Supreme Court of California Justia
Docket No. S020670
People v. Lewis

Filed 6/24/04


Plaintiff and Respondent,
Los Angeles County
Super. Ct. No. A027897
Defendant and Appellant.

A jury convicted defendant of the first degree murder (Pen. Code, § 187)1
and robbery (§ 211) of Milton Estell. It found true allegations of deadly weapon
use (§ 12022, subd. (b)) and personal use of a firearm (§§ 12022.5, 1203.06) as
well as a special circumstance allegation that the murder was committed during
the commission or attempted commission of a robbery. (§ 190.2, former
subd. (a)(17)(i), now subd. (a)(17)(A).) The jury fixed the punishment at death.
Although finding no other reversible error, this court vacated the judgment of
death because the trial court erroneously considered a probation report in ruling on
defendant’s automatic application to modify the penalty. (§ 190.4, subd. (e); see
People v. Lewis (1990) 50 Cal.3d 262, 286-287 (Lewis I).) On remand, the trial
court denied the application for modification and reinstated the judgment of death.
This appeal is automatic. (Cal. Const., art. VI, § 11; Pen. Code, § 1239.)

All undesignated statutory references are to the Penal Code.

We find no error in the trial court’s denial of the modification application
or any other rulings on remand and affirm the judgment.
Because resolution of the issues raised in this appeal depends solely on the
original trial record, we cite to the factual statement set forth in Lewis I, supra, 50
Cal.3d 262:
Prosecution Case.
“During the first three weeks of October 1983, Milton Estell had been
trying to sell his 1980 Cadillac by parking it in a Long Beach shopping center
affixed with a ‘for sale’ sign. Mr. Estell also advertised the car in a newspaper
classified ad. Mr. Estell’s neighbors, Michael and Allen Washington, knew that
he was selling his car. On Thursday, October 27, 1983, as they were returning
home about 6:30 or 7 p.m., the Washington brothers saw Mr. Estell standing on
the sidewalk in front of his house, looking at the Cadillac, and talking to
defendant.2 The hood of the car was up.
“Jacqueline Estell, the victim’s ex-wife, tried to telephone Mr. Estell
several times between 8 and 10 p.m. on October 27, to make arrangements for him
to have custody of their children for the weekend. She received no answer and
continued trying to call him the next morning between 7 and 7:30. She called his
employer that day (Friday, Oct. 28) and learned that he had not come to work.
After further unsuccessful attempts to reach Mr. Estell, she left the children with a
neighbor of Mr. Estell’s and left for the weekend.

2 Both
brothers were positive of their identification of
defendant; each had picked his photo from a group shown to them separately on
November 2, 1983.

