. Lesser included offenses
Defendant was convicted of the robbery (§ 211), simple kidnapping (§ 207,
subd. (a)), and kidnapping to commit robbery (§ 209, subd. (b)) of victims Valdez,
Rios, Aguirre, Sams, Nisbet, and Denogean. Defendant contends that his
convictions for the simple kidnapping (counts 7, 12, 13, 17, 21, and 25) and
robbery (counts 5, 8, 9, 15, 19, and 23) of each of these victims must be reversed
because those crimes are lesser included offenses of kidnapping for robbery.
In this state, multiple convictions may not be based on necessarily included
offenses arising out of a single act or course of conduct. (People v. Montoya
(2004) 33 Cal.4th 1031, 1034; People v. Ortega (1998) 19 Cal.4th 686, 692;
People v. Pearson (1986) 42 Cal.3d 351, 355.) An offense is necessarily included
within another if “the statutory elements of the greater offense . . . include all the
elements of the lesser offense.” (People v. Birks (1998) 19 Cal.4th 108, 117;
accord, People v. Montoya, supra, at p. 1034.) “In other words, ‘if a crime cannot
be committed without also necessarily committing a lesser offense, the latter is a
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lesser included offense within the former.’ ” (People v. Montoya, supra, at
p. 1034, quoting People v. Lopez (1998) 19 Cal.4th 282, 288.)
As the Attorney General concedes, simple kidnapping is a necessarily
included offense of kidnapping to commit robbery, the latter having an additional
element of intent to rob that arises before the kidnapping commences. (People v.
Bailey (1974) 38 Cal.App.3d 693, 699.) We therefore reverse defendant’s six
convictions for simple kidnapping (counts 7, 12, 13, 17, 21, and 25).
We conclude, however, that robbery is not a lesser included offense of
kidnapping for robbery. A defendant may be convicted of kidnapping for robbery
even if the robbery is not completed. (People v. Davis, supra, 36 Cal.4th at
p. 565; People v. Beaumaster (1971) 17 Cal.App.3d 996, 1007.) The defendant
need only have the specific intent to commit a robbery when the kidnapping
begins. (People v. Davis, supra, at pp. 565-566.) Robbery, on the other hand,
requires that the defendant actually gain possession of the victim’s property and
take it away. (People v. Hill, supra, 17 Cal.4th at p. 852.) Because one can
commit a kidnapping for robbery without also committing a robbery, robbery is
not a lesser included offense of kidnapping for robbery.
Defendant claims in the alternative that section 654 bars multiple
punishment for both the kidnappings for robbery and the robberies of each of the
victims. We agree. At the time of trial, section 654 provided in pertinent part:
“An act or omission which is made punishable in different ways by different
provisions of this code may be punished under either of such provisions, but in no
case can it be punished under more than one.” (Former § 654, as amended by
Stats. 1977, ch. 165, § 11, p. 644.) Section 654 bars multiple punishment for
separate offenses arising out of a single occurrence where all of the offenses were
incident to one objective. (Neal v. State of California (1960) 55 Cal.2d 11, 19.)
Here, the kidnappings for robbery and the robberies of each victim were
127
committed “pursuant to a single intent or objective,” that is, to rob the victims of
their cars and/or cash from their bank accounts. (People v. Beamon (1973) 8
Cal.3d 625, 639.) Accordingly, the sentences for the robbery convictions in
counts 5, 8, 9, 15, 19, and 23 must be stayed.29 (See People v. Norell (1996) 13
Cal.4th 1, 9; People v. Beamon, supra, at p. 640.)
8. Effect of reversals on penalty
We are reversing defendant’s six convictions for simple kidnapping, and
we are vacating the lying-in-wait special circumstances as to murder victims
Avina, Sams, Nisbet, and Denogean. Defendant contends that under these
circumstances we must remand for a new penalty determination. We are not
persuaded.
Defendant first asserts that the jury’s consideration of the reversed
convictions and vacated special circumstances under section 190.3, factor (a) —
which allows the jury to weigh in its penalty calculus “the circumstances of the
crime of which the defendant was convicted in the present proceeding and the
29
Defendant argues that his convictions for both robbery and kidnapping for
robbery were improper because defendant achieved his larcenous purpose. He
relies on the following statement from a 40-year-old case: “The offense of
robbery, of course, is necessarily included within the offense of kidnapping for the
purpose of robbery where the kidnaper achieves his purpose.” (People v. Ford
(1966) 65 Cal.2d 41, 49, overruled on other grounds in People v. Satchell (1971) 6
Cal.3d 28, 35-41, overruled, in turn, on other grounds in People v. Flood (1998)
18 Cal.4th 470.) Ford does not govern the outcome here because the statement on
which defendant relies was dictum made in the context of a multiple punishment
claim, not a multiple conviction claim. Other cases have similarly stated, in the
context of section 654 multiple punishment claims, that robbery is a lesser
included offense of kidnapping for robbery. (E.g., People v. Gomez (1992) 2
Cal.App.4th 819, 826-827 [§ 654 bars punishment for both kidnapping for robbery
and robbery].) We disapprove such cases to the extent they can be read to hold or
suggest that robbery is a lesser included offense of kidnapping for robbery for
purposes of the rule barring conviction on necessarily included offenses.
128
existence of any special circumstances found to be true” — rendered the penalty
verdict unreliable in violation of the Eighth Amendment to the United States
Constitution. We disagree. Ten valid special circumstances remain rendering
defendant eligible for the death penalty: five robbery-murder special
circumstances, three kidnapping-murder special circumstances, one lying-in-wait
special circumstance, and one multiple-murder special circumstance. The jury’s
consideration of the invalid lying-in-wait special circumstances as to murder
victims Avina, Sams, Nisbet, and Denogean and the six reversed kidnapping
convictions did not so skew the penalty determination process as to result in
constitutional error, because “all of the facts and circumstances admissible to
establish [these special circumstances and convictions] were also properly
adduced as aggravating facts bearing on the ‘circumstances of the crime’
sentencing factor” under section 190.3, factor (a). (Brown v. Sanders (2006) 546
U.S. 212, 224.)
Defendant next contends that the federal Constitution’s Sixth Amendment,
as construed by the high court in Apprendi v. New Jersey (2000) 530 U.S. 466,
Ring v. Arizona (2002) 536 U.S. 584, and the cases that followed (Cunningham v.
California (2007) 549 U.S. ___ [127 S.Ct. 856]; United States v. Booker (2005)
543 U.S. 220; Blakely v. Washington (2004) 542 U.S. 296), requires a jury
redetermination of the penalty whenever the jury has considered improper matter
under section 190.3, factor (a) — such as, in this case, the invalid lying-in-wait
special circumstances. That is so, defendant asserts, because “[t]his court cannot
conduct harmless error analysis” of the effect of the invalid special circumstances
on the penalty “without making findings that go beyond” the facts reflected in the
jury’s verdict. We disagree.
In Apprendi, the United States Supreme Court explained that under the
Sixth Amendment’s jury trial guarantee, “[e]xcept for a prior conviction, ‘any fact
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that increases the penalty for a crime beyond the prescribed statutory maximum
must be submitted to a jury, and proved beyond a reasonable doubt.’ ”
(Cunningham v. California, supra, 549 U.S. at p. ___ [127 S.Ct. at p. 868],
quoting Apprendi v. New Jersey, supra, 530 U.S. at p. 490.) The statutory
maximum is “ ‘the maximum sentence a judge may impose solely on the basis of
the facts reflected in the jury verdict or admitted by the defendant.’ ”
(Cunningham v. California, supra, 549 U.S. at p. ___ [127 S.Ct. at p. 865],
quoting Blakely v. Washington, supra, 542 U.S. at p. 303.) Thus, statutory factors
that operate as the “ ‘functional equivalent of an element of a greater offense’ ” by
exposing a defendant to the death penalty where the jury’s guilt verdict alone
would not must be found by the jury beyond a reasonable doubt. (Ring v. Arizona,
supra, 536 U.S. at p. 609, quoting Apprendi v. New Jersey, supra, at p. 494, fn. 19;
see Ring v. Arizona, supra, at pp. 604-609.)
In California, the statutory factor that renders a defendant found guilty of
first degree murder eligible for the death penalty is the special circumstance.
(People v. Bacigalupo, supra, 6 Cal.4th at pp. 467-468.) The special circumstance
thus operates as the functional equivalent of an element of the greater offense of
capital murder. (See People v. Prieto (2003) 30 Cal.4th 226, 263.) The jury’s
finding beyond a reasonable doubt of the truth of a special circumstance allegation
satisfies the requirements of the Sixth Amendment as articulated in Apprendi and
Ring. (People v. Prieto, supra, at p. 263.) There is no federal constitutional
requirement that a jury then conduct the weighing of aggravating and mitigating
circumstances and determine the appropriate sentence. (See People v. Griffin
(2004) 33 Cal.4th 536, 595 [weighing process is not factfinding].) Indeed, the
high court in Apprendi and Ring did not purport to overrule its holding in Spaziano
v. Florida (1984) 468 U.S. 447, 465, that “there is no constitutional imperative
that a jury have the responsibility of deciding whether the death penalty should be
130
imposed” once it has found the facts rendering the defendant eligible for that
penalty. (See Ring v. Arizona, supra, 536 U.S. at p. 612 (conc. opn. of Scalia, J.)
[“What today’s decision says is that the jury must find the existence of the fact
that an aggravating factor existed. Those States that leave the ultimate life-or-
death decision to the judge may continue to do so”]; accord, Brice v. State (Del.
