IN THE SUPREME COURT OF CALIFORNIA
Plaintiff and Respondent,
ALBERT LEWIS and
ANTHONY CEDRIC OLIVER,
Defendants and Appellants.
Super. Ct. No. BA001542
A Los Angeles County jury convicted Albert Lewis and Anthony Cedric
Oliver (defendants or Lewis and Oliver) of the first degree murders of Patrinella
Luke and Eddie Mae Lee, and of the attempted murder of Peter Luke. (Pen. Code,
§§ 187, subd. (a), 664.)1 The jury sustained allegations that defendants were
armed with a firearm (shotgun), personally used a firearm, and personally inflicted
great bodily injury in committing the charged crimes. (§§ 12022, subd. (a)(1),
12022.5, subd. (a), 12022.7.) The jury further found true a multiple-murder
special circumstance allegation against each defendant. (§ 190.2, subd. (a)(3).)
After a penalty trial, the jury returned a verdict of death against both defendants.
The court denied defendants’ motions for a new trial (§ 1181) and to modify the
penalty verdict (§ 190.4, subd. (e)), and sentenced them to death. The present
appeal is automatic. (§ 1239, subd. (b).)
All unlabeled statutory references are to the Penal Code.
The judgment will be affirmed in its entirety.2
A. Guilt Phase
Two gunmen, each carrying a shotgun and hooded and dressed in black,
raided the Mount Olive Church of God and Christ in Los Angeles on July 21,
1989. While one assailant stood guard and shot at a bystander outside, the other
one entered and shot three churchgoers, two of whom died. Defendants were
jointly charged with the crimes. They were tried in a single proceeding before the
same jury. Oliver was 27 years old at the time of the capital crime. His half-
brother, Lewis, was 33 years old at the time.
1. Prosecution Case
The prosecution presented evidence that Lewis, embittered toward his
estranged wife, Cynthia Mizell, mounted an escalating campaign of terror against
her and her family. It culminated in the murder of her cousin, Patrinella Luke, the
wounding and near-killing of Peter Luke, who was Patrinella’s husband, and the
killing of Eddie Mae Lee, a friend of Mizell’s. The evidence also showed that
Oliver joined in the campaign of terror and personally committed the murders.
The information alleged that the crimes charged against both defendants
were serious felonies under section 1192.7, subdivision (c). An amendment to the
information further alleged that Oliver had been convicted of two prior serious
felonies under section 667, subdivision (a), and had served three prior prison terms
under section 667.5, subdivision (b). During penalty proceedings, and outside the
jury’s presence, Oliver admitted the prior conviction allegations. The parties used
these admissions to stipulate during the penalty trial that Oliver had sustained the
prior felony convictions within the meaning of section 190.3, factor (c). Oliver’s
abstract of judgment does not show that the allegations under sections 667,
subdivision (a), or section 667.5, subdivision (b), were found true or used to
enhance his sentence.
Lewis met Mizell in 1985. At the time, Mizell lived with her parents, Iva
Worthen and Edward Worthen, in a four-unit apartment house on 77th Street in
Los Angeles. Other family members lived in the same building. They included
Mizell’s aunt, Betty Bates.
When Mizell and Lewis met, he was living with Jeanett Hudson a short
distance away on 77th Street. Lewis told Mizell that Hudson was a friend who,
along with her daughter, was staying with him. In fact, Lewis was married to
Lewis and Mizell married on June 25, 1988, in a wedding ceremony at the
Mount Olive Church. Afterwards, the couple moved to a house on 117th Street.
Lewis, who stayed married to Hudson without Mizell’s knowledge, soon began to
abuse Mizell. In September 1988, he attacked her with a knife, drawing blood,
and threatened to kill her. Mizell moved out. Lewis asked her to return to their
house. She complied.
In February 1989, Lewis, wearing a black “ninja”-style suit, attacked
Mizell in their kitchen. He ordered her to leave, but apparently changed his mind
and said that if she did so, he would kill everyone living in her family’s apartment
house. Mizell stayed.
In March 1989, Mizell moved out, but continued to see Lewis. One night
during that month, Lewis met Mizell after her church choir practice. He drove her
to an alley, held a knife to her throat, and threatened to kill her. He then drove her
to her parents’ home. Thereafter, he called and asked her to return to their house.
In June 1989, she complied out of fear for her family’s safety.
On June 22, 1989, Lewis and Mizell were living together. She complained
to him about forgetting her birthday. He responded by slapping and choking her,
and threatening to kill her. On June 25, shortly after this violent episode, Oliver
moved into the couple’s house, where he stayed until July 4. While there, Oliver
was able to view Lewis and Mizell’s wedding album. It contained pictures of her
friends and relatives, and would have allowed him to memorize their likenesses.
Oliver told Mizell that Lewis was still married to Hudson. Mizell obtained
Lewis and Hudson’s marriage certificate from authorities in Las Vegas, Nevada,
and confirmed that her own marriage was unlawful by reason of Lewis’s existing
marriage to Hudson. (See § 281.) Mizell ended her relationship with Lewis on
July 18, 1989. She moved out of their home on that day, three days before the
killings. Oliver helped her to move out.
Mizell’s departure triggered threats of retaliation from Lewis. In a phone
call on the evening of July 18, he promised to kill her. At some point the same
day, Lewis bought a 12-gauge Mossberg shotgun and Winchester shotgun shells.
That night, at 10:00 p.m., he rented a red Mustang automobile.3
On the night of July 18, Mizell stayed at the 77th Street apartment of her
parents in a state of fear. Mizell and her mother, Iva Worthen, were in the
residence early on the morning of July 19, when someone torched Worthen’s
automobile, a 1984 Ford Tempo. It was parked on the street outside. Defendants
knew that Mizell sometimes drove the Ford. According to prosecution witnesses,
a neighbor, Barbara Johnson, had seen the arsonist and described him as a Black
male driving a red Mustang.
Later in the day on July 19, 1989, Mizell enlisted the help of the police to
retrieve her automobile, a maroon Datsun 200SX, from the home she had shared
with Lewis. Her car was blocked by another vehicle. The police extracted Oliver
The red Mustang was one of three automobiles that Lewis rented from the
Hertz Corporation between July 18 and July 22, 1989. He exchanged the red
Mustang for a gold Nissan Maxima on July 19 at 10:22 p.m., and exchanged the
Maxima for another Mustang of unknown color on July 21 at 11:26 p.m. Lewis
owned his own car during this time.
from the house, drawing their guns on him at one point. He was furious with
Mizell, saying, in her words, “You let the police in on me.” Mizell’s mother, Iva
Worthen, was present. She described Oliver as “very, very upset and shouting and
ranting and raving and . . . cursing.” Oliver left the scene in a red Mustang that
Mizell did not recognize.4 A license plate check revealed that the Mustang was
registered to the Hertz Corporation. One police officer, Bret Richards, testified
that he saw a pair of black leather gloves inside the Mustang.
Also on July 19, Mizell obtained a temporary restraining order against
Lewis. The order directed him to stay away from her, many of her relatives (each
identified by name), and the Mount Olive Church. The order was served on Lewis
on July 22, 1989, the day after the killings. It was entered into evidence by
On July 20, 1989, someone used a firearm to vandalize a new Buick
Skylark automobile belonging to Betty Bates, Mizell’s aunt. The windows of the
Buick were shot out by shotgun blasts. Shell casings found at the scene came
from rounds fired from Lewis’s Mossberg shotgun.
In response to these events, Mizell and several relatives decided to go to
Las Vegas for their own safety. These plans were disclosed to few other people.
The family left on the morning of July 21, 1989, and was in Las Vegas when the
murders occurred in Los Angeles. Shortly before the family’s trip, the fire
department called and told Iva Worthen that Mizell’s Datsun 200SX automobile
had been destroyed by fire. Fire department investigators testified that the car fire
had been deliberately set.
There was evidence that Barbara Johnson said the arsonist of Worthen’s
1984 Ford Tempo, who drove a red Mustang, had a jheri-curl hairstyle. Other
evidence indicated that Oliver was bald and had a mustache and goatee.
The murders took place on Friday evening, July 21, 1989, in the annex of
the Mount Olive Church. Mizell and Lewis, and Mizell’s family, regularly
attended services at the church. Oliver had no ties to the church and never went
there. Mizell, who had been the church organist for some time, ordinarily
performed on Friday nights between 7:30 and 9:30 p.m. in the annex. Had she and
her family not fled to Las Vegas, they would have been present for the services
About 70 people were in attendance, including 30 children. Two
parishioners, Melvin Earl Johnson and Ruth Johnson, waited outside the church
around 8:30 p.m. for Melvin Johnson’s daughter and niece to emerge. Another
parishioner, Larry Brown, also was outside. These witnesses saw two Black men
wearing dark clothing and hoods, and carrying shotguns — one with a pistol grip.
The pair came from a car that had circled nearby moments before with its
headlights off. It was dark outside at the time.
The taller, heavier, and darker man (Oliver) approached the porch of the
church, and covered his face with a hood or mask. Oliver, in his black clothing
and armed with a shotgun, confronted Brown, who jumped over a ledge and bolted
away in fear of his life. The smaller, lighter-skinned gunman (Lewis) was
standing guard with his own shotgun. He shot twice at Brown, missing him.
Oliver entered the church while Lewis stood guard outside with his
shotgun. Oliver walked calmly up and down the aisle and seemed to be looking
for particular worshipers. He wore black gloves with all or part of the fingers
removed. Though Mizell and certain family members were out of town, other
relatives and friends were present. Oliver shot and killed Mizell’s cousin, 35-year-
old Patrinella Luke, by inflicting a head wound at close range. Oliver also killed
76-year-old Eddie Mae Lee, Mizell’s friend, shooting her in the back as she tried
to flee. Oliver shot and wounded Patrinella’s husband, Peter Luke, who suffered
permanent, severe, and painful injuries as a result. Oliver then “calmly walked out
like [there] was nothing to it,” according to one witness Vivian Worthen. Vivian
Worthen was Patrinella Luke’s mother and Mizell’s aunt.
Detective Richard Aldahl led the investigation. He found two Winchester
12-gauge shotgun shell casings outside the church where shots were fired at
parishioner Brown. Three more 12-gauge shotgun shells were found inside the
church, including one Charles Daly shell. Shortly after the crimes, Mizell and
other family members identified defendants as suspects to Detective Aldahl.
Aldahl and his partner, Larry D. Bird, sought a warrant to search Lewis’s home for
shotguns, ammunition, and black clothing.
Meanwhile, Detective Jerry Lee Brooks performed surveillance duties. He
arrested defendants on July 24, 1989, three days after the murders.
Specifically, Detective Brooks caught Lewis as he tried to leave his house
with the barrel of the disassembled Mossberg shotgun. Executing the search
warrant, Detective Frank Garcia found the Mossberg receiver inside Lewis’s
house. During the same search, Garcia and other detectives recovered black
clothing items that included a “ninja” suit and hooded sweatshirt. Other evidence
found in Lewis’s house included a pair of black leather gloves with the fingers
removed, a directory for the Mount Olive Church, an owner’s manual for the
Mossberg shotgun, and the restraining order that Mizell had served on Lewis.
Shortly after arresting Lewis, Detective Brooks arrested Oliver. At the
time, Oliver was spotted in Lewis’s yard, where he had jumped a fence and
possibly tried to flee. After obtaining certain information from defendants’
neighbor, discussed below, Detective Aldahl obtained a warrant to search a
Chevrolet Monte Carlo to which Oliver had the keys. Inside the trunk, police
found a fully loaded Savage model shotgun, with a pistol grip, and a Winchester
ammunition box containing 12-gauge shotgun shells. There were 10 unexpended
Winchester shells, one unexpended Charles Daly shell, and one expended Charles
Daly shell. The trunk of the car also contained a black jacket.
Gunshot residue was detected on the black “ninja” suit taken from Lewis’s
house and on the black jacket taken from Oliver’s Monte Carlo. Ballistics tests
established that the two Winchester shells found outside the church, expended in
the attempt to shoot Larry Brown, were discharged by Lewis’s Mossberg shotgun.
Testing also established that the three expended shells retrieved from inside the
church (one Charles Daly) were fired by the Savage shotgun that Oliver possessed.
Forensic analysis further revealed several impressions of Oliver’s right palm print
on the Savage shotgun.
Louise Holt, a neighbor of defendants, testified that on July 23, 1989, two
days after the capital crime, Oliver took a shotgun from the trunk of his Monte
Carlo, brandished it at her, and threatened to kill her and her 14-year-old daughter.
He had argued with Holt’s daughter, and Holt confronted him.
Lewis’s supervisor at work, Gerald Dickinson, testified that Lewis
expressed anger after the July 19, 1989, incident in which the police extracted
Oliver from the Lewis home. On the day of the murders, Dickinson noticed that
Lewis drove a gold Nissan Maxima, rather than his usual car. When asked why,
Lewis replied that he had rented a car because he did not want to be seen in his
own motor vehicle. The day after the murders, on July 22, 1989, Lewis told
Dickinson that he would be accused of committing the killings, and that Iva
Worthen’s automobile had been torched. Regarding the latter act, Lewis told
Dickinson, “No one can say they saw me do it.” That was also the day on which
Lewis was served with Mizell’s temporary restraining order. Lewis showed
Dickinson the document, which ordered him to avoid contact with Mizell’s
relatives. Lewis blamed them for his marital problems.
2. Defense Case
Lewis presented no evidence. For Oliver, Lee Smith, a fingerprint expert,
testified as follows. The palm prints linked to Oliver on the Savage shotgun were
consistent with his having handled the weapon, but not fired it. However, the
palm prints were consistent with someone loading the shotgun. The shooter’s use
of gloves would explain the lack of additional fingerprints or palm prints on the
gun. Prints would not be left in the “shooting position” by someone wearing
Maggie Crenshaw, a neighbor of defendants, in July 1989, testified that she
saw Oliver’s Monte Carlo arrive to the area by tow truck. She never saw Oliver
drive it. However, she did see him work on the car. Crenshaw also had heard on
the television news that a reward, possibly of $5,000, could be obtained for
information about the murders.