“Officer Laduca of the Long Beach Police Department went to Mr. Estell’s
house about 11 p.m. on October 28 because some neighbors had expressed
concern. Both the front and back doors were locked, so Officer Laduca entered
through an open window. A light was on in a back bedroom, but the room was
empty. The door to the next bedroom was shut. As he opened the door he smelled
a strong odor, which he recognized as the odor of a dead person. There was no
furniture in the room, only some children’s toys. Officer Laduca opened the
sliding doors to a closet and found a Black male, lying on his side, obviously dead.
The Black male was later identified as Mr. Estell. His hands and legs were tied
together with neckties; yellow toilet paper was stuffed in his mouth and he was
gagged with a necktie. There were three stab wounds in his chest and a bullet hole
in his back. Two pillows were near the body; one had a contact bullet hole in it.
Two knives were lying next to the body. The stab wounds were later determined
to have been the cause of death.
“The victim’s wallet was lying near the body; the wallet had numerous
credit cards but no cash. The Cadillac was missing. There were no signs of forced
entry into the house. The front door was locked from the inside with a deadbolt.
The back door was locked with a standard lock, but the deadbolt was not thrown.
Defendant’s palm print was found in the bathroom, on the doorjamb behind the
door, near the toilet paper receptacle containing yellow toilet paper. Eleven other
latent prints were lifted; two prints were the victim’s, and the others were never
compared with those of anyone but the victim and defendant.
“Jacqueline Estell accompanied police officers to the victim’s house on
Monday, October 31, and found a number of things missing: a television and
stand, a camera, a radio, and a cassette player. A TV Guide was lying open to the
date of October 27. The next day she noticed that a gold chain and a ring were
also missing. The ring was later found at the coroner’s office with the victim’s
belongings. Mrs. Estell later identified the missing gold chain as the one that
defendant had worn at the preliminary hearing.
“On November 1, 1983, two Long Beach police officers spotted the
missing Cadillac parked on the street with no one in it. About 35 minutes later,
defendant and a woman entered the car and drove off. The officers stopped the
car, arrested the occupants, and impounded the car. Defendant was searched and
found to have about $400. He gave a false name at the time of his arrest and
“Defendant was taken to the police station and booked. After waiving his
Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436), he was interviewed by
Detective MacLyman. Defendant said that he went to look at the Cadillac on
October 24 at the owner’s residence. He bought it that day—October 24—for
$11,000 cash, which he had carried in a brown paper bag. The owner made out
the bill of sale to defendant’s girlfriend because defendant did not want the car in
his name. Defendant said he had won the money playing blackjack in Las Vegas.
Defendant said the entire transaction took place on the front porch; he never went
in the house.
“Defendant was interviewed again the next day. This time he said he had
won $17,000 in Las Vegas; the day before he had said he had won $11,000. This
time he said he carried the money in a white paper bag; the day before the money
had been in a brown paper bag. When asked about the discrepancies, he said that
Detective MacLyman must have been mistaken. Defendant continued to assert
that he had bought the car on October 24, even when Detective MacLyman told
him that neighbors had seen the car at the victim’s residence on October 27.
“Detective MacLyman found a bill of sale in the Cadillac when he searched
it at the impound lot. He also found a garage door opener in the car that opened
the victim’s garage door. The victim’s signature on the bill of sale was later
determined to be a forgery.
Defense Case.
“Defendant’s father, Robert Lewis, Sr., testified that he had registered
defendant and a girl named Tuti at the Kaialoha Motel on October 24, 1983,
because defendant had no identification. He had written his driver’s license
number and the license plate number of Milton Estell’s Cadillac on the motel
registration card. The manager of the motel testified that she did not remember
the transaction, but she did know that she had written down the date, room
number, and amount of money paid. The customer had filled out the name,
address, car license number, and number of guests.
“Defendant’s sister, Gladys Spillman, testified that the gold chain taken
from defendant looked like the one she had purchased in January 1983 and had
given to defendant.
“Defendant did not testify.” (Lewis I, supra, 50 Cal.3d at pp. 271-274.)
Prosecution Case.
“The only additional evidence introduced by the prosecution was
defendant’s stipulation that he had suffered four prior robbery convictions; two in
1977 and one each in 1972 and 1982.
Defense Case.
“Defendant presented testimony by his sister, Rose Davidson. Miss
Davidson testified that she has one other sister, Gladys Spillman, and an additional
brother, Ellis Williams. Williams was currently in state prison and had been in jail
a couple of other times. Their father had been in prison a number of times, and
their mother had died in 1967. Miss Davidson also testified that she loves
defendant and cares about what happens to him.” (Lewis I, supra, 50 Cal.3d at
p. 278.)
After hearing the penalty phase evidence, the jury returned a verdict of
death. The trial court denied the automatic application for modification of the
verdict (§ 190.4, subd. (e)) and imposed sentence.
On appeal, this court found no reversible error except with respect to the
ruling on the application for modification:
“Defendant contends the case must be remanded for a new hearing on the
application for modification of verdict because the court considered matters from
the probation report that had not been presented to the jury. After hearing
argument from both sides the court ruled as follows: ‘Pursuant to Penal Code
section 190.4, subsection (e), I have made an independent review of the evidence.
I have taken into account and been guided by the aggravating and mitigating
“ ‘I find that the jury’s findings and verdict are according to the law and the
“ ‘I find that the aggravating circumstances outweigh the mitigating
circumstances. My reasons for this are as follows: That this 32-year-old
defendant has shown himself to be a hostile and violent man.
“ ‘He has been either incarcerated or on parole most of his adult life. And
even before he reached adulthood he had such a severe problem in the community
that Youth Authority confinement was needed. The records indicate that once
before he was responsible for the death of another human being.
“ ‘The victim was not the defendant’s enemy. He was no threat to him, but
he was, rather a citizen attempting to sell a car. The community has not only
suffered serious loss by reason of this poor man’s death, but his children have
likewise suffered a great loss. Perhaps the greatest loss of all.