2003) 815 A.2d 314, 322; Ritchie v. State (Ind. 2004) 809 N.E.2d 258, 266; State
v. Gales (Neb. 2003) 658 N.W.2d 604, 626-627; Fry v. New Mexico (N.M. 2005)
126 P.3d 516, 533; but see Johnson v. State (Nev. 2002) 59 P.3d 450, 460
[Nevada’s requirement that the sentencer determine there are “no mitigating
circumstances sufficient to outweigh the aggravating circumstance[s]” is in part
factual and therefore a jury must make the finding].)
If a jury determination of penalty is not constitutionally required in the first
instance, then it surely cannot violate the right to trial by jury for a reviewing court
to determine whether a trial error adversely affected the penalty verdict in a
particular case. Accordingly, we reject defendant’s contention that the federal
Constitution’s Sixth Amendment requires a jury redetermination of penalty and
prevents us from conducting harmless error review. (Accord, Cauthern v. State
(Tenn.Crim.App. 2004) 145 S.W.3d 571, 623-624.)
Here, to the extent the jury’s consideration of the invalid lying-in-wait
special circumstances and kidnapping convictions as aggravating facts under
section 190.3, factor (a) constituted error, such error was harmless under any
standard. There is no likelihood that the jury’s consideration of the mere existence
of the lying-in-wait special-circumstance findings, as opposed to the facts
underlying them, tipped the balance toward death. (Cf. Brown v. Sanders, supra,
546 U.S. at pp. 224-225 [effect of placing statutory label of “aggravating
circumstance” on evidence the jury otherwise could have considered was
“inconsequential”].) The prosecutor’s penalty phase argument did not mention
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any special circumstances as such, but rather focused on the brutality of the crimes
and the aggravating and mitigating evidence presented at the penalty phase,
including defendant’s background, his statements to a psychologist and others, his
criminal history, his lack of remorse, and his behavior while incarcerated. The
argument by defendant’s counsel likewise emphasized defendant’s deprived and
abusive upbringing and his alleged brain damage, without mentioning the special
circumstances. Given the horrific facts before the jury demonstrating defendant’s
proclivity for repeated violent criminal activity, and the lack of any indication in
the record that the jury’s true findings regarding the invalid lying-in-wait special
circumstances played any role in its penalty determination, we are satisfied the
jury’s consideration of those special circumstances under section 190.3, factor (a)
did not affect the penalty verdict.
For similar reasons, the jury’s consideration of the six invalid convictions
for simple kidnapping was harmless under any standard. All of the facts
underlying those convictions were properly before the jury in relation to the
convictions for kidnapping for robbery and thus were properly considered as
aggravating under section 190.3, factor (a). Neither the prosecutor’s nor
defendant’s counsel’s arguments mentioned the kidnapping convictions. We are
satisfied that the jury’s consideration of the kidnapping convictions did not affect
the penalty verdict.
Finally, for the reasons expressed above, we conclude that the jury’s
consideration of all of the reversed counts and invalid special circumstances in the
aggregate did not affect the penalty verdict.
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F. Penalty Phase Issues
1. Failure to hold a competency hearing
Defendant asserts that the trial court’s failure to suspend proceedings and
conduct a competency hearing at the beginning of the penalty phase, despite
substantial evidence that defendant was incompetent to stand trial, violated his
state statutory rights under sections 1367 and 1368 and his federal constitutional
right to due process of law.
The issue arose after defendant made statements, both in front of the jury
and outside the jury’s presence, suggesting that he had been involved in an
uncharged murder. During the testimony of prosecution witness Raychel Sarabia
— who testified that defendant had admitted his involvement in several of the
November 1989 robbery offenses presented as prior crimes aggravating evidence
— defendant interjected: “Bitch, you was at a murder too, fuck that. I got to go,
bitch, you coming with me.” A few moments later, defendant exclaimed: “This
bitch guilty of murder. She is just as guilty of murder just like me, so it ain’t no
big deal.” After the jurors had left the courtroom, defendant stated: “She is just as
guilty as everybody else sitting right here right now. [¶] Fuck that right now.”
When the court suggested a recess so counsel could speak with defendant,
defendant interrupted: “We don’t need no recess. You can bring them in now.
One more murder don’t make no difference. You all can arrest this bitch right
now.” When the court again suggested that counsel talk to his client and “tell
[him] at length that [his] outbursts may have an adverse effect on the jury,”
defendant commented: “Charge me to another crime. One more don’t make no
difference.”
Based on these outbursts, defendant’s counsel expressed his belief that
defendant was not competent to understand the gravity of the proceedings, to
control himself, or to assist counsel. The trial court responded that a defendant’s
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ability to assist his counsel was a “vitally different matter” from his willingness to
cooperate with counsel or counsel’s ability to control his client. Nonetheless, the
court entertained defendant’s motion to have himself transported to a private
medical facility for a neurological workup and a BEAM scan (explained as a
“glorified CAT scan”) of his brain. In support of the motion, defendant submitted
a letter from Dr. Francis Crinella, a psychologist, stating there was considerable
evidence that defendant had suffered brain damage, that defendant’s brain
functioning continued to be abnormal, and that the requested BEAM testing would
reveal whether there was structural damage or abnormal electrochemical activity
in defendant’s brain, causing defendant to have “less conscious control of his
actions.”
Ultimately, the trial court denied counsel’s request for neurological testing
and declined to conduct a hearing into defendant’s competency. To the extent the
testing was intended to provide evidence in mitigation, the court found defendant’s
request untimely. To the extent the testing was intended to supply evidence of
incompetence to stand trial, the court stated: “Well, my observations during the
course of a rather lengthy trial, that [defendant] was very perceptive and did in fact
cooperate with his counsel and I have seen nothing in the penalty stage, at least as
to this point in time, that he isn’t attempting to do the same thing. . . . [¶] So there
is nothing that apparent to me, in any event, other than [defense counsel’s]
statement. [¶] And I am of the firm opinion . . . so there is no question as to why I
made the decision, that this is just one more attempt or ruse to delay the
proceedings and to avoid what the ultimate judgment of the jury may or may not
be.”
The trial court did not err. “Both the due process clause of the Fourteenth
Amendment to the United States Constitution and state law prohibit the state from
trying or convicting a criminal defendant while he or she is mentally incompetent.
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(§ 1367; Drope v. Missouri (1975) 420 U.S. 162, 181; Pate v. Robinson (1966)
383 U.S. 375, 384-386; People v. Ramos (2004) 34 Cal.4th 494, 507.) A
defendant is incompetent to stand trial if he or she lacks a ‘ “sufficient present
ability to consult with his lawyer with a reasonable degree of rational
understanding — and . . . a rational as well as a factual understanding of the
proceedings against him.” ’ (Dusky v. United States (1964) 362 U.S. 402, 402;
see also Godinez v. Moran (1993) 509 U.S. 389, 399-400; § 1367; People v.
Stewart (2004) 33 Cal.4th 425, 513.)” (People v. Rogers (2006) 39 Cal.4th 826,
846-847.)
“Both federal due process and state law require a trial judge to suspend trial
proceedings and conduct a competency hearing whenever the court is presented
with substantial evidence of incompetence, that is, evidence that raises a
reasonable or bona fide doubt concerning the defendant’s competence to stand
trial. [Citations.] . . . Evidence of incompetence may emanate from several
sources, including the defendant’s demeanor, irrational behavior, and prior mental
evaluations. [Citations.]” (People v. Rogers, supra, 39 Cal.4th at p. 847.) But to
be entitled to a competency hearing, “a defendant must exhibit more than bizarre
. . . behavior, strange words, or a preexisting psychiatric condition that has little
bearing on the question of whether the defendant can assist his defense counsel.
[Citations.]” (People v. Ramos, supra, 34 Cal.4th at p. 508.)
“A trial court’s decision whether or not to hold a competence hearing is
entitled to deference, because the court has the opportunity to observe the
defendant during trial. [Citations.] The failure to declare a doubt and conduct a
hearing when there is substantial evidence of incompetence, however, requires
reversal of the judgment of conviction. [Citations.]” (People v. Rogers, supra, 39
Cal.4th at p. 847.)
135
Defendant contends there was substantial evidence before the trial court of
his incompetence to stand trial, consisting of trial counsel’s declaration of a doubt
that defendant was able to rationally assist in his defense; the opinion of defense
psychologist Dr. Crinella that defendant’s brain functioning was abnormal; and
defendant’s irrational and counterproductive behavior at trial. We disagree that
this amounted to substantial evidence of defendant’s incompetence. First,
although a defense counsel’s opinion that his client is incompetent is entitled to
some weight, such an opinion alone does not compel the trial court to hold a
competency hearing unless the court itself has expressed a doubt as to the
defendant’s competence. (§ 1368; People v. Rodrigues (1994) 8 Cal.4th 1060,
1111-1112; People v. Howard (1992) 1 Cal.4th 1132, 1163-1164.) Here, the trial
court entertained no such doubt.
Second, we have said that if a qualified mental health expert who has
examined the defendant “ ‘states under oath with particularity that in his
professional opinion the accused is, because of mental illness, incapable of
understanding the purpose or nature of the criminal proceedings being taken
against him or is incapable of assisting in his defense or cooperating with
counsel,’ ” that is substantial evidence of incompetence. (People v. Stankewitz
(1982) 32 Cal.3d 80, 92, quoting People v. Pennington (1967) 66 Cal.2d
508, 519.) But Dr. Crinella’s declaration said nothing about defendant’s
competence to stand trial. Rather, Dr. Crinella stated that the evidence indicated
that defendant might suffer from brain damage that might cause defendant to have
“less conscious control of his actions.” The object of the recommended testing
was to confirm the existence of the alleged brain damage and to learn more about
“the origins of [defendant’s] violent behavior” so as to serve “the interests of
justice” and determine if defendant’s behavior could be controlled with
medication. Crinella did not render any opinion on defendant’s ability to
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understand the trial proceedings or to assist or cooperate with counsel.