Patricia James, Oliver’s older half-sister, testified, among other things, that
Oliver’s hair at trial was similar, but somewhat shorter, than when the crimes
occurred, and that he had facial hair in July 1989. James had heard a televised
report of a reward for information about the murders.
Detective Aldahl testified that Melvin Johnson had reviewed a “six-pack”
photographic lineup that included Oliver’s photograph, but could not identify him.
Johnson also could not eliminate Oliver as the gunman who entered the church.
According to Aldahl, a small pair of pants, waist size 31 inches, was found in the
trunk of Oliver’s Monte Carlo. At the time of his arrest, Oliver weighed 207
pounds, and was 5 feet 11 inches tall. No reward was offered in the case, and no
one ever asked Aldahl about a reward.
The parishioner accosted on the church porch, Larry Brown, testified that
the man in the alley (Lewis) could have been Hispanic or Black, and that the
armed man entering the church seemed smaller than Oliver, who weighed about
207 pounds at the time of the murders and 277 pounds during pretrial proceedings.
Brown knew Lewis but did not recognize him as the gunman in the alley who shot
at him. At the time, however, Brown was fleeing from the shotgun-wielding
Oliver and did not register many details about Lewis. Moreover, Brown
accurately described the assailants’ relative height, weight, and complexion.
Brown had also heard rumors of a reward for information about the murders.
B. Penalty Phase
1. Prosecution Case
a. Oliver’s Other Violent Crimes
In early October 1986, Oliver committed a strong-arm robbery, taking $120
from Melvin Lee. Later that month, Oliver burglarized Lee’s house by kicking
open the front door, choking Lee, and taking his sister’s television. On another
occasion at the same place, Oliver assaulted one James Green, who moved out of
Lee’s residence after Oliver’s attack.
b. Oliver’s Prior Felony Convictions
The parties stipulated to the admission of Oliver’s prior felony convictions
for the robberies of Melvin Lee in October 1986, the grand theft of an automobile
in August 1984, and an armed robbery committed in December 1981. Oliver was
sentenced to prison for these crimes.
c. Oliver’s Misconduct in Prison
In November 1984, while incarcerated in the California Institution for Men,
Chino, Oliver was confined in a unit reserved for inmates with disciplinary
problems or in protective custody. He threw a carton of milk and coffee at
Richard Valiente, the correctional officer serving a meal. Immediately beforehand,
when the officer displayed a paper plate, Oliver had said, “I ought to throw this
food at you.” The coffee was hot, and it would have hit the officer had he not
dodged it. Afterwards, Oliver said, “If I had any more food, I would throw that on
Sergeant Royal Towns testified that staff found a plastic shank, or knife, in
Oliver’s possession at San Quentin Prison in March 1985. It was located in a
shampoo bottle in the rear of Oliver’s cell. At the time, he was single-celled in a
secure unit for high-profile inmates, such as gang members. The weapon was
almost two inches wide, and sharpened to a point. Towns testified that inmates
favored plastic weapons because they do not activate prison metal detectors.
d. Oliver’s Misconduct in Jail
In January 1990, Oliver saw another Los Angeles County jail inmate,
Joseph Odem, rifling through his belongings and attacked him. Oliver told
deputies that he “beat the shit out of” Odem. Oliver did, however, summon help
In February 1991, Oliver flung a typewriter at another inmate in the Los
Angeles County jail law library. Oliver then grabbed the sharp-edged typewriter
cover, which had detached from the typewriter, and chased the other inmate with
it. The pair scuffled. Oliver punched the inmate in the head. Oliver also lunged
at him with the metal cover while being restrained by deputies. Oliver ignored
deputies’ orders to stop fighting. Sheriff’s Deputy Pete Cacheiro testified that at
the time of the incident, both Oliver and his victim were housed in a special unit
reserved for inmates with prior violent histories in jail.
In April 1991, four Los Angeles County sheriff’s deputies escorted Oliver
to the attorney visiting room at the county jail. The number of escorts was
extraordinary, and was required because of Oliver’s history of violence. Oliver
threatened, cursed, and resisted deputies the entire time. Oliver kicked one of the
deputies in the knee.
e. Lewis’s Domestic Violence
Jeanett Hudson was already married to Lewis when he “married” Mizell.
Hudson testified that, during their relationship, Lewis grew increasingly violent.
He pushed and punched her. He threatened her life at knifepoint on one occasion,
and caused her to lose consciousness another time. Once, after she fled from him,
he apparently feigned suicide to induce her return.
In November 1981, following a severe beating, Hudson moved out. She
went to her parents’ house, taking her young daughter with her. In the following
days, numerous phone calls from Lewis or both defendants contained threats to
kill Hudson and her family. For example, Oliver announced that “all of [them] . . .
were going to die.” In the same period, Hudson’s parents’ house was shot at, as
was Hudson’s car. The shooting of the house was particularly terrifying, Hudson
testified. There were six adults and two preteen children in the house. As the
shots penetrated the house, the children were placed in the bathtub and the adults
lay on the floor and slept there that night. More phone calls followed, containing
laughter. Thereafter, the house was shot up again. Hudson described “gunfire
[coming] from everywhere.” She testified that the “[h]ouse was full of smoke.
You could hear the kids crying, everybody laying on the floor.” The family
quickly fled Los Angeles. On December 11, 1981, another house belonging to
Hudson’s parents was destroyed by the second of two deliberately set fires. Lewis
later admitted to Hudson that he had done the shootings of the house and car.
Hudson’s sister, Nadine Burchett, testified that, around the same time, she received
telephone calls at work from both Lewis and Oliver saying they were going to find
Hudson and her family and kill them.
Despite all of this, Hudson married Lewis in March 1982. She was still
married to him when she testified.
On July 21, 1989, the night of the murders, Lewis and Oliver arrived at
Hudson’s home. They were dressed in black clothing, some of which they
removed. They showed Hudson two shotguns in the trunk of an apparent rental
car. Lewis wanted to store the guns in Hudson’s house. She refused, but allowed
him to place them in the trunk of her car. Defendants left in a hurry, saying they
needed to return the car to the rental agency. Later, the police questioned Hudson.
She furnished a false alibi for Lewis, saying they were watching television when
the murders occurred. She did so because she feared Lewis more than the police.
When Hudson declined to provide a false alibi for the capital crimes at trial, Lewis
threatened to kill her.
f. Victim Impact Evidence
Relatives and friends testified briefly about the victims’ loving and caring
natures, and the grief and loss their deaths had caused.
Ouida Faye Mitchell was the daughter of Eddie Mae Lee. Mitchell praised
Lee as a mother, and said she was an important presence in her grandchildren’s
lives. Lee was dedicated to the church. The congregation recruited five
volunteers to do her charity work after her death. Lee spoke to skid row residents
about her faith, and delivered blankets and food. She also visited convalescent
homes, and cared for sick people in their own homes.
Dora Ballard was a close friend of the victims. She testified that the impact
of their deaths was immeasurable. She confirmed Lee’s prodigious work in the
community, and described Patrinella Luke as a gifted and talented singer with the
potential for a “wonderful future.”
Patrinella Luke’s mother, Vivian Worthen, and son, Peter Luke, Jr., saw the
shootings inside the church. Worthen testified that everyone loved Patrinella
Luke, who had a beautiful voice and was a good homemaker. Peter Luke, Jr.,
loved his mother very much and had experienced difficulty in school since her
death. He could not stop thinking about her and the murders. Four years later, he
continued to dream about her and cry over her death.
Peter Luke (Peter Luke, Sr.) was the husband of murder victim Patrinella
Luke, and a shooting victim. He described Patrinella as “a beautiful person, very
vibrant.” He testified that her death had been hard on their son, Peter Luke, Jr.
The shooting also had deprived the son of a father who could engage in activities
with him. Peter Luke, Sr., asked jurors to “do the right thing.”
Nobody testified for more than five minutes. The prosecutor played a short
videotape of Eddie Mae Lee and Patrinella Luke in church.
2. Defense Case
Lewis’s sister, Patricia James, testified that their father was diagnosed as a
paranoid schizophrenic when Lewis was very young, and was continually
hospitalized in the 1950’s and 1960’s. Lewis’s father seemed to be supernaturally
strong. He heard voices and behaved violently when not hospitalized or
medicated. He would sometimes hit Lewis. Nevertheless, when Lewis was older,
he tried to help his father with his mental illness. The father lived in Lewis’s
house for a year and a half, where Lewis cared for him.
James further testified that the family consisted of 10 children by five
different fathers. Both the youngest sibling and Oliver’s father had been in prison.
The sibling was still incarcerated and used a wheelchair. Oliver’s father was a
“true to life swindler.” In the 1960’s, their mother suffered a stroke. After the
mother’s stroke, the children stayed with relatives. Their mother died of breast
cancer. One of the mother’s husbands was an abusive alcoholic. Lewis
accidentally shot Oliver when Oliver was about age nine. Oliver was treated at a
mental hospital as a boy.
Dr. Alvin E. Davis, a psychiatrist, examined Lewis on four occasions for a
total of six hours in preparation for trial. He diagnosed him as having severe
paranoid personality disorder and recurrent episodes of depression. Dr. Davis
explained to the jury that Lewis’s behavior throughout his life, including his
treatment of his wives, was not surprising in light of his paranoia. Dr. Davis also
testified that, while Lewis might think he was malingering or feigning mental
disorders at various points in the trial, he was only fooling himself, as his disorders
were real. Like Patricia James, Lewis’s sister, Dr. Davis testified that Lewis’s
father had been diagnosed as a paranoid schizophrenic decades before, and that
Lewis’s father would beat him for no reason.
Defendants’ first cousin, Brenda Roxie Wilson, and their second cousin,
Lana Luvercie Moore Bastien, each asked the jury to spare defendants’ lives. This
testimony was the sole mitigation Oliver offered.
The parties stipulated that Oliver was stabbed by another inmate in jail
midway through the trial. The jury learned that Oliver sustained more than 40 stab
wounds, and that he suffered various ailments as a result (stroke, pneumonia,
punctured lung, mild brain damage causing some speech impairment, partial
paralysis of lower left leg, and residual lung infection).
II. PRETRIAL ISSUES
A. Failure to Challenge Search Warrant; Ineffective Assistance (Lewis)
Lewis contends he received constitutionally deficient representation because
counsel did not move before trial to exclude evidence retrieved from his home, to
wit, the Mossberg shotgun and owner’s manual, and articles of black clothing that
tested positive for gunshot residue. Counsel should have tried to quash the search
warrant, Lewis claims, because the affidavit supporting it contained false
statements. Specifically, he asserts the warrant affidavit falsely attributed to
Mizell a statement that Lewis “possesse[d] a long rifle or shotgun.” Lewis relies
on police interview statements and on preliminary hearing testimony indicating
that Mizell never saw or knew about any shotguns in Lewis’s possession.
Ineffective assistance of counsel under the Sixth Amendment requires
deficient performance under an objective standard of professional reasonableness.
It also entails prejudice under a test of reasonable probability of an adverse effect
on the outcome. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694.)
In addition, “a defendant has a limited right to challenge the veracity of
statements contained in an affidavit of probable cause made in support of the
issuance of a search warrant. . . . [T]he lower court must conduct an evidentiary
hearing [only if] a defendant makes a substantial showing that (1) the affidavit
contains statements that are deliberately false or were made in reckless disregard
of the truth; and (2) the affidavit’s remaining contents, after the false statements
are excised, are insufficient to support a finding of probable cause. . . . Innocent or
negligent misrepresentations will not defeat a warrant. [Citation.] ‘Moreover,
“there is a presumption of validity with respect to the affidavit. . . .” ’ ” (People v.
Panah (2005) 35 Cal.4th 395, 456, citing Franks v. Delaware (1978) 438 U.S.
154; accord, People v. Bradford (1997) 15 Cal.4th 1229, 1297; see People v.
Luttenberger (1990) 50 Cal.3d 1, 9-10.)
As pertinent here, the police executed a search warrant of Lewis’s home. The
warrant authorized the seizure of, among other things, any 12-gauge shotguns,
shotgun ammunition, and black clothing. The police found such clothing, which
came into evidence. At the time of Lewis’s arrest, he was carrying the barrel of
the Mossberg shotgun. The rest of the gun was recovered on Lewis’s bed during
service of the search warrant. In the challenged affidavit, Detective Bird stated
that two people had been murdered by shotgun blasts. The affidavit also described
accounts of the clothing the assailants wore, and explained that Mizell, the
intended murder victim, told police that Lewis “possesses a long rifle or shotgun,
along with a black Ninja suit complete with hood.”
In arguing that the affidavit contained false statements, Lewis observes that
Mizell did not mention Lewis’s possession of any kind of gun to police in a
statement she gave shortly after the murders. He also observes that she testified at
the preliminary hearing that he did not have a shotgun in the house. However,
Lewis has not shown that Detective Bird lied about what Mizell said concerning
long guns in Lewis’s possession. Nor has Lewis shown that the detective knew
Mizell was lying or mistaken, even assuming her statement to him was untrue.
Under Franks v. Delaware, supra, 438 U.S. 154, and its progeny, the showing is
insufficient. (People v. Panah, supra, 35 Cal.4th 395, 456.)
Lewis further fails to establish that any deficient performance was prejudicial
or that the result would have changed had counsel acted differently. The alleged
falsehood was neither “necessary” (Franks v. Delaware, supra, 438 U.S. 154, 156)
nor “material” (People v. Bradford, supra, 15 Cal.4th 1229, 1297) to the probable
cause finding. The affidavit amply justified the search of Lewis’s house. In
addition to Lewis’s history of violence against Mizell and her family, including her
aunt, Betty Bates, the affidavit alleged that (1) a small gray or silver car similar to
Lewis’s car was seen at both the Bates Buick shooting and the church, (2)
expended Winchester 12-gauge shotgun shells were found at both the Bates
shooting and the church, and (3) Lewis owned a black, hooded “ninja” suit. We
find no ineffective assistance.
B. Motion to Dismiss the Information (Lewis, Oliver)
Defendants contend the information should have been dismissed based on
their motion for insufficient evidence to commit them to superior court for trial.