“ ‘My perusal of the record does not reveal any significant or substantial
mitigating circumstances that could possibly outweigh the aggravation involved in
this case. In my view the death penalty, as recommended by the jury is
“ ‘This is a case in which the victim was brutally killed in execution style in
his own home during a robbery while the victim was unable to resist, and for these
reasons the motion for new trial is denied.
“ ‘. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“ ‘And so that the record is clear, I decline to modify the verdict of death
heretofore decreed by the jury.’
“Although the court was required to read the probation report before
sentencing defendant on the robbery conviction (§ 1203, subd. (b)), it should not
have read and considered the probation report in ruling on the application for
modification of verdict. Under section 190.4, subdivision (e), the court is directed
to review the evidence presented to the jury; a probation report is not presented to
the jury. (See People v. Williams (1988) 45 Cal.3d 1268, 1329.) In capital cases
where the defendant has been convicted of other offenses requiring a probation
report, the preferable procedure is to defer reading the probation report until after
ruling on the automatic application for modification of verdict. This will ensure
that the probation report does not influence the ruling on the section 190.4,
subdivision (e) motion and hence will avoid the issue raised here. The same is
true of victim impact statements which are permitted by section 1191.1. Such
statements are not to be considered by the court in ruling on the section 190.4,
subdivision (e) motion.
People v. Williams, supra, 45 Cal.3d at pages 1329-1330, the court had
read the probation report before ruling on the application for modification of
verdict, but we assumed that it was not influenced by the report in ruling on the
application. We further noted that even if the report had been considered, it did
not work any prejudice to defendant. The same is not true in this case. Here, by
contrast, the probation report contained prejudicial information about defendant’s
juvenile record and prior involvement in a homicide—information that would not
otherwise have been known. Moreover, the record reveals that the court referred
to this information in stating its reasons for denial of the application.
“Accordingly, we conclude that the matter must be remanded for a new
hearing on the application for modification of verdict. Preferably, the trial judge,
Judge Elsworth Beam, should rehear the application on the basis of the record
certified to this court. If, however, he is unavailable, the matter may be heard
before another judge of the same court. (See People v. Sheldon (1989) 48 Cal.3d
935, 962-963; People v. Brown (1988) 45 Cal.3d 1247, 1264, fn. 7.)” (Lewis I,
supra, 50 Cal.3d at pp. 286-287.)
On remand, defendant filed a motion to disqualify Judge Beam from
rehearing the application for modification. (See Code Civ. Proc., § 170.1,
subd. (a)(5).) Judge Beam denied any basis for disqualification, but voluntarily
withdrew from further proceedings. (See id., § 170.3, subd. (c)(2).) Judge
Richard Charvat was appointed as his replacement.
In addition to renewing his application for modification of the verdict,
defendant brought various motions, generally seeking to enlarge the scope of the
remand proceedings and the modification hearing. Judge Charvat denied the
motions as in excess of this court’s remand directive. After stating his reasons, he
then denied the application for modification of the penalty verdict and pronounced
A. Request that the Trial Court Hear Testimony
At the hearing on the modification application, the prosecution and defense
submitted by stipulation “the record of the trial, guilt and penalty phases, absent
certain objections and other material which should not be relevant to the
consideration today.” Prior to that time, the defendant had sought to present the
guilt and penalty phase evidence to Judge Charvat through live testimony on the
ground that he had not personally observed the witnesses testify and therefore
would be unable to evaluate their credibility in reweighing the evidence. Judge
Charvat declined to allow such testimony in light of the directive in Lewis I that he
“should rehear the application on the basis of the record certified to this court.”
(Lewis I, supra, 50 Cal.3d at p. 287.)
We find no error in this ruling. Apart from the express terms of our opinion
in Lewis I, both the statutory language and this court’s construction of section
190.4, subdivision (e), foreclose defendant’s argument that he is entitled to present
live testimony under these circumstances. The statute states in part that in ruling
on the modification application, the judge “shall review the evidence” and “shall
make a determination as to whether the jury’s findings and verdicts that the
aggravating circumstances outweigh the mitigating circumstances are contrary to
law or the evidence presented.” (§ 190.4, subd. (e).) By definition, a
re-presentation of evidence is not “the evidence presented.” Even if witnesses
could be confined to their previous testimony, it would be impossible to recreate
precisely what the jurors heard and thus the evidence on which they based their
penalty verdict.
In construing section 190.4, subdivision (e), this court has repeatedly
emphasized that a modification application hearing “is limited to review of the
evidence that was before the jury . . . .” (People v. Brown (1993) 6 Cal.4th 322,
336; see People v. Sakarias (2000) 22 Cal.4th 596, 648; People v. Beeler (1995) 9
Cal.4th 953, 1005-1006; People v. Edwards (1991) 54 Cal.3d 787, 847.) Any
attempt to recreate the evidence would conflict with this mandate. While on
occasion we have stated that “in determining whether in his or her independent
judgment the weight of the evidence supported the verdict, the judge was required
to assess the credibility of the witnesses, determine the probative force of the
testimony, and weigh the evidence” (People v. Rodriguez (1986) 42 Cal.3d 730,
793), we did not intend by such language to suggest that in every case in which the
original trial judge is replaced prior to a modification application, the defendant is
in effect automatically entitled to a new trial because the replacement judge’s
ability to assess the credibility of witnesses is necessarily limited.3 (See People
v. Espinoza (1992) 3 Cal.4th 806, 830.)
Defendant contends that regardless of statutory language or judicial
interpretation, this conclusion denies him due process and a reliable penalty
determination in violation of the state and federal Constitutions. We found similar
arguments unpersuasive in People v. Espinoza, supra, 3 Cal.4th 806, where a
second trial judge was substituted midway through the guilt phase evidence. (Id.
at pp. 827-828.) “Seizing on” the above quoted passage from People
v. Rodriguez, supra, 42 Cal.3d at page 793, the defendant “attempt[ed] to read into
the statutory provision [of section 190.4, subdivision (e)] a requirement that, in
ruling on a defendant’s application for modification of the jury’s verdict of death
rendered at the penalty phase, the requisite assessment can be made only by a

At the very least such a categorical rule would lend itself to abuse by
encouraging defendants to seek recusal of the original trial judge on remand for
rehearing of the modification application.