Accordingly, nothing in Crinella’s letter raised a doubt about defendant’s
competence. (Cf. People v. Rodrigues, supra, 8 Cal.4th at p. 1111.)
Third, defendant’s outbursts at trial did not demonstrate incompetence. To
the contrary, his statements indicated the depth of his understanding of the
proceedings and his ability to assist counsel. (See People v. Marks (2003) 31
Cal.4th 197, 220-221.) For example, during a discussion of whether prosecution
witness Raychel Sarabia should be released, defendant suggested, “Put her on
recall or something. We want her back in here.” Defendant’s counsel took up the
suggestion and reserved the right to recall Sarabia. And defendant’s comments
during Sarabia’s testimony could be understood as an effort to impeach her
credibility because she was an accomplice in prior offenses.
Defendant argues that his outbursts were so counterproductive as to be
“suicidal.” Defendant points to his statement during the testimony of an expert
witness: “I’m not scared to go. I’m ready to go. Please give me the death. I’m
not afraid to go. No, man, I ain’t.” But a defendant’s preference for the death
penalty does not invariably demonstrate incompetence. (People v. Ramos, supra,
34 Cal.4th at p. 509.) Notably, there is no evidence in the record that defendant
actually attempted suicide or made preparations to do so. (Cf. Drope v. Missouri,
supra, 420 U.S. at pp. 179-180; People v. Rogers, supra, 39 Cal.4th at p. 848
[“[a]ctual suicide attempts or suicidal ideation, in combination with other factors,
may constitute substantial evidence raising a bona fide doubt regarding a
defendant's competence to stand trial”].)
Defendant further faults the trial court for concluding defendant’s
unwillingness to cooperate with his counsel did not equate with an inability to
assist counsel. But we have recognized a similar distinction. (See, e.g., People v.
Davis (1995) 10 Cal.4th 463, 527-528; People v. Laudermilk (1967) 67 Cal.2d
137
272, 287.) If there is testimony from a qualified expert that, because of a mental
disorder, a defendant truly lacks the ability to cooperate with counsel, a
competence hearing is required. (See, e.g., People v. Stankewitz, supra, 32 Cal.3d
at p. 93, fn. 7.) Here, however, there was no substantial evidence that defendant’s
lack of cooperation stemmed from inability rather than unwillingness, and the trial
court’s comments suggest that it found defendant’s problem to be of the latter type
rather than the former. In these circumstances, no competency hearing was
required.
The trial court had the opportunity to observe defendant’s behavior and
demeanor at trial. The court observed that defendant was “perceptive” and able to
cooperate with counsel. Nothing in this record causes us to doubt the accuracy of
the trial court’s assessment. There was no substantial evidence of incompetence
before the trial court, and the court thus did not err in not declaring a doubt or in
not conducting a competence hearing.
2. Admission
of
aggravating evidence
Defendant contends that the trial court erred by admitting aggravating
evidence that fell within none of the factors set forth in section 190.3. He further
argues that the jury instructions on aggravating evidence were flawed, and that
these errors violated his federal constitutional rights, warranting reversal of the
penalty judgment. We find no basis for reversal.
a. Damage to holding cell wall
During the prosecution’s penalty phase case-in-chief, Los Angeles County
Sheriff’s Deputy Robert Fowler testified that one day during the trial he found a
hole in the wall of the courthouse lockup where defendant was housed when he
was not in the courtroom. The hole was about 11 inches in diameter and
penetrated the plaster of the wall, but not the wire mesh underneath. The leg brace
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defendant had been wearing that day was bent and scuffed. Admission of this
evidence was error, defendant asserts, because it was not evidence of “criminal
activity by the defendant which involved the use or attempted use of force or
violence or which involved the express or implied threat to use force or violence”
under section 190.3, factor (b).
Defendant did not object to Deputy Fowler’s testimony about the damage
to the holding cell wall. Later, at the close of the prosecution’s case-in-chief,
defendant objected to the admission into evidence of photographs showing
damage to the wall. Defendant did not, however, move to strike the testimony of
Deputy Fowler. Under these circumstances, defendant has forfeited his claim
insofar as it challenges the admission of Deputy Fowler’s testimony about the
damage to the cell wall. (People v. Frank (1990) 51 Cal.3d 718, 732-733; see also
People v. Lewis (2001) 26 Cal.4th 334, 392.)
Even were the claim fully preserved for review, defendant would not be
entitled to relief. We assume for the sake of argument that the evidence about the
damage to the cell wall was inadmissible under section 190.3, factor (b), because it
involved actual or threatened violent injury only to property, not to any person.
(See People v. Boyd, supra, 38 Cal.3d at p. 776.) Nonetheless, error in the
admission of evidence under section 190.3, factor (b) is reversible only if “there is
a reasonable possibility it affected the verdict,” a standard that is “essentially the
same as the harmless beyond a reasonable doubt standard of Chapman v.
California (1967) 386 U.S. 18, 24.” (People v. Lancaster (2007) 41 Cal.4th 50,
94.)
Here, there is no reasonable possibility that any improperly admitted
evidence affected the penalty verdict. The cell wall damage evidence played a
very small role in the prosecutor’s closing argument. (See People v. Lancaster,
supra, 41 Cal.4th at p. 95; People v. Jackson (1996) 13 Cal.4th 1164, 1233.) The
139
primary focus of the prosecutor’s argument, as it pertained to defendant, was the
brutality of the crimes, defendant’s callous attitude toward the victims and to
killing in general, and the impact of the crimes on the victims’ families. The
prosecutor mentioned defendant’s attempted escape only in a perfunctory manner.
Notably, the prosecutor did not attempt to depict defendant as a significant escape
risk; nor did he express the notion that the death penalty was the only means of
protecting society from defendant. (Cf. People v. Jackson, supra, at pp. 1232-
1233.)
Further, the cell wall damage evidence was not a major part of the
prosecution’s case in aggravation. Here, as in People v. Lancaster, “[m]uch more
direct and graphic evidence of defendant’s violent conduct was before the jury.”
(People v. Lancaster, supra, 41 Cal.4th at p. 95.) Not only did the jury have
before it evidence of five brutal murders of innocent victims and the kidnappings
and robberies of three additional victims that, but for chance, could themselves
have ended in murder, it also had before it evidence that in 1989 defendant had
participated in five additional robberies, and that defendant had possessed a
weapon in jail. “In light of the circumstances of the charged crimes and the
volume of evidence of prior criminal activity that was properly admitted, there can
be no reasonable possibility that any improperly admitted evidence was
prejudicial.” (People v. Pinholster (1992) 1 Cal.4th 865, 963, fn. omitted.)
b. Defendant’s
outbursts
As noted above, defendant interrupted prosecution witness Raychel
Sarabia’s testimony before the jury with outbursts suggesting, among other things,
that he and Sarabia were involved in an uncharged murder. Defendant’s outbursts
continued outside the jury’s presence. Over defendant’s objection, the trial court
permitted Detective Lee, who had been present in the courtroom when the
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outbursts occurred, to read to the jury a transcript of defendant’s statements made
outside the jury’s presence. The transcript included the comments of the court and
counsel interspersed with defendant’s comments.
Defendant insists the evidence of his conduct outside the jury’s presence
was inadmissible under section 190.3, factor (b). Defendant first contends that his
statements did not constitute an admission to any of the crimes about which
Sarabia testified, but rather implied his guilt in an unspecified murder. As such,
he asserts, the statements were not relevant under section 190.3, factor (b). We
disagree. A defendant’s own hearsay statements are admissible against him (Evid.
Code, § 1220; People v. Davis, supra, 36 Cal.4th at p. 535), as long as they satisfy
the test of relevance. Relevant evidence is evidence “having any tendency in
reason to prove or disprove any disputed fact that is of consequence to the
determination of the action.” (Evid. Code, § 210.) Here, the jury reasonably
could have construed defendant’s out-of-court statements — “She is just as guilty
as everyone else sitting here right now” and “Charge me to another crime. One
more don’t make no difference” — as oblique admissions to the crimes about
which Sarabia testified, to an unspecified crime, or to the crimes for which
defendant had already been convicted. As such, they were admissible as
statements of the defendant, and relevant under section 190.3, factors (a)
(circumstances of the capital crimes) and (b) (prior violent crimes).
Defendant further argues that the comments of the trial court and counsel
that were read to the jury — including the prosecutor’s comment that Sarabia
might be reluctant to return to the court to testify again — were not relevant to any
section 190.3 factor. The trial court permitted the comments in question to be read
to the jury to supply context for defendant’s comments. That ruling was
reasonable. Further, no prejudice is conceivable. Most of the court’s and
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counsel’s comments were innocuous, and the jury itself easily could have inferred
that Sarabia was afraid of defendant.
c. Shank
The prosecution presented evidence that in June 1992, while defendant was
housed in the county jail awaiting trial, a homemade stabbing instrument known as
a shank was found concealed inside the mattress in defendant’s single-person cell.
Defendant asserts that this evidence was inadmissible under section 190.3, factor
(b).
Defendant did not object to this evidence at trial and therefore has forfeited
his claim of error. (People v. Tuilaepa (1992) 4 Cal.4th 569, 588.) Were we to
reach the merits of the claim, we would reject it. “It is settled that a defendant’s
knowing possession of a potentially dangerous weapon in custody is admissible
under factor (b).” (Id. at p. 589.) Defendant argues there was no evidence the
shank was found on his person or that he carried it in situations involving contact
with other persons. But we have never required actual use or carrying of a weapon
for section 190.3, factor (b), to apply. “[M]ere possession of a potentially
dangerous weapon in custody involves an implied threat of violence.” (People v.