(§ 995.) They challenge the trial court’s ruling under state law, and claim it had
the additional legal consequence of denying them due process under both the
Fourteenth Amendment and parallel provisions of the state Constitution.5
The information was filed on December 21, 1989, and amended on
February 21, 1990. On August 21, 1990, Lewis moved to set aside the information
for insufficient evidence — a motion that Oliver joined. At a hearing on August
24, 1990, Lewis admitted that the motion lacked an adequate recitation of the
relevant facts, and asked informally for a delay in adjudicating it. The trial court
decided to proceed. It denied the motion, but offered to reconsider its ruling if
defendants presented new reasons to do so. Defendants failed to renew the
Irregularities in pretrial commitment proceedings that are not jurisdictional in
the fundamental sense require reversal on appeal only where the defendant shows
he was deprived of due process or suffered prejudice as a result. (People v.
Millwee (1998) 18 Cal.4th 96, 121, citing People v. Pompa-Ortiz (1980) 27 Cal.3d
Consistent with recent cases (e.g., People v. Boyer (2006) 38 Cal.4th 412,
441, fn. 17), we note that defendants urge that this and almost every other error
alleged on appeal infringed their constitutional rights to a fair and reliable trial.
Insofar as defendants raised the issue at all below, they failed to articulate some or
all of the constitutional arguments now advanced. In each such instance, it
appears that either the appellate claim is the kind that required no trial court action
to preserve it, or 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 each was wrong on grounds actually presented
to that court, had the additional legal consequence of violating the Constitution.
To that extent, defendants’ new constitutional arguments are not forfeited on
appeal. (See People v. Partida (2005) 37 Cal.4th 428, 433-439 (Partida); see also
People v. Cole (2004) 33 Cal.4th 1158, 1195, fn. 6; People v. Yeoman (2003)
31 Cal.4th 93, 117.) In the latter instance, of course, rejection on the merits of a
claim that the trial court erred on the issue actually before that court necessarily
leads to rejection of the newly applied constitutional “gloss” as well. No separate
constitutional discussion is required in such cases, and we therefore provide none.
519, 529.) Errors in the denial of a section 995 motion claiming insufficiency of
the evidence are not jurisdictional in the fundamental sense. (See, e.g., People v.
Mattson (1990) 50 Cal.3d 826, 870.) Thus, even assuming defendants have not
forfeited their claim by abandoning their pretrial efforts to dismiss the case, they
have not shown any prejudice warranting relief. As we shall discuss, the evidence
was sufficient to support the guilt verdict.
C. Pitchess Discovery Motion (Lewis)
Lewis argues that the trial court wrongly denied his motion to discover
information in police personnel files under Pitchess v. Superior Court (1974) 11
Cal.3d 531 (Pitchess). He insists the error had the additional legal consequence of
violating his right to due process under the Fifth Amendment, and that it violated
his right to compulsory process under the Sixth Amendment.
Because “[a] party cannot argue the court erred in failing to conduct an
analysis it was not asked to conduct” (Partida, supra, 37 Cal.4th 428, 435), the
compulsory process claim is forfeited. (Ibid.) We also find no state law error.
Representing himself, Lewis filed two motions to discover information in the
personnel files of several investigators, including Detectives Richard Aldahl and
Jerry Lee Brooks. Both times, Lewis alleged that the detectives were involved in a
conspiracy with Mizell to steal $10,000 and to murder him. He claimed they
attempted to murder him by using excessive force during his arrest that would
provoke him into defending himself, and that would allow them to apply lethal
force in return. He also alleged that the officers were violent men generally, and
that they were conspiring to frame him for murders he did not commit.
In Lewis’s first Pitchess motion, filed on April 18, 1991, he attached what
appears to be a photograph of himself when he was booked for the murders. (He
claims it shows he was beaten — a circumstance we do not discern from copies of
the photograph in the record.) Also attached to Lewis’s motion were photocopies
of newspaper articles reporting allegations or episodes of police misconduct in
unrelated cases. The trial court held a hearing on the motion on May 31, 1991.
The court denied the motion because Lewis failed to include a police report, as
statutorily required. (See Evid. Code, § 1046.)
On June 4, 1991, Lewis filed a second Pitchess motion. This time he
included the required police report among the attachments, and excluded the
booking photograph. The hearing on the second motion occurred on July 19,
1991. The trial court indicated that it had carefully reviewed the moving papers.
Ultimately, it found no prima facie evidence of a police conspiracy, and no basis
for an in camera review of the requested personnel records. The court viewed the
discovery request as a “fishing expedition,” and said it was “miserably” supported.
We review the trial court’s ruling for an abuse of discretion. (Pitchess, supra,
11 Cal.3d 531, 535.) None appears. Lewis did not show that a police conspiracy
to murder or frame him “could or might have occurred.” (Warrick v. Superior
Court (2005) 35 Cal.4th 1011, 1016; see id. at p. 1026.) Lewis’s moving papers
alleged one or more grandiose conspiracies to frame and murder him. The trial
court did not abuse its discretion in concluding that Lewis did not meet the
standard for permitting discovery of information from police personnel files.
D. Judicial Bias Claim (Lewis)
Lewis claims he was denied due process and an impartial judge under the
Fifth and Fourteenth Amendments. (See Tumey v. Ohio (1927) 273 U.S. 510.) We
By way of background, Lewis filed three disqualification motions in
propria persona during the long interval between the filing of the information in
December 1989 and the start of jury selection in January 1993. On August 15,
1991, Lewis filed a disqualification motion invoking Code of Civil Procedure
section 170.1. On January 6, 1992, Lewis filed a disqualification motion invoking
Code of Civil Procedure section 170.6. On December 9, 1992, Lewis orally
presented another disqualification motion invoking Code of Civil Procedure
section 170.1. At bottom, he claimed the trial court (Judge Jacqueline A. Connor)
systematically favored the prosecution due to a bias against parties appearing in
propria persona. He also complained about the denial of his Pitchess motions.
All three disqualification motions were denied. Proceedings were
suspended after the first motion. A judge appointed by the Judicial Council
(Orange County Superior Court Judge James L. Smith) found no bias on the part
of the trial court. The superior court denied the second motion as untimely, and
denied the third motion as lacking a sufficient factual basis. Defendant petitioned
for a writ of mandate after the second motion. The Court of Appeal denied that
petition as untimely. He also sought a writ of mandate after the third motion. The
Court of Appeal denied that petition “for absence of facts and record showing
entitlement to extraordinary relief.”
Lewis now asserts, for the first time, that the trial court showed bias in (1)
making evidentiary rulings unfavorable to the defense, such as excluding a plastic
bag containing a cocaine-like powder found at the crime scene, (2) mishandling
Marsden issues (see People v. Marsden (1970) 2 Cal.3d 118 (Marsden)), (3)
making negative comments about Lewis’s efforts to delay the trial and feign
mental illness, and (4) mishandling Lewis’s mental competence to stand trial. All
such matters touch on substantive claims addressed later in this discussion.
Meanwhile, in resolving the claim of judicial bias, we summarize the relevant
facts as follows.
Following pretrial hearings in April and October 1992, the trial court
rejected defense efforts to admit a plastic bag containing a cocaine-like substance
found in the Mount Olive Church after the capital crime. Initially, the court
posited that if defendants’ fingerprints were not found on the bag, and the bag was
found to contain cocaine, the bag could come into evidence to advance a theory,
otherwise poorly supported, that someone else committed the murders and left
cocaine at the crime scene. The defense checked the bag for fingerprints, but
never sought to have the contents tested. The court ruled the evidence was
irrelevant and therefore inadmissible.
On February 2, 1993, near the close of the prosecution’s guilt case-in-chief,
Lewis presented a Marsden motion. By then, Richard Leonard had represented
Lewis either as counsel or advisory counsel for over two years. During that time,
and as discussed later, Lewis vacillated between professional representation and
self-representation. Hence, much like a brawl that defendants had caused in the
courtroom the previous day, on February 1, the trial court apparently viewed the
Marsden motion as another effort to delay the jury verdict.6 The trial court
emphasized that, aside from the courtroom brawl, Lewis had largely cooperated
with, and behaved well toward, counsel. In denying the motion, the court relied,
in part, on Lewis’s apparent attempt to generate conflict and distrust by physically
attacking counsel late in the case. Near the end of the Marsden hearing, Lewis
declined to speak further and refused to remain in the courtroom.
On February 10, 1993, the day before the guilt verdict, the court noted
outside the jury’s presence that Lewis had “made an ineffectual attempt to injure
Defendants disrupted the guilt trial on February 1, 1993, by launching a
physical assault on counsel during the prosecution’s case in front of the jury.
Lewis initiated matters by leaping from his seat and attacking his counsel, Richard
Leonard. As Lewis’s other counsel, James Leonard, and court personnel reacted,
Oliver joined the fray. James Leonard was cut and his clothing bloodied. Richard
Leonard was bloodied and his clothing torn. Lewis bit Detective Aldahl, and
broke his skin. The trial court ordered jurors to leave the courtroom. One juror
suffered a head injury in the process. Numerous sheriff’s deputies responded.
One deputy apparently overheard defendants ask whether they were eligible to
have the case dismissed because of the assault.
himself,” and that Lewis seemed to be trying to delay the proceedings with
disruptive behavior. On February 22, 1993, the trial court faced the issue of
Lewis’s mental competence between the guilt and penalty phases. The court
commented on the “creative array [of] talents he has for delay.”
Finally, Lewis’s counsel, the trial court, and the prosecutor all believed that
Lewis was competent to stand trial. Each indicated at times that various outbursts,
including Lewis and Oliver’s assault on counsel, were feigned attempts to
persuade the court and the jury of mental illness that did not exist. For instance,
the court commented that Lewis “behaved inappropriately, [but] there was no
indication of any mental impairment observed by my deputies or anybody here in
this courtroom, including myself.”
When the foregoing events occurred, Lewis did not call the trial court’s
attention to the comments and rulings he now cites as evidence of judicial bias. In
general, if the trial court refuses or fails to disqualify itself, the complaining party
must seek disqualification at the earliest practicable opportunity after discovery of
the facts constituting the ground for disqualification. In doing so, the party must
bring to the trial court’s attention “all of the facts” later cited on appeal in support
of the judicial bias claim. (People v. Guerra (2006) 37 Cal.4th 1067, 1111.) By
failing to do so when the relevant events occurred, Lewis has forfeited the right to
complain about them on appeal. (Ibid.) For similar reasons, he has lost any
additional claims that the trial court’s alleged bias affected subsequent rulings.
(Ibid.; cf. People v. Harris (2005) 37 Cal.4th 310, 346 [declining to decide similar
forfeiture issue when the substantive claim “lacks merit”]; People v. Brown (1993)
6 Cal.4th 322, 334-335 [suggesting defendant may claim on appeal that judgment
is constitutionally invalid due to judicial bias].)
In any event, we see no violation of Lewis’s right to be tried before an
impartial judge. As we later explain, the court correctly applied the law in
excluding evidence of the “baggie” containing “cocaine.” It made this ruling only
after giving the defense ample opportunity to show relevance. Regarding the
Marsden motion, the court reasonably found no actual breakdown in the attorney-
client relationship. Again, it gave Lewis a fair chance to show the opposite was
true. Finally, the comments suggesting Lewis was feigning mental incompetence,
and had used outbursts and other tactics to manipulate and delay the proceedings,
did not suggest that the court had prejudged competence or could not be fair. Such
observations were supported by the record, including expert testimony introduced
at a hearing on Lewis’s competence. The bias claim fails on the merits.
E. Motion for Eyewitness Identification Expert (Lewis)
Lewis challenges the pretrial denial of funds to retain an expert witness on
eyewitness identification. He insists the ruling violated state law, and that it had
the additional legal consequence of violating his right to due process and to
present a defense under the Sixth and Fourteenth Amendments, and under parallel
provisions of the state Constitution. As explained further below, a claim of
ineffective assistance of counsel also is raised. We see no basis for relief.
On October 19, 1991, Lewis moved in propria persona under section 987.9
for funds to retain Dr. Elizabeth Loftus as an expert on eyewitness identification.
Lewis wanted Dr. Loftus to examine several potential eyewitnesses. At a hearing
on October 28, 1991, Los Angeles County Superior Court Judge Gary Klausner,
who was not the trial judge, denied the request. Judge Klausner doubted that Dr.
Loftus was available for appointment or that the proposed testimony would be
admitted at trial. He realized, however, that those issues were not before him, and
that only funding for an identification expert was raised. Judge Klausner ruled
that if “the trial court decides I.D. testimony would be admissible and says that it
is appropriate to [appoint] an I.D. expert,” then he “would go ahead and appoint
him.” Hence, Judge Klausner denied the motion without prejudice. It appears that
neither Lewis, while acting in propria persona, nor appointed counsel, when later
reinstated, sought a ruling from the trial judge on the admissibility of the proposed
Anticipating the Attorney General’s forfeiture claim, Lewis suggests it does
not matter whether he followed Judge Klausner’s advice and sought an advance
ruling from the trial judge on the admissibility of the proposed testimony. Rather,
in Lewis’s view, Judge Klausner’s ruling was erroneous because it forced Lewis to
litigate admissibility before being able to retain and consult with the expert, and
without being able to formulate an offer of proof. Lewis also claims compliance
with the funds ruling would have required him to disclose confidential information
to the trial court. Finally, Lewis faults counsel for not offering exculpatory expert
identification testimony at trial in any event.
No prejudicial error or ineffective assistance occurred. Expert testimony on
the psychological factors affecting eyewitness identification is often unnecessary.
For this reason, the trial court’s discretion regulating its use is rarely disturbed.
(People v. McDonald (1984) 37 Cal.3d 351, 377.) Consistent with these
principles, Lewis has not shown that such testimony would have made a difference
here. No witness identified the masked perpetrators. The prosecution relied on
circumstantial evidence showing defendants’ motive, intent, and opportunity to
commit the crime, and their consciousness of guilt afterwards. Oliver called Larry
Brown. Oliver stressed that neither Brown nor Melvin or Ruth Johnson was able
to identify defendants. The record does not show what additional exculpatory
inferences could have been drawn if an expert had testified. We reject the claim.
F. Bag Containing Suspicious White Powder (Lewis, Oliver)
Defendants contend the trial court erred in excluding, as irrelevant,
evidence that a plastic bag containing white powder resembling cocaine was found
in the Mount Olive Church after the capital crime. (See Evid. Code, § 350.)