judge who has personally heard the testimony presented at the guilt phase.”
(Espinoza, at p. 830.)
In finding no such requirement, the court explained, “A judge ruling on an
application for modification of a jury verdict of death does not make an
independent and de novo penalty determination, but rather independently reweighs
the aggravating and mitigating evidence to decide whether ‘in the judge’s
independent judgment, the weight of the evidence supports the jury verdict.’
[Citations.] As we have acknowledged in cases that were reversed and remanded
for reconsideration of an application for modification of a death verdict, it is not
always possible that the judge who conducted the penalty phase in a capital case
be the one to reconsider the application on remand; in that event, ‘the matter may
be heard before another judge of the same court.’ [Citations.]” (People
v. Espinoza, supra, 3 Cal.4th at p. 830.) Noting that the replacement judge had
“reviewed the transcripts of the trial proceedings before his substitution and
presided over the remainder of the guilt phase and the entire penalty phase,” the
court rejected the contention that he could not fully exercise his independent
judgment in ruling on the modification application. (Ibid.)
We reach the same conclusion under the circumstances of this case, in
which Judge Charvat fully reviewed the transcripts of both the guilt and penalty
phases. As the court implied in People v. Espinoza, supra, 3 Cal.4th 806, when
the original trial judge is unavailable, necessity requires the replacement judge to
evaluate the credibility of the witnesses as best he or she can from the written
record. We find no constitutional obligation to provide more. Accordingly, Judge
Charvat did not err in refusing to hear live testimony before ruling on the
modification application.
For the same reasons, we find no constitutional defect generally in a
procedure that allows a judge who did not hear the actual trial testimony to rule on
the modification application. Although this court and the United States Supreme
Court have cited the provisions of section 190.4, subdivision (e), as an additional
safeguard against arbitrary and capricious imposition of the death penalty in
California (see, e.g., People v. Frierson (1979) 25 Cal.3d 142, 179; Pulley v.
Harris (1984) 465 U.S. 37, 51-53), we find no constitutional basis for a
categorical rule such as defendant advocates. As this case and People v. Espinoza,
supra, 3 Cal.4th 806, illustrate, the particular circumstances may permit a
reviewing court to determine that a replacement judge’s consideration of the trial
transcript did not deny the defendant due process or undermine the reliability of
the penalty verdict.
B. Ruling on the Modification Application
In addition to the foregoing question of procedure, defendant challenges the
modification ruling in substance, contending the court erroneously failed to
consider lingering doubt and improperly relied on aggravating evidence not
supported by the record. Based on our independent review of the record (see
People v. Ashmus (1991) 54 Cal.3d 932, 1006-1007), we find no error in the
court’s determination that the jury’s penalty verdict was not contrary to the law or
the evidence presented.
Regarding lingering doubt, the court indicated it had reviewed the trial
transcript, and then recounted the salient circumstances of the killing as they
related to aggravation. It next stated, “With respect to the offense itself, there is
no lingering doubt in this court’s mind that the defendant is the killer of Mr. Estell.
[¶] The evidence of his guilt is overwhelming and far beyond a reasonable doubt.
[¶] The defendant gave inconsistent statements to the detectives regarding the
incident. He denied ever being in the house. [¶] But his palm print was found
near the yellow toilet paper dispenser, and that, I believe was the paper that was
used for the gagging. [¶] The defendant was caught while driving the victim’s car
four days after the murder. [¶] There was a forged deed of sale. The defendant
was also using the false name. The defendant was wearing the victim’s gold chain
at the preliminary hearing. [¶] In the court’s view, there is no doubt as to the
defendant being the killer of Mr. Estell.”
Defendant argues that the omission from this recitation of evidence the
defense offered in an attempt to raise a reasonable doubt—such as the fact that 9
of the 12 latent prints found at the scene were never identified and his sister’s
testimony that she had purchased the gold chain defendant wore at the preliminary
hearing—demonstrates the court did not properly consider lingering doubt. We
draw no such inference from the foregoing record. (Cf. People v. Ruiz (1988) 44
Cal.3d 589, 625.) In stating “there is no lingering doubt,” the court plainly did
consider that factor. And it was only logical to recite the evidence negating
lingering doubt, since that was the court’s finding. (See also Babbitt v. Calderon
(9th Cir. 1998) 151 F.3d 1170, 1179.)
Regarding the alleged consideration of aggravating circumstances not
supported by the record, defendant cites to the court’s statement that it had “read
the Supreme Court opinion” in Lewis I, which contained prejudicial references to
criminal conduct beyond the four robbery convictions to which he stipulated at the
penalty trial. (See Lewis I, supra, 50 Cal.3d at pp. 279, 286-287.) From our
review of the entire record and consideration of the court’s comment in context, it
is clear there was no improper consideration. The reference to having reviewed
this court’s opinion arose in response to defendant’s motion for presentencing
discovery. In explaining its reason for denying the request, the court quoted from
the portion of our discussion limiting the remand to rehearing “on the basis of the
record certified to this court.” (Id. at p. 287.) At the hearing on the modification
application, the court stated it had considered only the trial transcripts and certain
exhibits submitted by the parties as the basis for the ruling; and we discern nothing
to indicate otherwise. (Cf. People v. Sanders (1995) 11 Cal.4th 475, 566.)
The trial court’s characterization of defendant as “a violent and dangerous
person prior to murdering Mr. Estell” does not alter our conclusion. The court
made this statement immediately after referring to defendant’s four previous
robbery convictions and to the fact that robbery is “defined as the taking of
property by force or fear.” From the context of the remarks, we discern that the
court described defendant based on the elements of robbery and not on a
consideration of any matters outside the trial record.
C. Request for an Evidentiary Hearing for a Motion to Strike the