Martinez (2003) 31 Cal.4th 673, 697.) Here, a sheriff’s deputy testified that
during the early morning hours of June 13, 1992, when most inmates were asleep,
he heard scraping noises coming from defendant’s cell; on approaching the cell he
saw that defendant had placed a sheet over the bars so observers could not see in;
and, after defendant was removed from the cell, the deputy searched it and found
the shank. This evidence was sufficient for the jury to conclude that defendant’s
possession of the shank was “knowing.”
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d. CALJIC No. 8.87
The trial court instructed the jury in the language of the 1989 version of
CALJIC No. 8.87 regarding the consideration of evidence of prior criminal
activity under section 190.3, factor (b). Defendant asserts that this instruction
creates an impermissible mandatory presumption that any prior criminal activity
involved force or violence or the express or implied threat to use force or violence.
He further argues that the instruction improperly escalated the seriousness of prior
crimes evidence by erroneously telling the jury that the evidence established either
an “actual threat” or an “implied use” of force or violence rather than, as section
190.3, factor (b) requires, the “implied threat” to use force or violence. We
recently rejected identical contentions (People v. Nakahara, supra, 30 Cal.4th at
pp. 719-720), and we decline to revisit the issue.
e. California Youth Authority incarceration
Over defendant’s objection, the prosecutor introduced, under section 190.3,
factor (c), a document showing that defendant had been confined in the California
Youth Authority from November 24, 1989, until June 29, 1991, only a few days
before the murder of Jose Avina. Defendant contends that this evidence of his
California Youth Authority confinement was inadmissible under section 190.3,
factor (c), which permits the jury to consider in aggravation “[t]he presence or
absence of any prior felony conviction.”
We have long held that juvenile adjudications are not prior felony
convictions within the meaning of factor (c) and therefore are inadmissible in the
prosecution’s aggravation case-in-chief. (People v. Lewis, supra, 26 Cal.4th at
p. 378; People v. Burton (1989) 48 Cal.3d 843, 861-862.) As respondent
concedes, the document in question was evidence of a juvenile adjudication and
therefore the trial court erred in allowing the prosecution to introduce it in its case-
in-chief.
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There is no reasonable possibility, however, that the evidence affected the
penalty verdict. The admissible evidence of defendant’s pattern of repeated
criminal activity, from the 1989 robbery offenses until the offenses for which he
received the death penalty, was strong. (People v. Burton, supra, 48 Cal.3d at
pp. 863-864.) The evidence of defendant’s juvenile adjudication added little to the
prosecution’s case that defendant was an incorrigible repeat offender.
Moreover, the prosecutor did not exploit the evidence in closing argument.
He did not mention the evidence except to argue that defendant “went through a
crime spree back in ’89 and from ’89 to ’91 the only thing he learned was to
murder, was to get rid of those victims, the people who could identify him and put
him back in jail.” The prosecutor did not highlight the fact that defendant’s
confinement was related to a juvenile adjudication; indeed, he did not even utter
the word “juvenile.” That defendant commenced his murder spree a mere five
days after release from 19 months of confinement surely was relevant as a
“circumstance[] of the crime” under section 190.3, factor (a). Accordingly, any
improper prejudice was minimal and provides no basis for reversal.
f. Federal constitutional error
Defendant contends that the admission of nonstatutory aggravating
evidence violated his right to due process of law under the Fourteenth Amendment
to the federal Constitution (see Hicks v. Oklahoma, supra, 447 U.S. at p. 346) and
rendered the penalty verdict unreliable in violation of the Eighth Amendment to
the federal Constitution (see Zant v. Stephens (1983) 462 U.S. 862, 885). He
asserts that the violations in combination cannot be considered harmless beyond a
reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 24.) We
disagree. We have found no reasonable possibility (People v. Brown, supra, 46
Cal.3d at pp. 446-448) that any error or potential error alone affected the verdict.
144
We likewise conclude that there is no reasonable possibility that any errors or
potential errors in the admission of evidence at the penalty phase, considered in
the aggregate, affected the verdict, in light of the weight of the admissible
aggravating evidence. The latter included the circumstances of the capital crimes,
defendant’s prior criminal activity, and defendant’s possession of a weapon in jail.
The reasonable possibility standard is functionally equivalent to the harmless-
beyond-a-reasonable-doubt standard of Chapman v. California, supra, 386 U.S. at
page 24. (People v. Lancaster, supra, 41 Cal.4th at p. 94.) Accordingly, any
federal constitutional error was harmless beyond a reasonable doubt.
3.
CALJIC No. 8.85
Defendant launches several attacks on the constitutionality of CALJIC No.
8.85, a standard jury instruction given in this case that identifies the aggravating
and mitigating circumstances the jury is to consider in selecting between the
penalties of death and life imprisonment without possibility of parole. As
defendant acknowledges, we have in the past repeatedly rejected these
contentions. Thus, we have held the trial court is not obligated to identify which
factors are mitigating and which are aggravating (People v. Rogers, supra, 39
Cal.4th at p. 897; People v. Farnam (2002) 28 Cal.4th 107, 191), or to instruct that
the absence of evidence supporting a particular mitigating factor is not aggravating
(People v. Rogers, supra, at p. 897; People v. Pollock (2004) 32 Cal.4th 1153,
1193-1194). “Further, the instructions ‘need not explicitly label a factor such as
extreme mental or emotional disturbance as mitigating, provided there is no
reasonable likelihood jurors misunderstood the instruction in a way that violated
the defendant’s rights.’ [Citations.]” (People v. Rogers, supra, at p. 897; see also
People v. Blair, supra, 36 Cal.4th at p. 754.) Here, as defendant acknowledges,
the prosecutor never argued that the absence of mitigating evidence under a
145
particular factor was aggravating, or that defendant’s mitigating evidence was
actually aggravating. There is no reasonable likelihood the jury understood the
instruction in an impermissible way.
The trial court is not obligated to delete inapplicable factors from the list of
factors in CALJIC No. 8.85. (People v. Farnam, supra, 28 Cal.4th at pp. 191-192;
People v. Earp (1999) 20 Cal.4th 826, 899.) Further, “[t]he trial court is not
required to instruct on its own motion that the only aggravating factors the jury
may consider are those specified in section 190.3.” (People v. Rogers, supra, 39
Cal.4th at pp. 897-898; People v. Taylor, supra, 26 Cal.4th at p. 1180; see also
People v. Earp, supra, at p. 899.) Defendant makes no showing that he requested
such an instruction. Finally, the “[u]se in the sentencing factors of the phrases
‘extreme mental or emotional disturbance’ (§ 190.3, factor (d), italics added) and
‘extreme duress or . . . substantial domination of another’ (id., factor (g), italics
added) does not inhibit the consideration of mitigating evidence or make the
factors impermissibly vague. [Citations.]” (People v. Anderson (2001) 25 Cal.4th
543, 601; see also People v. Blair, supra, 36 Cal.4th at p. 754 [not unduly
restrictive]; People v. Arias, supra, 13 Cal.4th at pp. 188-189 [not vague].)
Defendant acknowledges that we have rejected his arguments in the past,
but he insists we have not “adequately addressed the underlying reasoning” he
presents. He provides no persuasive reason to revisit these issues.
4. CALJIC No. 8.88
Defendant launches several attacks on the constitutionality of the 1989
revision of CALJIC No. 8.88, a standard jury instruction given in this case that
informs the jury how it is to weigh the aggravating and mitigating evidence. As
defendant acknowledges, we have in the past rejected each of these contentions.
Thus, we have held that the trial court “was not obligated to instruct that the jury
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had to choose life imprisonment without possibility of parole if it found the
mitigating circumstances outweighed the aggravating circumstances.” (People v.
Rogers, supra, 39 Cal.4th at p. 900 [discussing former CALJIC No. 8.84.2]; see
People v. Hughes, supra, 27 Cal.4th at p. 405; People v. Duncan (1991) 53 Cal.3d
955, 978-979.) Further, “[t]he trial court was not required to tell the jury it had
discretion to impose the punishment of life imprisonment without possibility of
parole even in the absence of any mitigating factors.” (People v. Rogers, supra, at
p. 899; see People v. Taylor, supra, 26 Cal.4th at p. 1181.)
The trial court instructed the jurors under CALJIC No. 8.88 that “[t]o return
a judgment of death, each of you must be persuaded that the aggravating
circumstances are so substantial in comparison with the mitigating circumstances
that [they] warrant[] death instead of life without parole.” We have held, contrary
to defendant’s argument, that the phrase “so substantial” is not unconstitutionally
vague in violation of the federal Constitution’s Eighth Amendment. (People v.
Rogers, supra, 39 Cal.4th at p. 900; People v. Boyette, supra, 29 Cal.4th at
p. 465.) Also, the instruction is not unconstitutional for not stating that the central
determination is whether the death penalty is “appropriate.” (People v. Rogers,
supra, at p. 900; People v. Breaux (1991) 1 Cal.4th 281, 315-316; see also People
v. Boyette, supra, at p. 465.)
Further, there is no constitutional requirement that the trial court instruct
the jury that it must find beyond a reasonable doubt that aggravating
circumstances exist, that the aggravating circumstances outweigh the mitigating
circumstances, or that death is the appropriate penalty. (People v. Boyette, supra,
29 Cal.4th at p. 465; People v. Farnam, supra, 28 Cal.4th at p. 192.) “Indeed, the
trial court need not and should not instruct the jury as to any burden of proof or
persuasion at the penalty phase.” (People v. Blair, supra, 36 Cal.4th at p. 753; see
also People v. Boyette, supra, at p. 465.) “The Eighth and Fourteenth
147
Amendments do not require that a jury unanimously find the existence of
aggravating factors or that it make written findings regarding aggravating factors.”