Lewis further argues that counsel rendered ineffective assistance in failing to have
the substance chemically tested. Citing the Fifth, Sixth, Eighth, and Fourteenth
Amendments, and parallel provisions of the state Constitution, defendants assert
the additional legal consequence that they were denied their constitutional right to
present a defense. They also invoke their Sixth Amendment right to confront and
cross-examine witnesses. (See Davis v. Alaska (1974) 415 U.S. 308, 318.)
The confrontation claim is forfeited. (Partida, supra, 37 Cal.4th 428, 435.)
We find no state law error, and no ineffective assistance of counsel.
In a police property report dated July 25, 1989, Detective Aldahl stated that,
while inspecting the Mount Olive Church after the killings, he found a “[c]lear
plastic zip-lock baggie containing a white powdery substance resembling
cocaine[—]17.0 grams.” At a hearing on April 20, 1992, the question arose of
admitting the plastic bag and its contents into evidence. The prosecutor stated that
the white powder had not been tested by anyone, that nothing connected it to the
murder victims, and that its introduction would distract the jury by portraying the
victims and prosecution witnesses in a false light. Defendants argued that if
testing proved the bag contained cocaine but did not bear their fingerprints, then
some third person must have shot the victims and either thrown or dropped the
bag, possibly during a “drug deal gone bad.” The trial court questioned relevance.
The court said, however, that if defendants intended to rely on an abortive-drug-
deal theory for the murders, it would admit the bag of powder. The defense
promised to test the powder.
On October 14, 1992, the prosecution moved in writing to exclude, as
irrelevant, the “baggie” evidence described in the police report. According to the
motion, the item was found on the opposite side of the church from the victims,
and at least 16 feet away from the shooter.
A hearing on the motion was held two days later, on October 16, 1992,
while Lewis was representing himself. Oliver’s counsel indicated that two
unnamed inmates could confirm, for reasons counsel did not describe, that the
church was used for selling drugs. It became clear that defendants had not tested
the substance for cocaine. They argued that, even so, the evidence would have
shown the shooting was in retaliation for the sale of “bunk” cocaine. The trial
court granted the motion, excluding the evidence as irrelevant.
The trial court properly could have denied outright the motion to admit the
baggie evidence. (See People v. Pride (1992) 3 Cal.4th 195, 237-238 [third party
must be linked to “ ‘actual perpetration’ ” of charged crime (applying People v.
Hall (1986) 41 Cal.3d 826)]; see Holmes v. South Carolina (2006) __ U.S. __, __,
fn. * [126 S.Ct. 1727, 1733].) Whether the substance was cocaine or an innocuous
white powder resembling it, the mere presence of a saleable quantity of suspicious
powder in the church does not tend to prove that someone other than defendants
committed murder as part of a drug deal, or that the police overlooked such
evidence. Even assuming the presence of the substance suggested drug dealing or
gang activity inside the church, the suspicious powder does not raise a reasonable
doubt as to defendants’ guilt of the crimes they committed. No error or
G. Severance Motions (Lewis, Oliver)
Defendants assert the court erred in denying their oral motions to sever their
cases for trial. Both claim violations of their right to due process and to an
impartial jury under the Fifth, Sixth, and Fourteenth Amendments, and under
parallel provisions of the state Constitution. Oliver also invokes his right to an
individualized penalty determination under the Eighth Amendment.
Except for due process, the constitutional claims are forfeited. (Partida,
supra, 37 Cal.4th 428, 435.) We find no error under state law.
On April 28, 1992, Oliver moved to sever his trial from Lewis’s because
Lewis had flashed a thumbs-down sign to him, and because Oliver thought Lewis
might turn “State’s evidence.” The trial court denied the motion. On appeal,
Oliver invokes different grounds in arguing that the severance motion should have
been granted, citing events that happened after the severance motion. They
concern the admission of evidence that Lewis alone committed certain uncharged
crimes, the risk that jurors would find the defendants — who are half-brothers —
guilty by association, Lewis’s outbursts in court after the “thumbs down” incident,
and the lack of separate penalty trials.
On November 18, 1992, Lewis, appearing in propria persona, moved to
sever his trial from Oliver’s immediately after Oliver was ejected from court for
unruly behavior. Lewis complained that “this is highly prejudicial on the part of
[his] defense.” The trial court denied the motion. Like Oliver, Lewis now invokes
different grounds, based on later events, in arguing that the severance motion
should have been granted. Such events are that Oliver joined the courtroom brawl
that later happened in front of the jury, and that Lewis ultimately decided not to
testify against Oliver.
We question defendants’ apparent assumption that they could mandate
severance through their own misconduct. In any event, denial of a severance
motion is generally reviewed for an abuse of discretion. (People v. Coffman and
Marlow (2004) 34 Cal.4th 1, 41.) The reviewing court assesses the ruling based
on the record before the trial court at the time. (People v. Arias (1996) 13 Cal.4th
92, 127; People v. Price (1991) 1 Cal.4th 324, 388.) Of course, even a ruling that
was correct when made cannot stand if joinder caused such “ ‘gross unfairness’ ”
as to violate defendants’ due process rights. (People v. Arias, supra, at p. 127.)
Defendants fail to advance sufficient grounds to disturb the ruling below.
This was, after all, the classic situation in favor of a joint trial, given that
defendants were charged with common crimes involving common events and
victims. (E.g., People v. Coffman and Marlow, supra, 34 Cal.4th 1, 40; People v.
Pinholster (1992) 1 Cal.4th 865, 932.) Given the “legislative preference for
joinder, separate trials are usually ordered only ‘ “in the face of an incriminating
confession, prejudicial association with codefendants, likely confusion resulting
from evidence on multiple counts, conflicting defenses, or the possibility that at a
separate trial a codefendant would give exonerating testimony.” ’ ” (People v. Box
(2000) 23 Cal.4th 1153, 1195.) None of these factors exists here. Both defendants
denied committing the crimes, faced essentially the same charges and allegations,
bore equal criminal responsibility, and relied on a defense of mistaken identity.
There was no indication either defendant would have given exonerating testimony
at a separate trial. No abuse of discretion or gross unfairness appears.
H. Trombetta Motion (Lewis, Oliver)
Defendants contend the trial court erred by concluding that their due process
rights under California v. Trombetta (1984) 467 U.S. 479 (Trombetta) were not
violated when the police discarded two shotgun shells recovered from the shooting
of an automobile belonging to Betty Bates, Mizell’s aunt. In particular, defendants
insist both that a Trombetta violation occurred and that they were not allowed to
make an adequate record on the issue. Lewis invokes, as an additional legal
consequence, a violation of due process under the state Constitution.
Bates’s Buick Skylark was vandalized by shotgun blasts the day before the
murders. Los Angeles Police Department Detective Kempton Lockwood, a
prosecution firearms expert, testified at trial that he test-fired Lewis’s Mossberg
weapon. He compared the test-fired casings to the two spent Winchester shells
found near Bates’s damaged automobile. He determined that the Bates shells
came from the Mossberg and from “no other weapon.”
On March 6, 1992, well before the trial began, the prosecutor mentioned in
court for the record that the two shells recovered from the scene of the Bates
Buick shooting had been discarded after they were photographed and after experts
for both defendants examined the evidence.
At a pretrial hearing on April 14, 1992, Lewis claimed a Trombetta
violation had occurred. He asserted that his expert, James Warner, examined the
five shells found at the church, but that he did not examine the Bates shells. Lewis
claimed Trombetta was violated insofar as the shells had been discarded. The
prosecutor responded that, before being discarded, the shells had been made
available to Warner and he had examined them. However, they were maintained
under a different case number, which might explain Lewis’s confusion over his
expert’s access to them. The court deferred a ruling until it could hear more facts.
The trial court revisited the Trombetta issue at another pretrial hearing on
April 20, 1992. The court received no response when it asked Oliver whether he
joined Lewis’s Trombetta motion. Lewis then withdrew the motion. He noted for
the record that his expert had received access to the Bates shells.
On January 4, 1993, at another hearing that took place two days before trial
began, the prosecutor described the evidence logs, which supported her ongoing
view that the Bates shells were in the firearms laboratory and had been made
available some time before to Warner and Mr. Morton, Oliver’s expert, both of
whom had visited the laboratory to examine them. Lewis then renewed his
Trombetta motion. The trial court summarily denied it.
Contrary to what defendants now argue, they were not prevented from
making a record before their Trombetta claim was denied. Lewis expressly
relinquished his right to do so despite the court’s offer to entertain any additional
facts defendants might present. When asked to explain this stance, Lewis
conceded that his expert had a chance to examine the Bates shells and to assess
their relevance before they were discarded. Oliver stood mute when asked his
views. Defendants suggest no way in which they could have added to the record.
In sum, the trial court adequately protected defendants’ fair hearing rights.
Defendants also claim the trial court erred in failing to suppress
Lockwood’s testimony about the Bates shells as a remedy for what they perceived
to be a Trombetta violation. The due process rights conferred by Trombetta apply
only when the “evidence . . . possess[es] an exculpatory value that was apparent
[to the authorities] before the evidence was destroyed.” (Trombetta, supra, 467
U.S. 479, 489.) The prosecution’s expert determined conclusively that the shells
used to damage Bates’s Buick came from Lewis’s Mossberg shotgun — a
conclusion that linked him both to the vandalism of Bates’s automobile and to the
murders. This information negates any inference that the shells possessed
exculpatory value manifest to the authorities when discarded before trial.
Accordingly, no Trombetta violation appears.
I. Uncharged Criminal Acts (Lewis, Oliver)
Defendants argue here, as below, that evidence of uncharged conduct was
improperly admitted to show their violent character or disposition. (Evid. Code,
§ 1101, subd. (a).) This evidence was not relevant, defendants claim, for any valid
nondispositional purpose. (Id., subd. (b).) Oliver also alleges violations of his
right to due process under the Fifth Amendment and to a reliable penalty
determination under the Eighth Amendment. He also invokes generally the Sixth
Amendment and the state Constitution. Lewis claims a violation of his right to
due process under the Fifth Amendment and his right to be free of cruel and
unusual punishment under the Eighth Amendment.
Except for due process, the constitutional claims are forfeited. (Partida,
supra, 37 Cal.4th 428, 435.) No error occurred under state law.
On April 9, 1992, the prosecution moved, in writing, to admit five
uncharged incidents in which Lewis abused Mizell and threatened to kill her and
her family. Such evidence showed that Lewis (1) threatened to kill Mizell with a
knife and nicked her with it in September 1988, (2) threatened to kill her and
choked her in February 1989, (3) threatened to kill her and held a knife to her
throat in an alley in March 1989, (4) assaulted and threatened to kill her in June
1989, and (5) threatened to kill her on July 18, 1989, after she moved out. Other
uncharged acts the prosecution moved to introduce included the arsons of Iva
Worthen’s Ford Tempo and Mizell’s Datsun 200SX on July 19 and 21, 1989; the
confrontation involving Mizell, Oliver, and the police on July 19, 1989; the
shooting of Betty Bates’s Buick Skylark on July 20, 1989; and Oliver’s act of
threatening Louise Holt with his Savage shotgun on July 23, 1989. Defendants
opposed this evidence at pretrial hearings on April 14 and 20, 1992.
The trial court agreed with the prosecution that the evidence permitted
reasonable inferences about defendants’ motive, identity, and opportunity to
commit the charged crimes. The court stressed the close timing and similar nature
of the acts, the relationship between the victims and defendants, defendants’
familiarity with the victims’ property, and defendants’ access to the murder
weapon. The court found no substantial risk of prejudice under Evidence Code
section 352. The court later instructed the jury that Lewis’s “threats” against
Mizell could not be used against Oliver. The court also instructed jurors on the
limited purpose for which other-crimes evidence can be used.
The court’s ruling is consistent with the law. (People v. Gray (2005) 37
Cal.4th 168, 202; People v. Catlin (2001) 26 Cal.4th 81, 145-146.) It is entitled to
deference on appeal. (People v. Jablonski (2006) 37 Cal.4th 774, 821, 824.) No
abuse of discretion occurred. The uncharged acts showed an escalating campaign
to retaliate against Mizell and her family for the marital breakup. This motive also
suggested that defendants were the perpetrators, and that they intended and
premeditated the victims’ deaths. The incident with Louise Holt, which occurred a
few days later, showed defendants had the means to commit the murders.
J. Faretta Claim (Oliver)
Oliver claims that two withdrawals from his constitutional right to represent
himself (Faretta v. California (1975) 422 U.S. 806 (Faretta)) before trial began in
January 1993 were ineffective, because they were the product of the trial court’s
improper attempt to discourage self-representation. Oliver complains that the
court’s actions generally violated his rights under the Sixth and Fourteenth
Amendments, and under parallel provisions of the state Constitution. He claims as
an additional legal consequence that a related hearing held on September 9, 1991,
violated due process under the Fifth Amendment, because he did not receive an
adequate opportunity to be heard. The record does not support the claims.
Criminal defendants have the right both to be represented by counsel at all
critical stages of the prosecution and the right, based on the Sixth Amendment as
interpreted in Faretta, supra, 422 U.S. 806, to represent themselves. (People v.
Marshall (1997) 15 Cal.4th 1, 20.) However, this right of self-representation is
not a license to abuse the dignity of the courtroom or disrupt the proceedings.
(Ibid.) Faretta motions must be both timely and unequivocal. Otherwise,
defendants could plant reversible error in the record. (Marshall, at pp. 21, 22;
accord, People v. Valdez (2004) 32 Cal.4th 73, 98-99.) Equivocation of the right
of self-representation may occur where the defendant tries to manipulate the
proceedings by switching between requests for counsel and for self-representation,
or where such actions are the product of whim or frustration. (Marshall, supra, at
pp. 21, 22.) Of course, a defendant may withdraw his Faretta motion before a
ruling is made. (See, e.g., People v. Snow (2003) 30 Cal.4th 43, 68-70.)