Special Circumstance Finding
Prior to the hearing on his modification application, defendant moved for
an evidentiary hearing for a motion to strike the jury’s special circumstance
finding. The trial court declined to entertain the motion as beyond the scope of
this court’s remand directive.
The court properly refused to consider defendant’s request. The decision in
Lewis I specified that the matter was returned to the trial court for the limited
purpose of a rehearing on the question of penalty modification (see Lewis I, supra,
50 Cal.3d at p. 287), and the dispositional order expressly stated that “the cause is
remanded to the trial court for the limited purpose of redetermining defendant’s
application for modification of the verdict in accordance with this opinion.” (Id. at
p. 292.) Reading these two portions of the opinion together, it is clear we did not
contemplate any further or other proceedings. (Cf. People v. Sheldon (1994) 7
Cal.4th 1136, 1141-1142.) This limitation is consistent with the generally
applicable rule that “[t]he order of the appellate court as stated in the remittitur, ‘is
decisive of the character of the judgment to which the appellant is entitled.’ ”
(Hampton v. Superior Court (1952) 38 Cal.2d 652, 656.) On remand, the lower
court may act only within these express jurisdictional limits. (See generally
9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 742 et seq.) Here, the trial court
correctly interpreted our disposition and properly denied a hearing on the motion
to strike as in excess of its authority.
People v. Williams (1981) 30 Cal.3d 470, 484, as authority
for the motion to strike and raises numerous constitutional objections to the
imposition of a procedural bar to preclude its consideration on the merits. In
Williams, the court held—in the context of a life imprisonment without possibility
of parole sentence—that the trial court retains discretion pursuant to section 1385
to strike a special circumstance finding and resentence the defendant accordingly.
(Williams, at p. 490.) We expressly reserved the question whether our analysis
“applies to a finding of special circumstances after the jury has returned a verdict
of death.” (Id. at p. 490, fn. 11.) Although section 1385.1 now divests the trial
court of such discretion in death cases for crimes committed on or after June 6,
1990 (see Tapia v. Superior Court (1991) 53 Cal.3d 282, 298-299), this court has
never definitively resolved the question for earlier cases. (See, e.g., People
v. Cooper (1991) 53 Cal.3d 771, 849.) We have noted, however, that “[i]t is at
least arguable that section 190.4, subdivision (e), provides the sole remedy after a
death verdict.” (Ibid.)
Given the procedural posture of this case, we may continue to postpone
final determination of the extent, if any, of the trial court’s discretion in this
regard. A modification application pursuant to section 190.4, subdivision (e),
addresses a specific and limited aspect of a capital trial, the final act of the court
prior to pronouncement of judgment and imposition of penalty. This presupposes
the defendant has made any and all other pertinent motions. Thus, when a case is
remanded solely for the purpose of rehearing on the application, no further
opportunity is available for consideration of matters outside the scope of that
narrow proceeding.
This determination does not deny equal protection because trial courts can,
on remand, strike special circumstance and enhancement findings for noncapital
defendants. Capital and noncapital defendants are not similarly situated. The
penalty modification application, and the trial court’s role in ruling on the
application, are unique to capital proceedings. Whether in the first instance or on
remand, the court is not resentencing the defendant, but reweighing the evidence
to determine whether the jury’s verdict is supported under the law and the
evidence presented. (§ 190.4, subd. (e).) Noncapital defendants are in an entirely
different position at resentencing, where the trial court reassesses the appropriate
penalty. (See, e.g., People v. Gutierrez (1980) 109 Cal.App.3d 230, 233.)
constitutional objections to the refusal to hear his
motion to strike based in part on the fact that trial counsel failed to make such a
motion at the appropriate time and place prior to the original modification
application. Assuming without deciding that a motion to strike would be tenable
in this case, we reach the same conclusion that the trial court did not err. If
counsel acted incompetently in his omission, defendant’s remedy is by petition for
writ of habeas corpus based on alleged ineffective assistance of counsel, not a
motion that would have caused the trial court to exceed its jurisdiction on remand
and distort the capital sentencing statutory scheme.
D. Request to Present Additional Mitigating Evidence
Prior to the hearing on the modification application, defendant requested
the opportunity to present additional evidence in mitigation in part because his
original defense counsel, Ron Slick, had allegedly failed to present a full
picture of defendant’s background. The trial court denied the request as beyond
the scope of the proceedings contemplated by this court’s opinion in Lewis I.
The court correctly understood that we remanded the matter solely for a
rehearing on the modification application. (See Lewis I, supra, 50 Cal.3d at
p. 292.) It is well established under our construction of section 190.4,
subdivision (e)—including our decision in Lewis I—that “the court may review
only evidence that was presented to the jury.” (People v. Brown, supra, 6 Cal.4th