(People v. Blair, supra, at p. 753; see People v. Davis, supra, 36 Cal.4th at p. 571.)
Nor is the jury required to provide a written statement of reasons for its penalty
decision. (People v. Boyette, supra, at p. 465.) The recent decisions of the United
States Supreme Court interpreting the Sixth Amendment’s jury trial guarantee
(Cunningham v. California, supra, 549 U.S. ___ [127 S.Ct. 856]; United States v.
Booker, supra, 543 U.S. 220; Blakely v. Washington, supra, 542 U.S. 296; Ring v.
Arizona, supra, 536 U.S. 584; Apprendi v. New Jersey, supra, 530 U.S. 466) do
not compel a different result. (See People v. Prince, supra, 40 Cal.4th at
pp. 1297-1298; People v. Davis, supra, at p. 572.)
We also have concluded, contrary to defendant’s argument, that “[t]he trial
court need not instruct that the beyond-a-reasonable-doubt standard and the
requirement of jury unanimity do not apply to mitigating factors.” (People v.
Rogers, supra, 39 Cal.4th at p. 897; People v. Breaux, supra, 1 Cal.4th at pp. 314-
315.) Finally, the trial court need not instruct the jury that life imprisonment
without possibility of parole is presumed to be the appropriate penalty unless the
prosecution proves to the contrary. (See People v. Arias, supra, 13 Cal.4th at
p. 190.) We decline defendant’s invitation to revisit these holdings.
5. Absence of instructions on evaluation of evidence
At the conclusion of the penalty phase, the trial court instructed the jury
using the 1989 version of CALJIC No. 8.84.01 in pertinent part as follows: “You
will now be instructed as to all of the law that applies to the penalty phase of this
trial. [¶] You must determine what the facts are from the evidence received
during the entire trial unless you are instructed otherwise. You must accept and
follow the law that I shall state to you. Disregard all other instructions given to
148
you in other phases of this trial.” (Italics added.) The trial court also instructed
the jury, as pertinent here, in the language of CALJIC No. 8.84, the introductory
penalty phase instruction, No. 8.85, the list of aggravating and mitigating factors
for the jury’s consideration, No. 8.87, requiring proof of other criminal activity
beyond a reasonable doubt, and No. 8.88, the penalty phase concluding
instruction. Contrary to the recommendation in the Use Note to CALJIC No.
8.84.1, however, the trial court did not reinstruct the jury with applicable
instructions regarding the evaluation of evidence. The omitted instructions
included several that we have previously held to be required in all criminal cases,
including CALJIC Nos. 2.20 (credibility of witnesses), 2.22 (conflicting
testimony), 2.80 (expert testimony), 2.90 (presumption of innocence and
reasonable doubt), and 3.11 and 3.12 (accomplice corroboration). (See People v.
Carter (2003) 30 Cal.4th 1166, 1219.) Defendant asserts that the failure to
reinstruct the jury on these general principles violated state law and his rights
under the Eighth and Fourteenth Amendments to the United States Constitution
and article I, sections 7, 15, and 17 of the California Constitution.
The trial court erred. Normally, a trial court must instruct the jury on
general principles of law that are closely and openly connected with the facts and
necessary for the jury’s understanding of the case, even absent a request from the
defendant. (People v. Carter, supra, 30 Cal.4th at p. 1219.) Thus, if a trial court
instructs the jury at the penalty phase not to refer to instructions given at the guilt
phase, it later must provide the jury with those instructions applicable to the
evaluation of evidence at the penalty phase. (People v. Moon, supra, 37 Cal.4th at
p. 37.) Here, however, the trial court’s failure to do so was harmless under either
the state “reasonable possibility” standard for penalty phase error (People v.
Brown, supra, 46 Cal.3d at pp. 446-448), or the “harmless beyond a reasonable
doubt” standard for federal constitutional error (Chapman v. California, supra,
149
386 U.S. at p. 24). (People v. Carter, supra, 30 Cal.4th at pp. 1221-1222; see also
People v. Moon, supra, 37 Cal.4th at pp. 37-39.)
Defendant speculates that in the absence of the omitted instructions, and in
light of the trial court’s instruction to disregard the guilt phase instructions, the
jurors logically could have felt that they could consider the trial evidence “in
whatever fashion” and “for whatever purpose” they desired, and that they were
“free to make a standardless assessment” of the evidence in determining
defendant’s penalty. Unlike defendant, “we see no reason to assume” (People v.
Carter, supra, 30 Cal.4th at p. 1221) that the jurors would have felt free to
evaluate the penalty phase evidence in a vacuum, rather than carefully and
deliberately, as they apparently had evaluated the guilt phase evidence. Nothing in
the closing arguments of the parties suggested that the jurors were free to make a
standardless assessment of the evidence. Nor did the jurors ask any questions or
request clarification as to how to assess any of the penalty phase evidence. (Ibid.)
In the absence of some specific indication of prejudice arising from the record,
defendant “does no more than speculate” (ibid.) that the absence of the
instructions prejudiced him.
Defendant complains that the jurors were given no standards to judge the
credibility of prosecution witness Raychel Sarabia, whose testimony was the only
evidence linking defendant to three of the 1989 robbery offenses offered as facts
in aggravation. Defendant contends that we must presume the jurors did not
determine whether Sarabia was an accomplice to the crimes about which she
testified and did not determine whether her testimony was corroborated. Even
assuming the jurors acted as defendant speculates, he was not prejudiced.
Whether defendant had participated in the three 1989 robbery offenses was not in
dispute. Sarabia’s testimony was uncontradicted, and in closing argument
defendant’s counsel did not dispute defendant’s involvement in those robbery
150
offenses or even mention the prior crimes evidence at all. Because defendant’s
involvement was not disputed, the lack of jury instructions regarding evaluation of
Sarabia’s testimony was inconsequential.
Further, although the trial court omitted the instruction defining reasonable
doubt, CALJIC No. 2.90, the jury was instructed that before it could consider
defendant’s alleged prior criminal activity as aggravating, it had to find beyond a
reasonable doubt that defendant had in fact engaged in that activity. There is no
reasonable possibility the jury would have believed the reasonable doubt standard
it was required to apply at the penalty phase was any different than the standard it
had just applied at the guilt phase, under which it had found several codefendants
not guilty on certain charges. (People v. Chatman, supra, 38 Cal.4th at p. 408; see
also People v. Rogers, supra, 39 Cal.4th at p. 905.) In light of the voluminous
aggravating evidence, including the circumstances of the offenses, defendant’s
callous attitude as displayed in statements to defense expert witness Dr. Crinella
and others, and defendant’s possession of a weapon in jail, we conclude there is no
reasonable possibility that the trial court’s failure to reinstruct the jury on general
principles relating to the evaluation of the evidence affected the penalty verdict,
and the error was harmless beyond a reasonable doubt.30
30
For the first time in the reply brief, defendant asserts his claim encompasses
the trial court’s failure to reinstruct the jury on its own motion under CALJIC Nos.
17.30 through 17.50, on jurors’ duties and concluding principles. Generally, a
contention may not be raised for the first time in the reply brief. (People v. Peevy
(1998) 17 Cal.4th 1184, 1206.) In any event, the contention lacks merit. The
identified instructions are not among those required by the Use Note to CALJIC
No. 8.84.1, and defendant points to no case holding that such instructions are
required on the trial court’s own motion at the penalty phase. Even assuming
error, no prejudice is conceivable.
151
6. Failure to define life imprisonment without possibility of parole
The trial court instructed the jury in the language of CALJIC No. 8.84 in
pertinent part as follows: “It is the law of this state that the penalty for a defendant
found guilty of murder of the first degree shall be death or confinement in the state
prison for life without possibility of parole in any case in which the special
circumstances alleged in this case have been specially found to be true. [¶] Under
the law of this state, you must now determine which of said penalties shall be
imposed on each defendant.” Defendant asserts that the instruction was deficient
because it failed to describe or define the term “confinement in the state prison for
life without possibility of parole.” Although defendant acknowledges that we
have rejected such claims in the past (e.g., People v. Gordon (1990) 50 Cal.3d
1223, 1277; People v. Thompson (1988) 45 Cal.3d 86, 130-131), he argues that a
fairly recent trio of decisions from the United States Supreme Court (Kelly v.
South Carolina (2002) 534 U.S. 246; Shafer v. South Carolina (2001) 532 U.S.
36; Simmons v. South Carolina (1994) 512 U.S. 154, 168-169) undermine our past
holdings. We have concluded otherwise. (People v. Prieto, supra, 30 Cal.4th at
pp. 269-271; see also People v. Snow (2003) 30 Cal.4th 43, 123-124; People v.
Smithey (1999) 20 Cal.4th 936, 1009.) We see no reason to revisit this issue.
7. Cumulative
error
Defendant contends that cumulative guilt and penalty phase errors rendered
his trial fundamentally unfair in violation of his Fourteenth Amendment right to
due process of law, requiring reversal of the guilt and penalty judgments. (See
People v. Davis, supra, 36 Cal.4th at pp. 572-573.) As to the guilt phase, we have
held that even if the admission of codefendant Huber’s redacted statements at the
joint trial was erroneous, any assumed error does not require reversal of any of
defendant’s convictions or any special circumstance not otherwise vacated. We
reverse defendant’s six convictions for simple kidnapping. The only other guilt
152
phase errors pertain to the erroneous admission of the alleged gang drawings and
Deputy McLean’s testimony that there were “ex-cons” in apartment E. We
concluded earlier that these two evidentiary errors were harmless singly and in
combination. Considering all of the guilt phase errors and assumed errors
together, we conclude their cumulative effect does not warrant reversal of any
other part of the judgment of guilt.