Oliver made unsuccessful motions to act as cocounsel and for library
privileges on March 1 and 19, 1990, and on June 21, 1990. He also made an
initial Faretta motion on June 29, 1990, which he withdrew on July 11, 1990, and
a second Faretta motion on October 12, 1990, accompanied by a refusal to accept
appointed counsel as advisory counsel. He reaffirmed his desire to represent
himself, coupled with the appointment of new advisory counsel, on October 24
and 30, 1990, and the court allowed him to do so. He relinquished his self-
representation for the second time on March 8, 1991.
Oliver made and withdrew two more Faretta motions. They form the basis
of his claims on appeal. One of these motions was litigated during hearings held
on August 23, 1991, and September 9, 1991, and withdrawn on the latter date.
The second motion arose much closer to trial, and was addressed on November 18
and 19, 1992. The trial court cautioned that it viewed the latter motion as
untimely, but was willing to continue it to the next day and entertain it further. On
that next day, Oliver equivocated, refusing to give the court a clear answer on
whether he still wished to proceed in propria persona. The court ruled that he had
withdrawn his motion.
Oliver maintains that his actual or constructive withdrawals of the two
Faretta motions at issue were ineffective because they were the product of the trial
court’s improper attempt to discourage him from representing himself.
Specifically, Oliver complains that the court improperly delayed acting on the
August 23, 1991 motion, inducing him to withdraw it on September 9, 1991, and
that it erroneously denied his November 18, 1992 request as untimely.
The trial court did not improperly delay acting on Oliver’s August 23, 1991
motion, or induce him to withdraw it on September 9, 1991. During these two
hearings, the court had a serious discussion with Oliver and his counsel, Charles E.
Lloyd, who stepped forward to represent him, about the security risks that self-
representation would present. Oliver admitted that he had “abused the pro. per.
perks” before. He became frustrated, however, over the tenor of the discussion,
and over the possibility that valid security concerns might interfere with his
unfettered right of self-representation. The court made no ruling on August 23,
1991, and continued the matter until September 9, 1991, so that it could review
Oliver’s jail records and consider additional evidence related to security. When
Oliver withdrew his Faretta motion at the latter hearing, and accepted
representation by Lloyd and his associate, William E. Turner, Oliver’s actions
were not the result of any error by the court, but of his own frustration over
legitimate security concerns.
A similar conclusion applies to Oliver’s claim regarding the Faretta
proceedings held in November 1992. The only reference to the timeliness of this
motion occurred when the trial court asked on November 18 that Oliver join Lewis
in waiving time to start the trial, which was imminent. Oliver refused and asked to
appear in propria persona. As noted, the court said the motion was untimely, but
postponed its ruling until the next day. Oliver became hostile and said he would
refuse to return to court the next day. On November 19, when Oliver nonetheless
appeared, he and the court debated whether he wanted to pursue or withdraw his
request for self-representation. The court found a withdrawal. In the process,
Oliver agreed with Lewis to delay the start of the trial until January 1993. Nothing
more was said about whether Oliver’s request for self-representation was timely.
Oliver’s acceptance of the court’s conclusion that the Faretta motion was
withdrawn was not the product of any ruling — erroneous or otherwise — on the
timeliness of the motion.
K. Marsden Claim (Oliver)
Oliver challenges the denial of his pretrial motion to replace counsel under
Marsden, supra, 2 Cal.3d 118. He claims a Sixth Amendment violation as an
additional legal consequence of the court’s ruling. No error occurred.
Replacing counsel lies within the court’s discretion. “The court does not
abuse its discretion in denying the motion unless the defendant has shown that a
failure to replace counsel would substantially impair the defendant’s right to
assistance of counsel.” (People v. Smith (2003) 30 Cal.4th 581, 604.)
In September 1991, after Oliver withdrew one of his many Faretta motions,
the trial court appointed Charles Lloyd and William Turner to represent him. A
short time later, in October 1991, the court learned that Oliver might wish to
replace counsel under Marsden. Oliver had apparently sent the court a letter
requesting a Marsden hearing, but then indicated that his motion was premature
and withdrew it for the time being. The same issue was broached in June 1992,
but Oliver denied wanting to file a Marsden motion. Eventually, on December 9,
1992, Oliver moved to replace counsel. This motion occurred between his last
Faretta motion, which he made on November 19, 1992, and the start of trial,
which occurred on January 6, 1993. Oliver and Turner attended the Marsden
In that hearing, Oliver complained of counsel’s inattentiveness, lack of
loyalty, and inadequacy of trial preparation. Specifically regarding the first point,
Oliver asserted that counsel did not visit him in jail. Turner replied that he visited
Oliver at least weekly in jail, but that in the last two weeks “they didn’t have the
personnel to bring him down because Mr. Oliver has to be escorted by 10 other
subjects.” Oliver acknowledged that Turner was correct about the frequency of his
visits to him in jail, but that he still wanted him relieved because he was not
“preparing my case properly.” The court asked Oliver for examples as to what
Turner had not done in preparing for the guilt trial. Oliver said only that Turner
had promised to withdraw. Also, the court asked Turner about Lloyd’s preparation
for the penalty trial. Turner reported that Lloyd had tried to contact witnesses, and
that Oliver was not cooperating in the matter. Regarding loyalty, Oliver
questioned counsel’s loyalty to him based on their failure to honor an alleged
promise to withdraw from representing him. The trial court denied the motion as
to Turner, and deferred it as to Lloyd. On December 16, 1992, Oliver withdrew
his Marsden motion as to Lloyd without explanation.
On appeal, Oliver contends that the trial court denied him an adequate
opportunity to make a showing that he was entitled to replace counsel under
Marsden. He primarily faults the court for not asking Turner either to defend his
own trial preparation or to address the state of their relationship.
The record does not support the foregoing claim. Oliver had a full and fair
opportunity to voice his objections about counsel’s performance. Oliver offered
no specific information to which either Turner or the trial court could
meaningfully respond. Indeed, given the timing and nature of the motion, it
appears to have been made primarily to delay the trial. In any event, since Oliver
declined to elaborate on his complaints about counsel, the court had no duty to
inquire still further. (See, e.g., People v. Lucky (1988) 45 Cal.3d 259, 280-283 [no
Marsden violation where, among other things, defendant declined to criticize
Oliver also asserts that the trial court violated his Marsden rights when it
refused to let him subpoena records of the frequency of visits by Lloyd. He claims
a related violation of his due process rights under the Fourteenth Amendment.
However, the court agreed to accept Oliver’s version of events without seeing the
records. Thus, Oliver was not deprived of any information needed to support his
L. Faretta Claim (Lewis)
Lewis claims the trial court erred by allowing him to relinquish his Sixth
Amendment right to represent himself (see Faretta, supra, 422 U.S. 806) without
ascertaining that he was mentally sound at the time. We disagree.
Counsel was appointed early in the case. Lewis also had library privileges
to help with his defense. Nevertheless, and possibly in an attempt to delay the
proceedings, Lewis brought numerous motions regarding his representation,
vacillating about whether he wanted to represent himself or be represented by
counsel. Lewis first moved to represent himself with Richard Leonard as
cocounsel. On October 24, 1990, the trial court denied the motion. On October
30, 1990, Lewis moved to represent himself under Faretta. At a hearing on
November 2, 1990, the court appointed a psychiatrist, Dr. Michael Coburn, who
found that Lewis could knowingly and intelligently waive his right to appointed
counsel. After the court warned Lewis about the risks of self-representation, he
sought and received more time to decide the issue. On December 14, 1990, his
Faretta motion was granted, and his counsel was placed on advisory status.
At hearings on April 14 and 20, 1992, the trial court and Lewis discussed
whether he wanted to continue representing himself. Lewis sought to forgo self-
representation if he could retain his library privileges. The court apparently agreed
and reappointed Richard Leonard as counsel.
On May 19, 1992, Lewis asked to represent himself again. On June 5,
1992, the trial court warned that Lewis would not be allowed to “go back unpro
per,” but granted his second Faretta motion. Two days before trial, on January 4,
1993, Lewis asked to relinquish his in propria person status a second time. After
warning Lewis that he “can’t change [his] mind,” the court granted the request. It
reappointed Richard Leonard as lead counsel, and appointed his brother James
Leonard as cocounsel.
Meanwhile, at an evidentiary hearing on December 9, 1992, the trial court
learned that Lewis had accused his alibi witness and first wife, Jeanett Hudson, of
involvement in the murder of one Frankie Hudson in 1975 or 1977. On January
19, 1993, the prosecutor moved to have Lewis’s telephone privileges revoked,
explaining that Lewis had been calling Jeanett Hudson and threatening her. The
prosecutor stated, “These threats entailed his intent to have her and her daughter
killed, as well as threats to find a way to get her fired.” On January 20, 1993, after
counsel was reappointed, Lewis declined to appear in court because other inmates
had made upsetting comments about his mother’s death, which had occurred about
a year beforehand.7
Citing Brown v. Wainwright (1982) 665 F.2d 607, 612, Lewis argues that a
defendant may not forgo self-representation absent a “dialogue” with the court, at
least where “special circumstances” are present. Such conditions supposedly
existed here in the form of what he characterizes as his aberrant behavior before
and after the January 4, 1993 hearing. He claims the court erred in not questioning
him or ordering a new psychiatric examination to determine whether the renewed
request for counsel resulted from a mental defect.
The record suggests that Lewis acted “intentionally and voluntarily”
(People v. Dunkle (2005) 36 Cal.4th 894, 909) when he requested counsel on
January 4, 1993, and was not incompetent or suffering from any mental defect.
(See ibid., citing Brown v. Wainwright, supra, 665 F.2d 607, for general rule that
Faretta may be waived through silence or equivocation.) After all, Lewis had
taken a similar step once before and was familiar with the differences involved in
self-representation as opposed to representation by counsel. In addition, the trial
At a hearing on January 21, 1993, at which Lewis was present, the court
granted the prosecution’s motion and revoked Lewis’s telephone privileges.
court alerted Lewis to the consequences of abandoning his role as his own counsel
so near the start of trial. A short time later, as we shall discuss, the trial court
declined to declare a doubt as to Lewis’s competence to stand trial. (See Dunkle,
supra, at pp. 909-910 [defendant found competent around time of request for
counsel].) There was no substantial evidence that Lewis was mentally incapable
of surrendering his Faretta rights. The asserted error did not occur.
III. Jury Selection Issues
A. Excusal for Cause (Lewis, Oliver)
Defendants claim the trial court erred in granting the prosecution’s motion to
excuse a prospective juror, A.L., based on his views on capital punishment. The
error allegedly violated defendants’ right to an impartial sentencing jury under the
Sixth and Fourteenth Amendments. We reject the claim.
A prospective juror may be excused if his views would “ ‘prevent or
substantially impair’ ” the performance of his duties as a juror in accordance with
his instructions and oath. (Wainwright v. Witt (1985) 469 U.S. 412, 424.) Because
this determination involves an assessment of the juror’s demeanor and credibility,
it is one “peculiarly within a trial judge’s province.” (Id. at p. 428, fn. omitted.)
“When applying these rules, the trial court’s assessment of a prospective juror’s
state of mind will generally be binding on the reviewing court if the juror’s
responses are equivocal or conflicting.” (People v. Hayes (2001) 21 Cal.4th 1211,
1285.) In other words, the reviewing court generally must defer to the judge who
sees and hears the prospective juror, and who has the “definite impression” that he
is biased, despite a failure to express clear views. (Wainwright v. Witt, supra, at
A.L. admitted several past negative encounters with law enforcement,
including a misdemeanor conviction and a gang fight in which he was hit with a
police nightstick. A.L. indicated that intentional killers should “never” get death.
However, in apparent self-contradiction, he also said the verdict might “depend[ ]”
upon how the victims were killed. A.L. could see himself voting for life
imprisonment even where the murder was “brutal” and aggravation outweighed
The prospective juror’s views seemed to harden when the prosecutor asked
how he would assess culpability and punishment where, as here, a shooter and
nonshooter were both accused of the same crime. A.L. indicated that he would not
convict anyone of an intentional killing, or impose death, unless he were the actual
killer. A.L. said he would adhere to these views notwithstanding the evidence or
instructions. At first, the trial court denied the motion to excuse A.L. for cause.
Ultimately, however, the court granted the request.
The prospective juror’s answers were equivocal and conflicting. Those
answers, in combination with the trial court’s first-hand observations, could give
rise to a definite impression that A.L.’s views on the death penalty would
substantially impair the performance of his duties. We therefore defer to the
The Attorney General argues that defendants have forfeited their challenge
to A.L.’s excusal for cause, because counsel failed to object to the trial court’s
ruling or to seek clarification of an inaudible answer A.L. gave to the last question
posed by the trial court.
Before the trial court asked its final question, the prosecutor asked A.L.: “I
understood you to say you could not see yourself ever voting for the death penalty
as to the person who did not do the actual shooting?” A.L. answered: “That’s
correct.” The prosecutor asked: “In other words, no matter what I proved to you,
if that person did not actually fire the shot, you are not going to say he is eligible
for the death penalty no matter what?” A.L. answered: “That’s right.” The trial
court then inquired, “if I instructed you that the law says that a person aids another
with the intent, that [if] somebody helps they are liable whether they did the
shooting or did the robbing or whatever, the law tells you that is a fact, can you
follow that law or it just doesn’t seem fair to you?” The prospective juror did not
(footnote continued on next page)
B. Batson-Wheeler Claims (Lewis, Oliver)
Defendants contend that by failing to grant their motions challenging the
prosecution’s excusal of seven Black male prospective jurors, made over defense
objection, the trial court violated the federal constitutional guaranty of equal
protection of the laws (Batson v. Kentucky (1986) 476 U.S. 79 (Batson)), and the
state constitutional right to a jury drawn from a representative cross-section of the
community. (People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).)9
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 state Constitution. (Wheeler,
supra, 22 Cal.3d 258, 276-277; People v. Griffin (2004) 33 Cal.4th 536, 553.)
Such a practice also violates the defendant’s right to equal protection under the
(footnote continued from previous page)
respond audibly. Defense counsel did not ask the court or juror to repeat his
response. The court then excused A.L. for cause.