at p. 337; see People v. Ramos (1997) 15 Cal.4th 1133, 1183-1184.) Since it
would have been improper to consider additional evidence, the court did not err in
precluding defendant from presenting such evidence in the first instance.
Defendant responds that the court’s ruling denied him the heightened
reliability constitutionally mandated for imposition of the death penalty by
foreclosing consideration of “any aspect of a defendant’s character or record . . .
that the defendant proffers as a basis for a sentence less than death.” (Lockett v.
Ohio (1978) 438 U.S. 586, 604; see also, e.g., Mills v. Maryland (1988) 486 U.S.
367, 373, 387; Hitchcock v. Dugger (1987) 481 U.S. 393, 398-399.) This
argument mischaracterizes the purpose and function of a modification application.
(See People v. Edwards, supra, 54 Cal.3d at p. 847.) Defendant was never denied
the opportunity to present mitigating evidence, including family background and
his maturation in prison, at the statutorily designated time—the penalty phase—
and place—before the jury. The modification application serves as a procedural
mechanism for reweighing the determination made at that time and place, not as a
substantive reevaluation. (See People v. Berryman (1993) 6 Cal.4th 1048, 1105,
1107.) Even if, as defendant contends, his “original trial was a mockery” because
“[t]his was a Ron Slick case,” that fact does not establish any constitutional
deficiency in the statutorily regulated procedures of a capital trial. Nor does it
excuse enforcement of those procedures. If Attorney Slick rendered ineffective
assistance by failing to present additional mitigating evidence, defendant may seek
relief on habeas corpus. His remedy is not by challenge to the trial court’s proper
discharge of its obligation pursuant to section 190.4, subdivision (e).
Defendant’s reliance on Creech v. Arave (9th Cir. 1991) 947 F.2d 873 does
not alter this conclusion. In Creech, the Idaho Supreme Court vacated the
defendant’s original death sentence “because the trial judge failed to pronounce
the sentence in the presence of the defendant as required by Idaho law.” (Id. at
p. 881.) At resentencing, the trial court refused to permit him the “opportunity to
introduce mitigating testimony relating to his conduct during the fourteen months
between his sentencing and resentencing hearings.” (Ibid.) The Ninth Circuit
Court of Appeals reversed the second death sentence on the grounds that in an
earlier decision, the state high court had “held that evidence of a defendant’s good
behavior and peaceful adjustment while in prison was mitigation evidence,
[citation] and that the principles of Lockett v. Ohio[, supra,] 438 U.S. 586 . . . ,
Eddings v. Oklahoma [(1982)] 455 U.S. 104 . . . , and Skipper v. South Carolina
[(1986)] 476 U.S. 1 . . . , required that a defendant be allowed to offer such
mitigating evidence at resentencing. [Citation.]” (Creech, at p. 881; see Sivak v.
State (Idaho 1986) 731 P.2d 192, 197.)
The present case differs materially with respect to both the nature of the
remand and California’s statutory and decisional law. Following Lewis I, the
matter was remanded solely for rehearing on the automatic modification
application. Pursuant to section 190.4, subdivision (e), the trial court does not
resentence the defendant but rather considers whether to modify the death verdict.
(See People v. Espinoza, supra, 3 Cal.4th at p. 830.) The express language of the
statute provides that the court does so by “review[ing] the evidence” to determine
“whether the jury’s findings and verdicts that the aggravating circumstances
outweigh the mitigating circumstances are contrary to law or the evidence
presented.” Thus, the court may not take into consideration any evidence not
before the jury that returned the death verdict. (Lewis I, supra, 50 Cal.3d at
p. 286.) Defendant offers no constitutional basis for disregarding this procedural
limitation when the modification application is heard on remand rather than
following the penalty verdict.
Defendant also asserts our determination denies him equal protection
because noncapital defendants are entitled to have their probation reports updated
prior to resentencing on remand (see People v. Rojas (1962) 57 Cal.2d 676, 682),
which may include favorable information regarding their conduct in prison. This
argument fails at its premise: capital and noncapital defendants are not similarly
situated for purposes of sentencing. Unlike those convicted of noncapital crimes,
the choice of a capital defendant’s penalty is tried to a jury under a separately
prescribed statutory scheme—of which section 190.4, subdivision (e) is a unique
and integral part. Proceedings under section 190.4, subdivision (e) are not a
resentencing but an application for modification of the death verdict as “contrary
to the law or the evidence presented.” Given this distinct purpose, defendant is
properly restricted to the terms of the statutory scheme without violating his right
to equal protection.
E. Request for Presentencing Discovery
Defendant sought presentencing discovery on the ground that Attorney
Slick never made a formal discovery motion and may not have obtained all
relevant material from the prosecution. The trial court denied the request on the
same basis it precluded defendant from presenting additional mitigating evidence.
For the reasons explained above, we agree with this ruling: Since the court could
not consider any additional evidence, further discovery would have served no
useful purpose.
F. Morality of the Death Penalty and Constitutionality of California’s