For the reasons given earlier, we are vacating the lying-in-wait special
circumstances attendant to the Avina, Sams, Nisbet, and Denogean murders. We
have concluded, however, that the reversals of the various counts and the vacation
of the special circumstances, even in combination, do not require reversal of the
penalty judgment. We further have concluded it was error to admit the
photographs of damage to the holding cell wall and the records of defendant’s
California Youth Authority confinement, but that these evidentiary errors in
combination were harmless. Finally, we have concluded it was error, though
harmless, to fail to reinstruct the jury on general evidentiary principles at the
penalty phase.
We find no reasonable possibility that any of these errors affected the
ultimate penalty judgment, and we conclude that the errors in combination were
harmless beyond a reasonable doubt. The evidence at trial showed defendant to be
a merciless repeat robber, kidnapper, and murderer whose crime spree ended only
because he was caught. The jury could have considered all of the facts and
circumstances admissible to establish defendant’s guilt of the kidnappings and the
truth of the vacated lying-in-wait special circumstances as aggravating at the
penalty phase. The aggravating evidence included defendant’s possession of a
potentially deadly weapon in jail and his statements to a defense psychologist that
he would kill again. Defendant did not dispute his participation in the five 1989
robbery offenses. The effects of the penalty phase instructional error and the
153
erroneous admission of aggravating evidence pale against the weight of proper,
admissible aggravating evidence. Under these circumstances, the errors, both
singly and in combination, were harmless under any applicable standard and did
not render defendant’s guilt or penalty trial fundamentally unfair. (See People v.
Davis, supra, 36 Cal.4th at pp. 572-573.)
G. Other Issues
1. Constitutionality of 1978 death penalty statute
Defendant asserts that the failure of the 1978 death penalty statute to
provide for intercase proportionality review violates his rights to equal protection
and to be free from cruel and unusual punishments under the Eighth and
Fourteenth Amendments to the United States Constitution. As defendant
recognizes, we have in the past repeatedly rejected these contentions. (E.g.,
People v. Rogers, supra, 39 Cal.4th at p. 894; People v. Cook (2006) 39 Cal.4th
566, 619; see Pulley v. Harris (1984) 465 U.S. 37, 51.) We see no reason to
revisit these holdings.
Defendant further contends that the use of the death penalty “as a regular
form of punishment for substantial numbers of crimes — as opposed to
extraordinary punishment for extraordinary crimes” such as treason — is contrary
to international norms of human decency as reflected in the laws of the nations of
Western Europe and therefore violates the cruel and unusual punishments clause
of the Eighth Amendment to the United States Constitution. We have rejected this
claim as well. (People v. Cook, supra, 39 Cal.4th at p. 619; People v. Blair, supra,
36 Cal.4th at pp. 754-755.)
2. Sentencing on noncapital offenses
Count 27 of the indictment charged defendant with conspiracy “to commit
the crimes of MURDER, ROBBERY, KIDNAPPING FOR ROBBERY,
154
KIDNAPPING and RECEIVING STOLEN PROPERTY.” The jury found
defendant guilty of conspiracy as charged in count 27. Despite defendant’s having
been charged with and convicted of only a single conspiracy count, the trial court
sentenced defendant for five separate conspiracies to commit the five separate
crimes listed in the indictment.
Respondent concedes that this was error and that only a single conspiracy
sentence is proper. Respondent also concedes that, under section 654, defendant
may not be punished for both the underlying crimes and the conspiracy, because
there was no showing that the object of the conspiracy was any broader than
commission of the underlying crimes. (In re Romano (1966) 64 Cal.2d 826, 828-
829; In re Cruz (1966) 64 Cal.2d 178, 180-181; People v. Ramirez (1987) 189
Cal.App.3d 603, 615-617.) Accordingly, we will modify the judgment to reflect a
single sentence for conspiracy and order that sentence stayed.
3. International
law
Defendant asserts that we must vacate his death sentence because capital
punishment procedures in this state violate international treaties and fundamental
precepts of human rights. Specifically, defendant argues that his death sentence
violates provisions of the International Covenant on Civil and Political Rights that
prohibit cruel and degrading punishment and the arbitrary deprivation of life. As
we have recently explained, defendant’s “contention overlooks the fact that ‘when
the United States ratified the treaty, it specially reserved the right to impose the
death penalty on any person, except a pregnant woman, duly convicted under laws
permitting the imposition of capital punishment.’ [Citations.]” (People v. Cook,
supra, 39 Cal.4th at p. 619.)
Moreover, “international law does not bar imposing a death sentence that
was rendered in accord with state and federal constitutional and statutory
155
requirements. [Citations.]” (People v. Cook, supra, 39 Cal.4th at p. 620; see also
People v. Blair, supra, 36 Cal.4th at p. 755.) Here, where we have found
prejudicial error under state or federal constitutional or statutory law, we have
reversed or modified the judgment accordingly. Defendant’s international law
claim therefore warrants no further discussion.
III. DISPOSITION
For the foregoing reasons, we (1) vacate the lying-in-wait special
circumstances as to murder victims Avina, Sams, Nisbet, and Denogean; (2)
reverse defendant’s six convictions for simple kidnapping (counts 7, 12, 13, 17,
21, and 25); (3) modify the judgment to reflect a single sentence for conspiracy
(count 27); and (4) order the sentences for the conspiracy conviction in count 27
and for the robbery convictions in counts 5, 8, 9, 15, 19, and 23 stayed. In all
other respects, we affirm the judgment, including the sentence of death.
KENNARD,
J.
WE CONCUR:
GEORGE, C. J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.
156
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Lewis
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S031603
Date Filed: April 28, 2008
__________________________________________________________________________________
Court: Superior
County: Los Angeles
Judge: Clarence A. Stromwall
__________________________________________________________________________________
Attorneys for Appellant:
Lynne S. Coffin and Michael J. Hersek, State Public Defenders, under appointment by the Supreme Court,
and Kathleen M. Scheidel, Assistant State Public Defender, for Defendant and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette,
Chief Assistant Attorneys General, Pamela C. Hamanka, Assistant Attorney General, Keith H. Borjon, John
R. Gorey, Sharlene A. Honnaka and Deborah J. Chuang, Deputy Attorneys General, for Plaintiff and
Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Kathleen M. Scheidel
Assistant State Public Defender
221 Main Street, 10th Floor
San Francisco, CA 94105
(415) 904-5600
Deborah J. Chuang
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-2392
Automatic appeal from a judgment of death.
Opinion Information
| Date: | Citation: | Docket Number: | Category: | Status: | Cross Referenced Cases: |
| Mon, 04/28/2008 | 43 Cal. 4th 415, 181 P.3d 947, 75 Cal. Rptr. 3d 588 | S031603 | Automatic Appeal | closed; remittitur issued | LEWIS (JOHN) ON H.C. (S139017) |
Parties
| 1 | The People (Respondent) Represented by Attorney General - Los Angeles Office Deborah J. Chuang, Deputy Attorney General 300 S. Spring Street, 5th Floor Los Angeles, CA |
| 2 | Lewis, John Irving (Appellant) San Quentin State Prison Represented by Habeas Corpus Resource Center Jean R. Sternberg 303 Second Street, Suite 400 South San Francisco, CA |
| 3 | Lewis, John Irving (Appellant) San Quentin State Prison Represented by Office Of The State Public Defender-Sf Kathleen M. Scheidel, Deputy State Public Defender 221 Main Street, 10th Floor San Francisco, CA |
| Disposition | |
| Apr 28 2008 | Opinion: Conviction aff., special circs reversed |
| Dockets | |
| Mar 3 1993 | Judgment of death |
| Mar 11 1993 | Filed certified copy of Judgment of Death Rendered 3-3-93. |
| Apr 27 1998 | Order appointing State Public Defender filed Upon request of appellant for appointment of counsel, the State Public Defender is hereby appointed to represent appellant on his automatic appeal now pending in this court. |
| May 14 1998 | Application for Extension of Time filed By Applt to request correction of the Record. |
| May 19 1998 | Extension of Time application Granted To 7-20-98 To request Record correction |
| Jul 15 1998 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Jul 17 1998 | Extension of Time application Granted To Applt To 9-18-98 To request Corr. of Record. |
| Sep 15 1998 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Sep 22 1998 | Extension of Time application Granted To 11-17-98 To request Record correction |
| Nov 12 1998 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Nov 16 1998 | Extension of Time application Granted To Applt To 1-19-99 To request Corr. of Record. |
| Jan 13 1999 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Jan 14 1999 | Extension of Time application Granted To 3-22-99 To request Record correction |
| Mar 17 1999 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Mar 18 1999 | Order filed appointing H.C. Resource Center Upon request of appellant for appointment of counsel, the Habeas Corpus Resource Center is hereby appointed to represent appellant John Irving Lewis for habeas corpus/executive clemency proceedings related to the above automatic appeal now pending in this court. |
| Mar 23 1999 | Extension of Time application Granted To 5-21-99 To request Record correction |
| May 17 1999 | Application for Extension of Time filed To request Record correction |
| May 20 1999 | Extension of Time application Granted To 7-20-99 To request Record correction |
| Jul 19 1999 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Jul 21 1999 | Extension of Time application Granted To 9-20-99 To request Record correction |