The law is unclear as to whether a procedural bar applies to defendants’
challenge to A.L.’s excusal for cause. (Compare In People v. Hill (1992) 3 Cal.4th
959, 1005 [holding defendant “waived any error” by “failing to object to the
prosecutor’s challenges”], with People v. Holt (1997) 15 Cal.4th 619, 652, fn. 4
[stating “controlling federal precedent holds that Witherspoon error is not waived
by ‘mere’ failure to object”]; see Witherspoon v. Illinois (1968) 391 U.S. 510.)
“Because the question whether defendants have preserved their right to raise this
issue on appeal is close and difficult, we assume that defendants have preserved
their right.” (People v. Champion (1995) 9 Cal.4th 879, 908, fn. 6.)
Oliver, joined by Lewis, invoked Wheeler, not Batson, below. Oliver
concedes as much. Nevertheless, the Wheeler objection preserves the Batson
claims. (People v. Yeoman, supra, 31 Cal.4th 93, 117-118.)
Fourteenth Amendment. (Batson, supra, 476 U.S. 79, 88; see People v. Cornwell
(2005) 37 Cal.4th 50, 66; People v. Cleveland (2004) 32 Cal.4th 704, 732.)
The United States Supreme Court has recently reaffirmed that Batson states
the procedure and standard trial courts should use when handling motions
challenging peremptory strikes. “First, the defendant must make out a prima facie
case ‘by showing that the totality of the relevant facts gives rise to an inference of
discriminatory purpose.’ [Citations.] Second, once the defendant has made out a
prima facie case, the ‘burden shifts to the State to explain adequately the racial
exclusion’ by offering permissible race-neutral justifications for the strikes.
[Citations.] Third, ‘[i]f a race-neutral explanation is tendered, the trial court must
then decide . . . whether the opponent of the strike has proved purposeful racial
discrimination.’ [Citation.]” (Johnson v. California (2005) 545 U.S. 162, __
[125 S.Ct. 2410, 2416], fn. omitted.)
We review the trial court’s ruling on purposeful racial discrimination for
substantial evidence. (People v. McDermott (2002) 28 Cal.4th 946, 971.) It is
presumed that the prosecutor uses peremptory challenges in a constitutional
manner. We defer to the court’s ability to distinguish “bona fide reasons from
sham excuses.” (People v. Burgener (2003) 29 Cal.4th 833, 864.) As long as the
court makes “a sincere and reasoned effort to evaluate the nondiscriminatory
justifications offered, its conclusions are entitled to deference on appeal.” (Ibid.)
We now turn to defendants’ contentions regarding the seven prospective
jurors. Defendants assert the prospective jurors were subjected to peremptory
challenge in violation of Batson and Wheeler. The trial court disagreed. We will
sustain its rulings.
1. Defense Motions
There were four Batson-Wheeler motions. The first expressly covered three
Black males against whom the prosecutor had exercised peremptory challenges:
L.W., L.T., and C.W. (See People v. Avila (2006) 38 Cal.4th 491, 549, 552 [scope
of motion affects scope of inquiry into reasons for excusal].) The trial court stated
that it saw nothing amounting to a prima facie case of improper group bias, but
directed the prosecutor to explain her reasons for the challenges. After hearing
these explanations, the court denied the motion without elaboration.
In their second Batson-Wheeler motion, defendants expressly challenged
the excusals of L.B. and K.B. The trial court found a prima facie case of improper
group bias, but denied relief after hearing the prosecutor’s reasons. It accepted
without elaboration the prosecutor’s reasons regarding L.B. With regard to K.B.,
the court commented that he showed an anti-capital punishment bias throughout
In their third Batson-Wheeler motion, defendants expressly challenged the
excusal of V.H. The trial court first granted the motion, but changed its mind and
denied it the next day. The court did so following an extensive hearing in which
the prosecutor insisted that she had no reason or desire to discriminate, and argued
that “[no] prosecutor would allow a man like [V.H.] to sit on this jury.” The court
observed that “all 6 of the People’s peremptories have been of male Blacks.” The
court nonetheless concluded, “I don’t see anything that appears to be inherently
racial” in the prosecutor’s reasons for excusing prospective jurors, and that the
prosecutor had excused V.H. for a “race neutral” reason.
In their fourth Batson-Wheeler motion, defendants expressly challenged the
excusal of N.S. The trial court denied this motion too, with little discussion,
stating, “I accept the prosecution’s explanation and reason as valid.”
The parties agreed that several Blacks served on the jury. The prosecutor
also asserted, in response to the Batson-Wheeler motion concerning V.H., that the
defense had peremptorily challenged three Black prospective jurors and sought
stipulations to the excusal of another three. The foreperson of the jury at the guilt
phase was a Black man, and the foreperson of the jury at the penalty phase was a
2. Prosecutor’s Reasons
We assume solely for purposes of argument that, for each prospective juror,
we must proceed to the third step of the Batson-Wheeler inquiry, i.e., whether
substantial evidence supported the trial court’s finding that the prosecution had
articulated a permissible, race-neutral reason for the excusal. (See People v. Ward
(2005) 36 Cal.4th 186, 200-201.) In each case, it is plain that there was.
As noted, the first Batson-Wheeler motion expressly challenged the
excusals of L.W., C.W., and L.T. Prospective Juror L.W. testified that a half-
brother had been in and out of jail in Oklahoma since age 15 and was currently in
state prison there. L.W. asserted he was once stopped by police on false pretenses.
The police cited him for running a red light but he denied having done so. In his
view, the police stopped him to see if he might have been driving a stolen car, and
the citation was pretextual. He denied that this experience would cause him to
tend to disbelieve police testimony.
The prosecutor stated that the juror questionnaire and voir dire of L.W.
warranted a peremptory challenge. For example, he “had the brother in the
Oklahoma prison. He indicated that his brother was in and out of jail . . . .” Also,
L.W. had “a difficult time with the questionnaire” in terms of understanding some
of the legal concepts. And he “gave me a bad feeling . . . right from the start,
especially when he indicated he was . . . stopped for running a red light, [and] felt
that the police simply used an excuse to stop him because they actually thought he
was driving a hot car. And it was definitely my feeling that he thought he was
being discriminated against because he was Black. [¶] I did not believe him when
he said that he would not hold that against us. Everything about his demeanor . . .
was very negative. I didn’t feel like there was any hope the People had of getting
a fair trial” from him.
On this record, it is apparent that the prosecutor had reason for her
expressed skepticism that L.W. would be fair to the People. On this basis, she was
entitled to excuse him.
C.W. seemed to have trouble hearing two of the trial court’s initial
questions. Also, voir dire began with C.W.’s admission that he would rather not
have been called to the stand. He later explained that he might have to help his
disabled daughter-in-law, and that the possibility of having to do so might distract
him during trial. In a conflicting response, however, he insisted he could give full
attention to the case if on the jury.
C.W. and members of his family had been crime victims, and he felt that
the police response to crime reports in general is slow when the victims are poorer.
Many years before, he had spent a couple of hours in jail after being arrested for
drinking in a night spot after legal hours. The charges were dismissed. One son
was once charged with burglary but not convicted (C.W. believed his son was
innocent), another son had died of a drug overdose, and his daughter was charged
with shoplifting and was convicted. The police had beaten one of his sons in a
county facility. None of these incidents, he testified, would affect his ability to be
fair in a trial of defendants, including his ability to impose the death penalty if
warranted. Finally, C.W. was familiar with the Mount Olive Church or at least the
surrounding area, though he was not aware of the murders that had occurred there.
The prosecutor explained that given C.W.’s testimony, he would be unduly
reluctant to convict the defendants. “[H]e indicated that he feels the police serve
the rich . . . better than the poor . . . . He himself, his son and his daughter have all
been busted. . . . He himself, his son was beaten in custody by police officers. [¶]
He is familiar with the area of the Mount Olive Church. He has a concern about
having to go and take care of his son’s wife, who is apparently paralyzed. He also
indicated that he visited his son in L.A. County Jail, his son’s case was thrown out.
He felt that his son was innocent. [¶] This would definitely give somebody a
feeling that somebody who is in court might well be innocent as well as in
occasions where defendants are poor, it would definitely bias them in their favor
given his feeling about law enforcement[,] given the fact he and his son were
beaten by the police.”10
Despite C.W.’s contrary assurances, the prosecutor had reason for her
expressed skepticism that he would be fair to the People. On this basis, she was
entitled to excuse him.
L.T. circled an answer on his juror questionnaire that justice was not served
in the Rodney King beating case in which police officers were acquitted and
declined to explain why. On voir dire, L.T. stated that he felt that police officers
could be both good and bad. A friend of his was once wrongfully accused of
starting a fire that was large enough to be seen from a freeway. L.T. commented
on then recent events involving Rodney King and Reginald Denny, who was
beaten by one or more rioters following the police beating of King. He stated that
justice had not been served because the King incident had been treated differently
from the Denny incident. He felt that the respective incidents showed that the law
applied differently to Blacks than to Whites, now and then.
The prosecutor explained that she challenged L.T. because “he has a very
large chip on his shoulder as was evidenced by the fact he felt the King verdict
was unjust. . . . [¶] He feels that the death penalty is imposed more often on
The prosecutor may have misrecollected one item of the information C.W.
provided. The record suggests that C.W.’s son was once beaten by the police, but
not C.W. himself.
Blacks than on Whites. He feels that he got bad treatment from the police. And he
was probably the most strident [prospective] juror we heard from yet with respect
to the King case and the racial issues involved.” Here again, the prosecutor had
reason for her expressed skepticism that a prospective juror would be fair to the
People. On this basis, she was entitled to excuse him.11
As noted, defendants’ second Batson-Wheeler motion expressly challenged
the excusals of L.B. and K.B.
L.B. began voir dire by explaining that his brother was in confinement for a
pending robbery charge, even though the prosecution did not have enough
evidence to convict him. He testified that the police told their mother that his
brother should turn himself in or they would shoot him. His own experiences with
police officers had been mixed: “you have some good ones, you [have] some bad
ones.” In general, he expressed a willingness to be fair in the case against
The prosecutor said that L.B.’s answers about his brother and the police
showed a hostility to the state that warranted a peremptory challenge. “I could not
imagine him possibly being fair in any way in which a defendant who was Black
was being tried for a crime.” She also said, “It’s obvious that he feels unhappy
Lewis argues that L.T. never said that the death penalty is imposed more
often on Blacks than on Whites. But the prosecutor fairly inferred that view from
L.T.’s written comment that he once believed “they should not have the death
penalty because the law seem[s] to be different for Black[s] than Whites.” L.T.
felt that he now believed the death penalty was acceptable, but he did not say that
he thought it was applied in a statistically proportionate manner. In fact, his oral
voir dire suggests that he still thought there was an imbalance in the justice
system’s treatment of Whites and Blacks and had not retreated from that view, but
that the death penalty was nevertheless permissible because “something has to be
done.” In any event, nothing in Lewis’s assertion undermines the prosecutor’s
larger conclusions about the attitudes of L.T.
about the situation his brother finds himself in.” Despite L.B.’s assurances, the
prosecutor had reason for her expressed skepticism that the prospective juror could
be fair to the People. She was entitled to excuse him.
In his questionnaire, K.B. said that he would find it difficult to serve on a
jury in a capital case and could not be objective. Elsewhere on his questionnaire,
he suggested that he would always reject the death penalty and vote for life
imprisonment without possibility of parole. He “agree[d] somewhat” that anyone
who intentionally kills another should never get the death penalty. He would
prefer not to serve on the jury out of “sympathy.”
On voir dire, K.B. testified that although he had expressed reservations
about the death penalty on his questionnaire, he was more comfortable with it
now, evidently from having observed the voir dire proceedings. He, too,
expressed a willingness to be fair in the case against defendants. But the record
reflects a rote quality to his answers about his open-mindedness, and the
prosecutor began her questioning of him by commenting that “I feel like
sometimes we get to the point where we start programming your responses and
people start to try to conform to what everybody else says . . . .” She then asked
him if he was disavowing a prior statement that his religious scruples would make
it difficult to sit in judgment of another in a capital case. K.B. replied that he did
not realize then that the trial court would tell the jury what to do regarding the
penalty phase, and the prosecutor explained that his first instinct was correct: the
court would not tell the jury what sentence to impose. K.B. gave a vague
response, and the prosecutor pressed, “how does that make it easier?” K.B.
replied: “I’m just more at ease after listening to everything and after she [the
court] said everything, explained everything to us and just listening to her.”
The prosecutor then asked K.B. about two other questionnaire responses:
his feelings about the death penalty would interfere with his objectivity at the guilt
phase, and he could never see himself voting for death. K.B. essentially
disavowed those responses.
The prosecutor stated with regard to K.B., “I just don’t believe a word this
man said. His questionnaire is so completely down the line anti-death penalty and
every single answer is consistent, anti-death, anti-death, ‘I can’t be fair,’ anti-
death. Then he when questioned says no, everything is fine, everything has
On this record, it is apparent that the prosecutor had reason for her
expressed skepticism that K.B. would be fair to the People. His juror
questionnaire showed considerable antipathy toward the death penalty and
suggested that he would automatically vote for life imprisonment without
possibility of parole. His answers on voir dire did not persuasively convey a
different impression. On this basis, the prosecutor was entitled to excuse him.
As noted, defendants’ third Batson-Wheeler motion expressly challenged
the excusal of V.H.
V.H. had recently served on a jury that acquitted someone else of rape. The
jury did not believe the victim. V.H.’s son had had trouble with the law at least
since age 15 and was currently incarcerated. Despite this, neither was bitter
toward the state, and V.H. had encouraged his son to do his time without
complaining. He generally professed an ability to be fair in the case against
The prosecution explained that she found V.H. “very acceptable” until she
learned he had voted to acquit someone on a rape charge. “Unfortunately, it is my
feeling that once a juror has had the experience of acquitting a defendant, it does
create a certain mind set and the readiness to acquit. It certainly shows that he was
able to reject the prosecutor’s argument, reject the People’s proof and reject the
word of a woman. [¶] In this trial, we will have women testifying to the history of
abuse by one of the defendants. Their believability and credibility will become
crucial with this case.” The prosecutor noted that the defense had properly
exercised a peremptory challenge against a prospective juror for having rendered a
verdict of death in another case, and “[t]hat’s what a peremptory challenge is all
In light of V.H.’s vote to acquit another criminal defendant of rape,
rejecting the testimony of a female victim of violence, the prosecutor had reason to
be skeptical about V.H.’s willingness to be fair in this case, in which the testimony
of female victims of violence would be crucial. On this basis, she was entitled to
As noted, defendants’ fourth Batson-Wheeler motion challenged the excusal
of N.S. This individual had a brother in the custody of what is now called the
California Department of Corrections and Rehabilitation. His brother would not
reveal the nature of the offense, and N.S. did not know what it was. He believed
his brother was fairly incarcerated, and that circumstance would not affect N.S.’s
ability to be fair in the case against defendants.