Defendant raises a series of challenges to the imposition of the death
penalty, contending that capital punishment is immoral and that the death penalty
statute is constitutionally flawed. Respondent counters that any attack on the
death penalty generally or as applied to defendant is beyond the scope of the
remand order, which specified: “Any subsequent appeal shall be limited to issues
related solely to the modification application. [Citations.]” (Lewis I, supra, 50
Cal.3d at p. 292.) We agree that this language renders defendant’s contentions
People v. Sheldon, supra, 48 Cal.3d at page 963, the court remanded for
rehearing under section 190.4, subdivision (e). On appeal from the reinstatement
of the verdict, the defendant similarly attempted to attack the death penalty, but
without success: “Any such substantive contentions are clearly beyond the limited
scope of the present appeal. As our remand order states, ‘Any subsequent appeal
shall be limited to issues related to the modification application. [Citation.]’
[Citations.]” (People v. Sheldon, supra, 7 Cal.4th at p. 1143.) Given the same
remand order in this case, we find no basis for enlarging the scope of review. To
the extent defendant has valid constitutional claims, he may raise them by petition
for writ of habeas corpus. (See In re Clark (1993) 5 Cal.4th 750, 798.)
G. Delay in Carrying Out Execution
Lastly, defendant contends the delay between his original arrest and his
ultimate execution—at least 15 years of which he attributes directly to the court
system—constitutes cruel and unusual punishment and a denial of due process
under the federal and state Constitutions. (See, e.g., Lackey v. Texas (1995) 514
U.S. 1045 (mem. opn. of Stevens, J., on denial of cert.).) As explained in People
v. Anderson (2001) 25 Cal.4th 543, 606: “[W]e have consistently concluded, both
before and since Lackey, that delay inherent in the automatic appeal process is not
a basis for concluding that either the death penalty itself, or the process leading to
its execution, is cruel and unusual punishment. [Citations.]” Defendant presents
no reason for reexamining this determination.
The judgment is affirmed.