| Sep 20 1999 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Sep 22 1999 | Extension of Time application Granted To 11/19/99 To Applt To request Corr. of the Record. |
| Nov 18 1999 | Application for Extension of Time filed By Applt to request Corr. of the Record. |
| Nov 30 1999 | Extension of Time application Granted To 1/18/2000 To Applt To request Corr. of the Record. no further Extensions of time Are Contemplated. |
| Jan 11 2000 | Application for Extension of Time filed By Applt to request Corr. of the Record. |
| Jan 13 2000 | Extension of Time application Granted To 3/20/2000 To Applt To request Corr. of the Record. no further Extensions of time will be Granted. |
| Mar 17 2000 | Received copy of appellant's record correction motion Applt's motion to correct, augment and settle the record on appeal (90 pp.) |
| Jul 10 2000 | Counsel's status report received (confidential) from HCRC. |
| Jul 12 2000 | Counsel's status report received (confidential) from State P.D. |
| Sep 8 2000 | Counsel's status report received (confidential) from HCRC. |
| Sep 14 2000 | Counsel's status report received (confidential) from State P.D. |
| Nov 3 2000 | Counsel's status report received (confidential) from HCRC. |
| Nov 14 2000 | Counsel's status report received (confidential) from State P.D. |
| Nov 20 2000 | Received: Applt's amended mtn to correct, augment and settle the record on appeal (30 pages) |
| Jan 5 2001 | Counsel's status report received (confidential) from HCRC. |
| Jan 16 2001 | Counsel's status report received (confidential) from State P.D. |
| Mar 6 2001 | Counsel's status report received (confidential) from HCRC. |
| Mar 13 2001 | Counsel's status report received (confidential) from State P.D. |
| May 7 2001 | Counsel's status report received (confidential) from HCRC. |
| May 10 2001 | Received: from A.G. Response to Appellant's amemded Motion to Correct, Augment, & Settle the record, filed in Superior Court |
| May 11 2001 | Counsel's status report received (confidential) from SPD. |
| Jul 6 2001 | Counsel's status report received (confidential) from HCRC. |
| Jul 11 2001 | Counsel's status report received (confidential) from State P.D. |
| Jul 11 2001 | Counsel's status report received (confidential) from HCRC. |
| Aug 7 2001 | Motion filed Respondent's Motion to Vacate Superior Court's Orders for Proposed Settled Statement, Hearing, & Augmentation of the Record. |
| Aug 15 2001 | Filed: Supplemental declaration of service of motion to vacate superior court's orders for proposed settled statement, hearing and augmentation of the record. |
| Sep 6 2001 | Counsel's status report received (confidential) from HCRC. |
| Sep 12 2001 | Order filed: The Attorney General's "motion to vacate superior court's orders for proposed settled statement, hearing, and augmentation of the record," filed August 7, 2001, is granted to the extent that the superior court is directed to vacate its order for a proposed settled statement and hearing as to nonverbal gestures and communications. The motion is otherwise denied. |
| Sep 14 2001 | Counsel's status report received (confidential) from State P.D. |
| Nov 6 2001 | Counsel's status report received (confidential) from HCRC. |
| Nov 15 2001 | Counsel's status report received (confidential) from State P.D. |
| Dec 12 2001 | Counsel's status report received (confidential) (supplemental) from HCRC. |
| Jan 7 2002 | Counsel's status report received (confidential) from HCRC. |
| Jan 11 2002 | Counsel's status report received (confidential) from State P.D. |
| Mar 1 2002 | Counsel's status report received (confidential) from HCRC. |
| Mar 12 2002 | Counsel's status report received (confidential) from State P.D. |
| May 1 2002 | Counsel's status report received (confidential) from HCRC. |
| May 10 2002 | Counsel's status report received (confidential) from State P.D. |
| May 29 2002 | Record on appeal filed C-55 (13475 pp.) and R-65 (8560 pp.) including material under seal. Clerk's transcript contains 10118 pp. of juror questionnaires. |
| May 29 2002 | Appellant's opening brief letter sent, due: July 8, 2002. |
| Jul 1 2002 | Counsel's status report received (confidential) from HCRC. |
| Jul 5 2002 | Counsel's status report received (confidential) from State P.D. |
| Jul 5 2002 | Request for extension of time filed To file AOB. (1st request) |
| Jul 12 2002 | Extension of time granted To 9/3/2002 to file AOB. The court anticipates that after that date, four extensions totaling 240 additonal days will be granted. Counsel is orderd to inform her assisting assisting attorney or entity, if any, and any assisting attorney or entity of any seprate counsel of record of this schedule, and to take all steps necessary to meet it. |
| Aug 30 2002 | Request for extension of time filed To file appellant's opening brief. (2nd request) |
| Aug 30 2002 | Counsel's status report received (confidential) from State P.D. |
| Sep 3 2002 | Counsel's status report received (confidential) from HCRC. |
| Sep 6 2002 | Extension of time granted To 11/4/2002 to file appellant's opening brief. The court anticipates that after that date, only three further extensions totaling 180 additional days will be gratned. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate cousnel of record, of this schedule, and to take all steps necessary to meet it. |
| Oct 28 2002 | Counsel's status report received (confidential) from HCRC. |
| Oct 31 2002 | Counsel's status report received (confidential) from State P.D. |
| Oct 31 2002 | Request for extension of time filed To file appellant's opening brief. (3rd rerquest) |
| Nov 4 2002 | Extension of time granted To 1/3/2003 to file appellant's opening brief. Tlhe court anticipates that after that date, only two further extensions totaling 120 additional days will be granted Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it. |
| Dec 26 2002 | Counsel's status report received (confidential) from State P.D. |
| Dec 27 2002 | Request for extension of time filed to file appellant's opening brief. (4th request) |
| Dec 30 2002 | Counsel's status report received (confidential) from HCRC. |
| Jan 6 2003 | Extension of time granted To 3/4/2003 to file appellant's opening brief. The court anticipates that after that date, only one further extension totaling 60 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this sched ule, and to take all steps necessary to meet it. |
| Feb 25 2003 | Counsel's status report received (confidential) from State P.D. |
| Feb 25 2003 | Request for extension of time filed to file appellant's opening brief. (5th request) |
| Feb 26 2003 | Counsel's status report received (confidential) from HCRC. |
| Feb 28 2003 | Extension of time granted to 5/5/2003 to file appellant's opening brief. The court anticipates that after that date, only two further extensions totaling 120 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it. |
| Apr 28 2003 | Counsel's status report received (confidential) from HCRC. |
| Apr 28 2003 | Counsel's status report received (confidential) from State P.D. |
| Apr 28 2003 | Request for extension of time filed to file appellant's opening brief. (6th request) |
| Apr 30 2003 | Extension of time granted to 7/1/2003 to file appellant's opening brief. The court anticipates that after that date, only two further extensions totaling 120 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it. |
| Jun 24 2003 | Counsel's status report received (confidential) from HCRC. |
| Jun 26 2003 | Request for extension of time filed to file appellant's opening brief. (7th request) |
| Jun 27 2003 | Counsel's status report received (confidential) from State P.D. |
| Jul 2 2003 | Extension of time granted to 9/2/2003 to file appellant's opening brief. After that date, only one further extension will be granted. Extension is granted based upon Assistant State Public Defender Kathleen M. Scheidel's representation that she anticipates filing that brief by 10/29/2003. |
| Aug 26 2003 | Request for extension of time filed to file AOB. (8th request) |
| Aug 26 2003 | Counsel's status report received (confidential) from State P.D. |
| Sep 2 2003 | Extension of time granted to 11-3-2003 to file AOB. After that date, no further extension will be granted. Extension granted based upon Asst. SPD Kathleen Scheidel's representation that she anticipates filing the brief by 11-3-2003. |
| Oct 23 2003 | Counsel's status report received (confidential) from HCRC. |
| Nov 3 2003 | Application to file over-length brief filed by appellant to file opening brief. (401 pp. brief submitted under separate cover) |
| Nov 6 2003 | Order filed Appellant's motion to file over-length opening brief is granted. |
| Nov 6 2003 | Appellant's opening brief filed (401 pp) |
| Nov 7 2003 | Received: "Notification of Personal Service," of appellant's opening brief on appellant on 11/5/2003. |
| Nov 25 2003 | Request for extension of time filed to file respondent's brief. [1st request] |
| Dec 4 2003 | Extension of time granted to 2/4/2004 to file respondent's brief. |
| Dec 24 2003 | Counsel's status report received (confidential) from HCRC. |
| Jan 27 2004 | Request for extension of time filed to file respondent's brief. (2nd request) |
| Jan 30 2004 | Extension of time granted to 4-5-2004 to file respondent's brief. |
| Feb 20 2004 | Counsel's status report received (confidential) from HCRC. |
| Feb 24 2004 | Respondent's brief filed (77,568 words - 276 pp.) |
| Mar 8 2004 | Request for extension of time filed to file appellant's reply brief. (1st request) |
| Mar 12 2004 | Extension of time granted to 5/14/2004 to file appellant's reply brief. After that date, only four further extensions totaling about 195 additional days are contemplated. Extension is granted based upon Assistant State Public Defender Kathleen M. Scheidel's representation that she anticipates filing that brief by 12/2004. |
| Apr 23 2004 | Counsel's status report received (confidential) from HCRC. |
| May 11 2004 | Request for extension of time filed to file appellant's reply brief. (2nd request) |
| May 18 2004 | Extension of time granted to 7-13-2004 to file reply brief. After that date, only three further extensions totaling about 135 additional days will be granted. Extension granted based upon Deputy SPD Kathleen Scheidel's representation that she anticipates filing the brief by December 2004. |