N.S. testified that because a prisoner dies in prison whether sentenced to
death or to life imprisonment without possibility of parole, he viewed the two
penalties as equal. He added that for a Black person a life sentence to prison
would be “like death,” according to what his brother had told him. He thought
that because Robert Alton Harris (see People v. Harris (1981) 28 Cal.3d 935) was
White, his case had gotten better treatment from the courts than a condemned
Black man who had been executed “for killing a San Francisco cop. I don’t feel
he was guilty. They had to drag him away screaming. No one looked into his case
after he was convicted. If they did, they probably would have found him
innocent.” N.S. assured the trial court that despite these views he could be fair to
both sides in the trial against defendants.
The prosecutor explained that she believed N.S. “felt the death penalty and
life without would be torture . . . . This is a juror whose beliefs concerning the
death penalty are at the very least bizarre, but most likely not fair, I believe, to the
People.” She also explained that his comments contrasting Robert Alton Harris
and the Black condemned prisoner reflected that he “did not feel that Blacks
receive justice in the justice system. He does have an agenda. He does not like
the death penalty, that reason alone.” Earlier, in presenting a challenge for cause
against N.S., the prosecutor said, “the truth of the matter is he could not be fair
based on his feelings, his racial bias in terms of what he thinks a Black man goes
through in prison, and what he thinks might happen if [giving] the death sentence
in terms of the possibility of finding later on he was innocent.” “[H]e has a clear
racial bias in favor of any Black defendant that would prevent him from fairly
convicting or sentencing someone to death.”
The prosecutor had reason to be skeptical about the willingness of N.S. to
convict defendants and vote for a verdict of death in this case. On this basis, she
was entitled to excuse the prospective juror.
Defendants further contend that the prosecution’s reasons could hardly be
race neutral insofar as the prosecutor commented on the racial attitudes of three
prospective jurors: L.W., L.B., and N.S. In particular, defendants insist that it is
unconstitutional to exercise peremptory challenges against prospective jurors
because they harbor views gleaned from their individual experiences as Black
persons or carry attitudes representing viewpoints that predominate or are held
more widely in their community than in society at large. Lewis admits that “[t]he
prosecutor without a doubt identified factors relating to each of the excluded
[prospective] jurors that made them less desirable from her perspective,” and that
her conduct “does not appear to be a vendetta against black skin per se.” But he
argues that when “a prosecutor strikes a minority [prospective] juror because [he
or she] has in fact had an experience or expresses an opinion reflective of the
minority perspective, the prosecutor cannot constitutionally seize upon that
experience or opinion as an ‘individualized’ reason for striking [him or her] . . . .
even if [his or her] attitude or experience might be . . . suggestive of a less
conviction-prone attitude than [that of] other jurors from different backgrounds.”
Under Batson, supra, 476 U.S. 79, and Wheeler, supra, 22 Cal.3d 258, a
party cannot assume in exercising its peremptories that because a prospective juror
belongs to a cognizable minority group, that person holds biased views common to
that group, and therefore is undesirable as a juror. (Batson, supra, at pp. 86, 91,
96, 97, 99.) But the prosecutor may excuse prospective jurors, including members
of cognizable groups, based on personal, individual biases those individuals
actually express. (Wheeler, supra, at p. 277 & fn. 18.) That is so even if the
biased view or attitude may be more widely held inside the cognizable group than
outside of it.
Batson and Wheeler are intended to limit reliance on stereotypes about
certain groups in exercising peremptory challenges. Defendants invoke Batson
and Wheeler to preclude the excusal of a member of a cognizable group who
expresses personal biases — and thus to foreclose individualized treatment of that
prospective juror — if the biases expressed are presumably common to that group.
Such an approach stands the law on its head, and promotes the very group
stereotyping that Batson and Wheeler forbid. A party does not offend Batson or
Wheeler when it excuses prospective jurors who have shown orally or in writing,
or through their conduct in court, that they personally harbor biased views.
3. Comparative Analysis
Defendants further seek to show the pretextual nature of the prosecutor’s
excusals of the Black prospective jurors by comparing their questionnaires and
voir dire responses with those of prospective jurors, both Black and non-Black,
whom the prosecutor did not challenge.12 Defendants present an array of
comparisons among the two groups in an effort to show that they were similarly
situated. Oliver emphasizes, though not to the exclusion of other factors,
prospective jurors’ attitudes toward then recent events involving the Rodney King
The King beating case lies in the background of the proceedings. On May
4, 1992, the trial court granted Oliver’s mistrial motion following the verdicts of
acquittal of police officers in that case, which involved the beating of Rodney
King, a Black man, and the subsequent “civil unrest in Los Angeles since April 29,
1992,” which included a well-publicized assault on Reginald Denny, a White man,
by rioters. On May 7, the court granted Lewis’s mistrial motion on the same
grounds, and dismissed the original jury venire as to both defendants. Because the
King beating case had so recently ended when the new venire was summoned,
some prospective jurors mentioned the case in answer to the questions, “What
serious criminal case have you followed in the media within the last five years?”
and “Do you feel justice was served[?]”
Defendants did not engage in a comparative prospective juror analysis in
the trial court. In earlier cases, we have declined to engage in comparative juror
analysis for the first time on appeal, stating that such an analysis was unreliable in
evaluating the prosecutor’s justifications for excusing minority prospective jurors.
Lewis now argues that the focus should be on Black men, rather than
Blacks of both genders. We note, however, that all of defendants’ motions at trial
were directed at the prosecutor’s peremptory challenges of Blacks, not Black men,
and the trial court responded in kind. It is not necessary for us to decide whether
the foregoing procedural posture results in a forfeiture of this aspect of the claim.
Whether or not it is preserved for review, individualized consideration of each
challenged prospective juror against those who were not challenged reveals that
the claim overall lacks merit, as we will explain.
(People v. Box, supra, 23 Cal.4th 1153, 1190; People v. Ervin (2000) 22 Cal.4th
48, 76; People v. Johnson (1989) 47 Cal.3d 1194, 1220-1221.) Since then, of
course, the United States Supreme Court has issued its decision in Miller-El v.
Dretke (2005) 545 U.S. 231 [125 S.Ct. 2317] (Miller-El), which conducts a
comparative juror analysis, albeit not on direct appeal.
In Miller-El, the United States Supreme Court held that, in the context of a
challenge of a Black prospective juror, the defendant had established purposeful
discrimination under Batson, supra, 476 U.S. 79, and was entitled to relief on that
ground in federal habeas corpus proceedings (28 U.S.C. § 2254). (Miller-El,
supra, 545 U.S. 231, __ [125 S.Ct. 2317, 2322].) In so holding, the high court
observed: “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.” (Id. at p. __ [125 S.Ct. at p. 2325].)
Assuming, without deciding, that comparative juror analysis must be
undertaken for the first time on appeal in the present case, we conclude that
defendants’ proffered analysis fails to demonstrate purposeful discrimination.
Defendants urge, in essence, that one of the prosecutor’s stated reasons for
excusing L.T., who said justice had not been served because the Rodney King
incident had been treated differently from the Reginald Denny incident, showed
evidence of pretext because the reason applied equally to prospective jurors M.C.
(a White man), A.R. (a White woman), M.R. (a Hispanic man), and M.J. (a Black
woman), whom the prosecutor did not challenge. They also assert that the
prosecutor asked no questions of M.C., A.R., or M.R. about the King beating case.
(See Miller-El, supra, 545 U.S. 231, __ [125 S.Ct. 2317, 2328]; id. at p. __, fn. 8
[125 S.Ct. at p. 2330] [failure to engage in meaningful voir dire on a subject a
party claims is important suggests the stated concern is pretextual].)
As will appear, however, none of the foregoing prospective jurors was
similarly situated to L.T. 13
M.C., A.R., M.R., and M.J. mentioned the Rodney King beating trial
verdicts on their questionnaires. Unlike L.T., who condemned the trial outcome as
the unjust product of a race-based double standard, who circled “no” on the
question asking whether justice was served and declined to explain why, and
whom the prosecutor accordingly evaluated as “strident . . . with respect to the
King case,” M.C. and A.R. believed that the trial’s outcome was a fair result and
gave written answers that obviated the need for follow-up questions on oral voir
dire. (See People v. Huggins (2006) 38 Cal.4th 175, 235 [failure to ask questions
of prospective jurors did not show any impropriety].)14
M.C. was a prospective alternate juror. In general, neither party questioned
prospective alternates as exhaustively as other prospective jurors. However, the
alternate jurors were not similarly situated for Batson-Wheeler purposes to the
jurors who were originally sworn to try the case. For the originally constituted
jury, each side (i.e., defendants together and the prosecution) was entitled to 30
peremptory challenges. (Code Civ. Proc., § 231, subd. (a).) The number of
available peremptory challenges to prospective alternate jurors was significantly
smaller. (See Pen. Code, § 1089, 2d par. [providing that each defendant in joint
trial receives “as many peremptory challenges to the alternate jurors as there are
alternate jurors called”].) Here, the court elected to have six alternate jurors,
giving each defendant six peremptory challenges. This number could have
affected voir dire strategy. To exhaust peremptory challenges on prospective
alternates who were less than ideal but marginally acceptable would have left the
defense with little recourse if they had been replaced by worse prospective
alternate jurors. Accordingly, counsel could reasonably have decided not to
challenge a prospective alternate juror even if counsel would have challenged a
person with similar views who was being considered for service on the originally
Lewis asserts that the prosecutor sometimes failed to examine one or more
prospective jurors on topics that she cited in excusing other prospective jurors, or
cited a reason for excusing one or more prospective jurors without citing the same
reason as to other prospective jurors whom she also excused. However, any such
(footnote continued on next page)
Specifically, M.C. wrote that although he was surprised at the verdict, the
jury in the Rodney King case “did its job” in acquitting the accused police
officers. He circled “yes” in answer to a question whether justice had been served.
A.R. criticized media sources that, in her view, manipulated her emotions in an
effort to make the verdict in the King case look “not just.” By inference, she felt
that it was just. Also, A.R. stated on her questionnaire that her opinions were
provisional, i.e., based on incomplete information and subject to change. A.R.
declined to circle either answer to the was-justice-served question and explained,
“I really cannot make a judgment[;] I was not in the court listening to the
evidence, even though the media exposed some facts.” Their answers were
markedly unlike those of L.T.
Also, the questionnaires and voir dire of M.C. and A.R. showed pro-
prosecution views that L.T. did not share or shared only in certain respects. In
general, during his brief voir dire as an alternate prospective juror, M.C. showed
willingness to support the prosecution’s position if the evidence warranted it, to be
open-minded and fair, and to follow the law. He understood and accepted the
concept of accomplice liability, and agreed that a nonshooter could receive the
(footnote continued from previous page)
disparity does not show a failure to engage in meaningful voir dire, and was not
necessarily improper. The prosecutor, using permissible criteria, may have made
up her mind about a prospective juror without venturing into a particular matter,
and/or may have found no need to comment later on every reason for challenging
a prospective juror. One inference that may be drawn from any such decision to
ask few or no questions is that the prosecutor had already properly determined that
a challenge was warranted based on the questionnaire or existing voir dire
answers, and that further questioning was unnecessary. Indeed, lawyers must use
their voir dire time judiciously, and should not be penalized for doing so.
death penalty.15 A.R. showed a willingness to follow the law and be open-minded
and fair to both parties, including the People. She said, for example, “I feel very
comfortable with weighing the mitigating and aggravating circumstances involved
in the penalty phase.” She had no problem with accomplice liability, even if it led
to imposing the death penalty on a nonshooter. She had a friend in a district
M.R. circled an answer that justice was not served in the King beating case,
but, like A.R., made clear that this was a tentative conclusion based on imperfect
information. He wrote that his view of the outcome was based on media accounts
and that “[p]erhaps if I knew all the facts or most of the fact[s] I could give a more
intelligent answer.” M.R. also indicated familiarity with the Reginald Denny
beating case but did not opine that justice was not served in that case. M.R.’s
responses were thus unlike those of L.T. in significant respects.
Also, the questionnaire and voir dire of M.R. showed pro-prosecution
views that L.T. did not share or shared only in certain respects. M.R. showed a
willingness to support the prosecution’s position if the evidence warranted it, and
generally to be fair, open-minded, and follow the law. He understood and
accepted the concept of accomplice liability, and agreed a nonshooter could
receive the death penalty. Expressing views that strongly contrasted with those of
That there were “isolated and discrete similarities” (People v. Huggins,
supra, 38 Cal.4th 175, 234) in the views of M.C. and L.T. does not make the two
prospective jurors similarly situated for comparative analysis purposes. (See id. at
p. 235.) As stated in the text, imposing equal criminal responsibility on an
accomplice who was not the actual killer did not trouble M.C. He volunteered on
his questionnaire, “Often without the aid of another the crime may not have taken
place.” L.T. gave a similar response. Nevertheless, as discussed in the text, L.T.’s
answers, viewed as a whole, were problematic in many respects that did not apply
L.T., M.R. wrote on his juror questionnaire, “I feel very confident & comfortable
with our Law Enforcement,” and opined, “I feel very strongly about our judicial
system. Without it we would be [in a] mess.” With regard to the death penalty, he
wrote that “the punishment should fit the crime.”