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.

Date Filed: June 24, 2004


County: Los Angeles
Judge: Richard F. Charvat


Attorneys for Appellant:

Robert M. Sanger, under appointment by the Supreme Court, for Defendant and Appellant.


Attorneys for Respondent:

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C.
Hamanaka, Assistant Attorney General, John R. Gorey and Margaret E. Maxwell, Deputy Attorneys
General, for Plaintiff and Respondent.


Counsel who argued in Supreme Court (not intended for publication with opinion):

Robert M. Sanger
233 East Carrillo Street, Suite C
Santa Barbara, CA 93101
(805) 962-4887

Margaret E. Maxwell
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
(213) 897-2288


Opinion Information
Date:Docket Number:
Thu, 06/24/2004S020670

1The People (Respondent)
Represented by Attorney General - Los Angeles Office
Margaret E. Maxwell, Deputy Attorney General
300 South Spring St., 5th Floor
Los Angeles, CA

2Lewis, Robert (Appellant)
Represented by Robert M. Sanger
Sanger & Swysen
233 East Carrillo St., Suite C
Santa Barbara, CA

Jun 24 2004Opinion: Affirmed

Mar 20 1991Judgment of death
Apr 25 1991Filed certified copy of Judgment of Death Rendered
May 2 1994Counsel appointment order filed
  Upon request of appellant for appointment of counsel, Robert M. Sanger, Esq., is hereby appointed to represent appellant on his automatic appeal now pending in this court, including any related habeas proceedings.
May 31 1994Received:
  Copy of Applt's request for Sequential Designation of the Record, correction, Additional Record, Etc. (15 Pp.)
Feb 25 2000Record on appeal filed
  C-11 (1,361 Pp.) and R-12 (1,047 Pp.) Including Material Under Seal
Feb 25 2000Appellant's opening brief letter sent, due:
Apr 4 2000Application for Extension of Time filed
  To file Aob.
Apr 7 2000Extension of Time application Granted
  To 6/5/2000 To file Aob.
Jun 5 2000Application for Extension of Time filed
  To file Aob.
Jun 8 2000Extension of Time application Granted
  To 8/4/2000 To file Aob.
Aug 7 2000Application for Extension of Time filed
  to file AOB.
Aug 21 2000Filed:
  Supplemental declaration in support of ext. of time to file AOB.
Aug 25 2000Extension of Time application Granted
  To 10/3/2000 to file AOB.
Oct 16 2000Application for Extension of Time filed
  To file AOB. (4th request)
Oct 16 2000Counsel's status report received (confidential)
Oct 24 2000Extension of Time application Granted
  To 12/4/2000 to file AOB. No further ext. of time are contemplated.
Dec 8 2000Application for Extension of Time filed
  To file AOB. (5th request)
Dec 18 2000Counsel's status report received (confidential)
Dec 20 2000Extension of Time application Granted
  To 2/2/2001 to file AOB. No further ext. of time will be granted.
Feb 2 2001Counsel's status report received (confidential)
Feb 2 2001Application for Extension of Time filed
  To file AOB. (6th request)
Feb 13 2001Extension of Time application Denied
  To file AOB.
Jun 18 2001Counsel's status report received (confidential)
Nov 5 2001Counsel's status report received (confidential)
Jan 11 2002Counsel's status report received (confidential)
Mar 8 2002Compensation awarded counsel
Apr 8 2002Counsel's status report received (confidential)
  from atty Sanger.
Apr 12 2002Application for relief from default filed
  to file AOB. (164 pp. AOB submitted under separate cover)
Apr 16 2002Filed:
  Applt.'s application for relief from default to file AOB is granted.
Apr 16 2002Appellant's opening brief filed
  (164 pp.)
May 9 2002Request for extension of time filed
  To file resp.'s brief. (1st request)
May 14 2002Extension of time granted
  To 7/15/2002 to file resp.'s brief.
Jul 9 2002Counsel's status report received (confidential)
Jul 15 2002Respondent's brief filed
  (72 pp.)
Jul 25 2002Filed:
  Proof of service of AOB on applt.
Aug 9 2002Request for extension of time filed
  To file appellant's reply brief. (1st request)
Aug 12 2002Filed:
  Supplemental declaration of service of request for extension of time to file appellant's reply brief.
Aug 12 2002Extension of time granted
  To 9/4/2002 to file appellant's reply brief.
Aug 30 2002Request for extension of time filed
  to file reply brief. (2nd request)
Sep 3 2002Filed:
  Supplemental declaration in support of request for extension of time to file appellant's reply brief.
Sep 3 2002Counsel's status report received (confidential)
Sep 6 2002Extension of time granted
  To 11/4/2002 to file appellant's reply brief. The court anticipates that after that date, ony one further extension totaling 60 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Nov 4 2002Counsel's status report received (confidential)
  from atty Sanger.
Nov 19 2002Extension of time granted
  To 1/3/2003 to file appellant's reply brief. Extension is granted based upon counsel Robert M. Sanger's representation that he anticpates filing that brief by 1/3/2003. After that date, no further extension will be granted.
Nov 19 2002Request for extension of time filed
  To file appellant's reply brief. (3rd request)
Jan 6 2003Appellant's reply brief filed
  (60 pp. - pursuant to rule 40(k))
May 16 2003Counsel's status report received (confidential)
Jul 2 2003Related habeas corpus petition filed (concurrent)
  No. S117235
Jul 14 2003Counsel's status report received (confidential)
Sep 11 2003Compensation awarded counsel
  Atty Sanger
Mar 5 2004Oral argument letter sent
  advising counsel that case could be scheduled for oral argument as early as May calendars, to be held in San Francisco the weeks of May 3 and May 24, 2004. Any request for additional time (to argue), notification of requirement for two counsel, or advisement of "focus isues" must be made no later than 10 days after the case has been set for oral argument.
Apr 6 2004Case ordered on calendar
  5-5-04, 1:30pm, S.F.
Apr 15 2004Received:
  focus letter>>respondent People
Apr 16 2004Filed letter from:
  Appellant's counsel, date 4/14/2004, re focus issues for oral argument and requesting 45 minutes.
Apr 22 2004Received:
  Document from appellant's counsel re additional authorities for oral argument.
Apr 22 2004Order filed
  The request of appellant for 45 minutes for oral argument is granted.
Apr 22 2004Order filed
  The request of respondent for 45 minutes for oral argument is granted.
May 5 2004Cause argued and submitted
Jun 24 2004Opinion filed: Judgment affirmed in full
  Majority Opinion by Brown, J. -- joined by George C.J., Kennard, Baxter, Werdegar, Chin & Moreno JJ.
Jul 9 2004Rehearing petition filed
  by appellant. (8 pp.)
Jul 12 2004Time extended to consider modification or rehearing
  to 9-22-2004, or the date upon which rehearing is either granted or denied, whichever occurs first.
Jul 12 2004Filed:
  Certificate of word count to appellant's petition for rehearing. (1720 words)
Aug 2 2004Compensation awarded counsel
  Atty Sanger
Aug 11 2004Rehearing denied
  Petition for rehearing DENIED.
Aug 11 2004Compensation awarded counsel
  Atty Sanger
Aug 11 2004Remittitur issued (AA)
Aug 13 2004Order filed (150 day statement)
Aug 20 2004Received:
  Receopt for remittitur.
Sep 15 2004Compensation awarded counsel
  Atty Sanger
Dec 7 2004Received:
  Letter from U.S.S.C., dated 12/2/2004, advising cert petition filed on 11/9/2004 as No. 04-7507.
Feb 22 2005Certiorari denied by U.S. Supreme Court

Apr 16 2002Appellant's opening brief filed
Jul 15 2002Respondent's brief filed
Jan 6 2003Appellant's reply brief filed
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