| Jun 23 2004 | Counsel's status report received (confidential) from HCRC. |
| Jul 6 2004 | Request for extension of time filed to file appellant's reply brief. (3rd request) |
| Jul 9 2004 | Extension of time granted to 9-13-2004 to file reply brief. After that date, only two further extensions totaling about 75 additional days will be granted. Extension granted based upon Asst. State P.D. Kathleen M. Scheidel's prior representation that she anticipates filing the brief by 12-2004. |
| Aug 18 2004 | Counsel's status report received (confidential) from HCRC. |
| Sep 8 2004 | Request for extension of time filed to file appellant's reply brief. (4th request) |
| Sep 13 2004 | Extension of time granted to 11/12/2004 to file appellant's reply brief. The court anticipates that after that date, only one further extension totaling about 60 additional days will be granted. Counsel is ordered to inform his or her supervising attorney, if any, of this schedule, and to take all steps necessary to meet it. |
| Oct 18 2004 | Counsel's status report received (confidential) from HCRC. |
| Nov 4 2004 | Request for extension of time filed to file appellant's reply brief. (5th request) |
| Nov 10 2004 | Extension of time granted to 1/11/2005 to file appellant's repy brief. After that date, only two further extensions totaling about 105 additional days will be granted. Extension is granted based upon Assistant State Public Defender Kathleen M. Scheidel's representation that she anticipates filing that brief by 4/26/2005. |
| Dec 20 2004 | Counsel's status report received (confidential) from HCRC. |
| Jan 4 2005 | Request for extension of time filed to file reply brief. (6th request) |
| Jan 6 2005 | Filed: Supplemental declaration in support of application for extension of time to file reply brief. |
| Jan 11 2005 | Extension of time granted to 3/14/2005 to file appellant's reply brief. After that date, only one further extension totaling about 45 additional days will be granted. Extension is granted based upon Assistant State Public Defender Kathleen M. Scheidel's representation that she anticipates filing that brif by 4/26/2005. |
| Feb 15 2005 | Counsel's status report received (confidential) from HCRC. |
| Mar 8 2005 | Request for extension of time filed to file appellant's reply brief. (7th request) |
| Mar 14 2005 | Extension of time granted to 5/13/2005 to file appellant's reply brief. Extension is granted based upon Assistant State Public Defender Kathleen M. Scheidel's representation that she anticipates filing that brief by 5/13/2005. After that date, no further extension will be granted. |
| Mar 30 2005 | Motion filed (AA) appellant's motion for permission to file supplemental opening brief. (11 pp. - 2613 word brief submitted under separate cover) |
| Apr 11 2005 | Order filed Petitioner's motion for permission to file supplemental opening brief is granted. Any supplemental respondent's brief is to be served and filed on or before 5/11/2005. |
| Apr 11 2005 | Supplemental brief filed appellant's opening brief. (2613 words; 11 pp.) |
| Apr 20 2005 | Counsel's status report received (confidential) from HCRC. |
| May 2 2005 | Request for extension of time filed to file appellant's reply brief. (8th request) |
| May 2 2005 | Supplemental brief filed respondent's. (3597 words; 14 pp.) |
| May 5 2005 | Extension of time granted to 5/27/2005 to file appellant's reply brief. Extension is granted based upon Assistant State Public Defender Kathleen M. Scheidel's representation that she anticipates filing that brief by 5/27/2005. After that date, no further extension will be granted. |
| May 24 2005 | Appellant's reply brief filed (18,153 words; 68 pp.) |
| Jun 15 2005 | Counsel's status report received (confidential) from HCRC. |
| Aug 12 2005 | Counsel's status report received (confidential) from HCRC. |
| Oct 13 2005 | Counsel's status report received (confidential) from HCRC. |
| Nov 21 2005 | Related habeas corpus petition filed (concurrent) No. S139017 |
| Nov 15 2006 | Exhibit(s) filed (AA) Peo. 17 - Large Map on Board Peo. 24 - (24A-24D) Color six packs on one board Peo. 128, 129, and 139- drawings on cardboard Deft. B (motion to sever) - statement of Eileen Huber |
| Dec 12 2006 | Exhibit(s) lodged Defendant's exhibits C- I |
| Dec 21 2006 | Filed: Motion for leave to file appellant's supplemental opening brief "under seperate cover" was received, 2,607 words; 11 pp.) |
| Dec 29 2006 | Order filed Appellant's "Motion for Leave to File Supplemental Opening Brief" is granted. Any supplemental respondent's brief is to be served and filed on or before January 29, 2007. |
| Dec 29 2006 | Supplemental brief filed by appellant. (2,607 words; 11 pp.) |
| Jan 18 2007 | Request for extension of time filed to file supplemental Respondent's Brief (1st request) |
| Jan 19 2007 | Letter sent to: counsel regarding missing exhibits (People's 128, 129 and 139 from trial; Defense Exhibit B to the motion to sever trials). Within the next 10 days counsel are to (1) determine if they have copies of any of these exhibits in their files, or are able to obtain copies from trial counsel; (2) consult with opposing appellate counsel regarding what they have been able to locate; (3) jointly forward one copy of each exhibit located to this court; and (4) jointly inform the court if they collectively are unable to locate a copy of one or more of these exhibits. |
| Jan 25 2007 | Extension of time granted to April 2, 2007 to file the supplemental respondent's brief. After that date, no further extension is contemplated. Extension is granted based upon Deputy Attorney General Deborah J. Chuang's representation that she anticipates filing that brief by April 2, 2007. |
| Jan 26 2007 | Received: letter from Asst. State P.D. Kathleen Scheidel, dated January 26, 2007, in response to court's letter of January 19, 2007, requesting assistance in reconstructing missing exhibits. Attached to this letter are copies of the exhibits. The parties estimate that the original size of each of People's exhibits 128, 129 and 139 was 8.5" by 11". |
| Feb 8 2007 | Exhibits requested from superior court: Peoples, nos. 1, 7, 15, 52, 248 and 249. |
| Feb 9 2007 | Exhibit(s) lodged People's: 1 (A-J), 7 (A-I), 15 (A-D), 52 (A-D), 248 and 249. |
| Feb 15 2007 | Supplemental brief filed respondent's brief. (4328 words; 17 pp.) |
| Mar 16 2007 | Filed: certificate of word count and supplemental declaration in support of appellant's supplemental reply brief. |
| Mar 16 2007 | Supplemental brief filed Appellant's reply brief. (1,417 words; 7 pp.) |
| Apr 26 2007 | Exhibit(s) lodged Peo. 27 - Chart w/ photos A thru H -and- Peo 28 - Chart w/ photos A thru D. |
| Aug 27 2007 | Change of contact information filed for: applt counsel HCRC. |
| Nov 7 2007 | Oral argument letter sent advising counsel that the the court could schedule this case for argument as early as the January 2008 calendar, to be held the week of January 7, 2008, 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. |
| Jan 3 2008 | Case ordered on calendar to be argued on Wednesday, February 6, 2008, at 1:30 p.m., in Sacramento |
| Jan 11 2008 | Received: appearance sheet from Deputy Attorney General Deborah J. Chuang, indicating 30 minutes for oral argument for respondent. |
| Jan 11 2008 | Filed: appellant's focus issues letter dated January 10, 2008. |
| Jan 15 2008 | Filed: respondent's focus issues letter dated January 11, 2008. |
| Jan 25 2008 | Received: Appellant's list of additional authorities for oral argument. |
| Jan 25 2008 | Filed: Respondent's letter of additional authoirites for oral argument. |
| Feb 6 2008 | Cause argued and submitted |
| Apr 28 2008 | Opinion filed: Conviction affirmed, special circs reversed we (1) vacate the lying-in-wait special circumstances as to the four murder victims; (2) reverse defendant's six convictions for simple kidnapping (counts 7, 12, 13, 17, 21, and 25); (3) modify the judgment to reflect a single sentence for conspiracy (count 27); and (4) order the sentences for conspiracy conviction in count 27 and for the robbery convictions in counts 5, 8, 9, 15, 19, and 23 stayed. In all other respects, we affirm the judgment, including the sentence of death. opinion by Kennard, J. ----- joined by George, C.J., Baxter, Werdegar, Chin, Moreno and Corrigan, JJ. |
| May 13 2008 | Rehearing petition filed by appellant (986 words; 5 pp.) |
| May 16 2008 | Time extended to consider modification or rehearing The time for granting or denying rehearing in the above-entitled case is hereby extended to and including July 25, 2008, or the date upon which rehearing is either granted or denied, whichever occurs first. |
| May 21 2008 | Letter sent to: respondent requesting an answer to appellant's petition for rehearing; answer to be served and filed on or before Thursday, May 29, 2008. |
| May 23 2008 | Exhibit(s) lodged one large chart |
| May 27 2008 | Answer to rehearing petition filed by respondent. (1,355 words; 7 pp.) |
| Jun 2 2008 | Filed: by appellant "reply to answer to petition for rehearing". (904 words; 5 pp.) |
| Jul 9 2008 | Rehearing denied The petition for rehearing is denied. |
| Jul 9 2008 | Remittitur issued (AA) |
| Jul 17 2008 | Received: acknowlegment of receipt of remittitur from trial court. |
| Aug 8 2008 | Note: Exhibit Deft. B...Diagram returned to Superior Court this date. |
| Oct 3 2008 | Received: copy of petition for writ of certiorari sent to U.S.S.C. dated, October 2, 2008. |
| Oct 14 2008 | Received: Letter from U.S.S.C. dated October 7, 2008, advising appellant's petition for writ of certiorari filed October 2, 2008, no. 08-6635. |
| Dec 29 2008 | Note: record shipped to U.S. Supreme Court, pursuant to telephonic request from its Clerk's Office. |
| Jan 2 2009 | Received: receipt from U.S. Supreme Court for the record on appeal. |
| Jan 26 2009 | Certiorari denied by U.S. Supreme Court |
| Feb 27 2009 | Note: record returned from U.S. Supreme Court. |
| Briefs | |
| Nov 6 2003 | Appellant's opening brief filed |
| Feb 24 2004 | Respondent's brief filed |
| May 24 2005 | Appellant's reply brief filed |