As for M.J., because she was Black, even if one of the prosecutor’s stated
justifications for striking L.T. applied to her, that is not evidence tending to prove
purposeful discrimination. (See Miller-El, supra, 545 U.S. at p. __ [125 S.Ct. at
p. 2325].) Moreover, although M.J. opined that the police officers in the Rodney
King beating case were guilty and that justice was not served, she generally held
pro-prosecution, pro-death penalty attitudes. She wrote on her questionnaire, “I
believe in the death penalty because I feel if you take a life that your life should be
taken also.” She added in response to another question on the death penalty, “I
just believe that a person will reap what they sow.” She would want anyone who
murdered one of her family members to receive the death penalty. She appeared to
be open-minded, fair, and willing to follow the law. Viewed as a whole, her
attitudes were markedly different from those of L.T., who believed that the justice
system was unjust.
In sum, a side-by-side comparison of the prospective jurors in question
reveals that they were not “similarly situated.” (Miller-El, supra, 545 U.S. 231, __
[125 S.Ct. 2317, 2329].)
Defendants further urge in essence that one of the prosecutor’s proffered
reasons for striking L.W., C.W., L.B., V.H., and N.S., i.e., that they had family
members or loved ones with criminal histories, applied equally to Prospective
Jurors A.C. (who was Black, and also Hispanic), M.C., V.R. (who was Hispanic),
T.F. (who was White), and M.J. But, as will appear, the prospective jurors were
not similarly situated.
As stated, A.C. and M.J. were Black, so defendants’ attempted comparison
is inapposite from the beginning. Even if one of the prosecutor’s stated
justifications for striking L.W., C.W., L.B., V.H., and N.S. applied to A.C. or M.J.,
that is not evidence tending to prove purposeful discrimination. (See Miller-El,
supra, 545 U.S. at p. __ [125 S.Ct. at p. 2325].)
In any event, a side-by-side comparison of the prospective jurors in
question reveals that they were not “similarly situated” (Miller-El, supra, 545 U.S.
231, __ [125 S.Ct. 2317, 2329]). A.C. was different in notable respects from the
aforementioned prospective jurors whom the prosecutor peremptorily challenged.
To be sure, A.C. stated that her brother had a criminal and gang-involvement
history, had been in prison for manslaughter, and later was killed in a drive-by
shooting, and yet the prosecutor did not peremptorily challenge her.
A.C. stated, however, that her brother had been treated fairly by the law and
that she had “no complaint,” which would give the prosecutor less reason to be
concerned about a relative’s criminal history, and although V.H. and N.S. voiced
similar sentiments, L.W., C.W. and L.B. did not. Also, A.C.’s brother had
committed the crime 25 to 35 years before she filled out the questionnaire, had
been released from prison decades ago, and had died in the drive-by shooting 25 to
30 years before she filled out the questionnaire. Thus, unlike the family members
of L.W., L.B., V.H., N.S., and possibly C.W., the criminal history of A.C.’s brother
was remote in time. A.C. distanced herself from her brother. She was not close to
him, and events involving him were “over with” and “done.”
More generally, and of paramount importance from the prosecutor’s point
of view, A.C. consistently appeared willing to impose the death penalty in a proper
case, unlike L.W., C.W., L.B., V.H., and N.S. (hereafter L.W. et al.), and yet to be
fair and follow the law. She wrote, “If the person is guilty they should [accept] the
punishment the law gives.” Her uncle was a sheriff in Louisiana. She had never
had any unpleasant experiences with law enforcement officers. She said she
would be able to impose the death penalty on a nonshooter in a capital crime under
a theory of accomplice liability.
As noted, M.C. was a prospective alternate juror. His brother was serving a
10-year sentence in Michigan for selling cocaine. M.C. offered only mild
criticism of his brother’s sentence, stating that it “[s]eems . . . long . . . .” On voir
dire, he said his brother, a habitual offender, was treated fairly. Despite the one
superficial commonality in the situations of M.C. and those of L.W. et al., those
prospective jurors were not similarly situated because, as stated above, M.C.
showed pro-prosecution views that differed from those of the other prospective
jurors in question, and he was an prospective alternate juror.
As for V.R.’s purported similar situation to L.W. et al., the record shows
that she also was not similarly situated to those other prospective jurors. To begin
with, she was a prospective alternate juror.
To be sure, two of V.R.’s six brothers had convictions for driving under the
influence, a relatively minor offense. Nonetheless, V.R. had vigorous pro-
prosecution views. She stated her brothers were treated fairly; in fact, she insisted
that they were guilty even though she predicted they would deny it. She showed a
willingness to follow the law and be open-minded and fair to both parties,
including the People, writing on her questionnaire, “I don’t believe in an eye for
an eye but if evidence shows premeditated guilt I do believe in [the] death
penalty.” “When a person plans another[’s] death they should think what is going
to happen to them.” “I think people should think twice before taking another[’s]
life. The higher power did not make them judge & jury.” She held these views
even though her church opposed capital punishment — a view she flatly rejected.
She accepted the concept of accomplice liability. In sum, V.R.’s pro-prosecution
views set her apart from L.W. et al. It is not surprising that the prosecutor did not
challenge V.R. She was not similarly situated to the prospective jurors in question
whom the prosecutor did challenge.
T.F. was another prospective alternate juror, which set her apart from L.W.
et al. Defendants note that T.F.’s former boyfriend had been convicted of driving
under the influence two years beforehand and that she had visited him in custody.
Defendants complain that the prosecutor asked no questions of T.F. about the
However, T.F. showed a pro-prosecution attitude that obviated any need to
do so. Both in her questionnaire and on voir dire, T.F. emphatically renounced her
former boyfriend. She wrote, “I feel that he was a potential danger, not only to
himself, but to the public while driving drunk and he deserved what he got.” She
said the same on voir dire. On her questionnaire, she wrote, “when a crime has
been committed that is so serious, such as taking someone else’s life, a punishment
must be reached that would stop that person from again committing that crime and
also serve justice for the families and victims left behind.” With regard to the
death penalty, she wrote, “I am a firm believer in what comes around must go
around.” She expressed a general willingness to follow the law and to be fair and
open-minded toward both parties, including the People. She believed in the
concept of accomplice liability sufficiently to volunteer in writing, “If the person
who aids knowingly is doing so and consents to helping — [he or she is] therefore
causing a crime,” and she could impose the death penalty on a nonshooter who
was an accomplice.
Again, it is not surprising that the prosecutor did not challenge T.F. She
was not similarly situated to L.W. et al. The same may be said of M.J., who, as
described, held pro-prosecution views, an attitude that set her apart in significant
respects from L.W. et al.
Lewis urges that a prospective juror whom the prosecutor did not challenge,
T.M., a Black woman, was similarly situated in numerous respects to K.B., whom
she did. For example, both had friends in law enforcement, both knew people who
had died by violence, and both were employed by well-established businesses.
Moreover, T.M., like L.W. et al., had a relative with a criminal history.
As is the case with M.J. and A.C., because T.M. was Black, even if one or
more of the prosecutor’s stated justifications for striking the other prospective
jurors in question applied to her, that is not evidence tending to prove purposeful
discrimination. (See Miller-El, supra, 545 U.S. at p. ___ [125 S.Ct. at p. 2325].)
In any event, in important respects the other prospective jurors in question were
not similarly situated to her. Although T.M.’s brother had been in custody for a
drug offense, she did not think he had been treated unfairly, and unlike the other
prospective jurors in question, she had pro-prosecution views. She wrote,
“Depending upon the nature of the crime I would be inclined to support the death
penalty. . . . I would support the death penalty for a mass murderer for sure.” She
had a friend in the Los Angeles County District Attorney’s Office. She understood
and accepted the concept of accomplice liability. Her views caused the defense to
peremptorily challenge her. Thus, the prosecutor could conclude that T.M. was
acceptable and not feel the same way about the other prospective jurors.16
Defendants further urge that S.P. (who was perceived as possibly Hispanic),
like V.H., had served on a jury that tried a criminal case, and yet the prosecutor did
not peremptorily challenge her or attempt to learn whether her jury voted to acquit
Lewis mentions that T.M. felt that justice had not been served in the
Rodney King beating case. That is true, but she explained that she felt that way
because “[t]he case was tried in the media before it came to trial.” This would
appear to be a view that favored law enforcement, even if it was not precisely pro-
prosecution with regard to that case.
the defendant, which was a stated reason for peremptorily challenging V.H. But
the two prospective jurors were not similarly situated. The charges in the case in
which S.P. participated consisted of trespassing and assault. She expressed a
willingness to be fair and open-minded toward both parties, including the People,
and was willing to follow the law, except that she would hold the prosecution to a
higher standard of proof than beyond a reasonable doubt in a capital case.17
Although the prosecutor stated she found V.H. acceptable until she learned
he voted to acquit another defendant of rape, and did not inquire about the verdict
S.P.’s jury returned, nevertheless the two were not similarly situated. As the
prosecutor emphasized, V.H.’s case involved rejecting the allegations of a woman
who had been the subject of a violent and felonious assault against her, whereas
the case S.P. heard does not appear on this record to have been similarly serious.
As described, the prosecutor stated of V.H. that his vote to acquit someone charged
with rape “shows that he was able to reject the prosecutor’s argument, reject the
People’s proof and reject the word of a woman. [¶] In this trial, we will have
women testifying to the history of abuse by one of the defendants. Their
believability and credibility will become crucial with this case.” The prosecutor’s
concern with prospective jurors who had served on rape trials extended to others.
On learning that M.J. had served on a jury trying a rape case, that the jurors
disagreed on the verdict, and that the disagreement centered on the alleged
victim’s credibility as a witness, the prosecutor wanted to know which way M.J.
had voted. Defense counsel objected and the trial court sustained the objection.
Nevertheless, the prosecutor asked numerous questions of M.J. concerning the
On the basis of S.P.’s views on the burden of proof, the prosecutor
challenged her for cause.
rape case jury on which she had previously served. On this record, S.P. does not
appear similarly situated to V.H.
We emphasize that, unlike the Black prospective jurors whom the
prosecutor peremptorily challenged, the unchallenged prospective jurors showed
by their questionnaires and voir dire answers that they were comfortable serving
on the jury, were open-minded and dedicated to following the law, including
possibly imposing the death penalty if the evidence warranted it, gave written
answers consistent with their oral voir dire, and did not appear to have difficulty
understanding questions. In conclusion, a side-by-side comparison of the Black
prospective jurors in question whom the prosecutor peremptorily challenged and
those, Black and non-Black, whom she did not reveals that they were not
“similarly situated.” (Miller-El, supra, 545 U.S. 231, __ [125 S.Ct. 2317, 2329].)
Defendants are not entitled to relief on the basis of a comparative prospective juror
analysis for the first time on appeal, assuming for purposes of discussion that such
an analysis is required.18
Lewis also relies on raw numbers, and argues that the prosecutor’s
peremptory challenges to seven out of eight Black male prospective jurors shows
that her explanations for the challenges were pretextual. (See Miller-El, supra,
545 U.S. 231, __ [125 S.Ct. 2317, 2340].) However, Lewis overlooks contrary
evidence in the record showing that the prosecutor had a legitimate reason, not
based on improper group bias, for challenging each one of the same prospective
jurors. Also, while the Miller-El court thought it fitting to note that “the State had
peremptorily challenged 12% of qualified nonblack panel members, but eliminated
91% of the black ones” (id. at p. __ [125 S.Ct. at p. 2340]), the use of raw statistics
was not a significant factor in its analysis. (People v. Huggins, supra, 38 Cal.4th
IV. GUILT PHASE ISSUES
A. Evidentiary Rulings (Lewis, Oliver)
Defendants claim numerous evidentiary rulings violated state law. Invoking
the Fifth, Sixth, Eighth, and Fourteenth Amendments, and parallel provisions of
the state Constitution, defendants assert related violations of their rights to due
process, to a reliable death sentence, and to confront and cross-examine witnesses.
Except for due process, the constitutional claims are forfeited. (Partida,
supra, 37 Cal.4th 428, 435.) No reversible error occurred under state law.
Over defense objection (noted in parentheses that follow), the trial court
admitted evidence during the guilt phase, that (1) Oliver was unemployed between
June 25 and July 4, 1989 (relevance); (2) Mizell might have shown Oliver an
album of family photographs (asked and answered); (3) Iva Worthen, Mizell’s
mother, learned from a witness to the arson of her car that a red Mustang was seen
nearby similar to the one defendants had rented (impermissible hearsay); (4)
Melvin Johnson’s daughter suffered psychological problems because she
witnessed the shootings in church (relevance); (5) Johnson’s daughter was too
upset for him to spend much time talking to police at the crime scene
(nonresponsive and irrelevant); (6) Vivian Worthen, after being prompted by the
prosecutor, thought that the shooter (i.e., Oliver) had looked at her for a couple of
seconds (leading); (7) Louise Holt learned that her daughter and Oliver had
quarreled (lack of personal knowledge); (8) Holt believed Oliver tried to flee from
the police as they sought to arrest him (relevance); (9) and (10) Detective Jerry
Lee Brooks spoke to Holt about her interaction with Oliver (impermissible
hearsay); (11) Detective Jerry Franklin Stephens learned about a conversation
between Detective Brooks and Holt (impermissible hearsay); and (12) Detective
Richard Aldahl spoke to Johnson about the identity of the shooter (impermissible
hearsay). Using the same chronology, we now address, and reject, challenges to
(1) The defense objected on relevance grounds (Evid. Code, § 350) to
Mizell’s testimony that Oliver was unemployed in the weeks before the capital
crime. However, Oliver’s work history prompted further questioning that showed
he was alone in Lewis’s home throughout the day, and had access to the wedding
album containing photographs of Mizell’s relatives — people he later targeted for
murder. Hence, such evidence served a foundational purpose. It also tended to
show that Oliver was dependent, emotionally and financially, on Lewis, and
thereby had a possible motive for helping Lewis harm his estranged wife and in-
laws. The court did not err in overruling the objection.
(2) The prosecutor asked Mizell whether she remembered showing Oliver
the photo album. She said she did not have a specific memory of doing so. The
prosecutor asked whether she might have done so. Defendants objected,
unsuccessfully, on the ground the question had been asked and answered. (Evid.
Code, § 765, subd. (a).) But the question whether Mizell might have shown Oliver
the album had not been asked at the time the objection was made. Only after the
trial court overruled the objection did Mizell answer that, indeed, she might have
shown Oliver the wedding album. No error occurred.
(3) Iva Worthen, Mizell’s mother, testified that the red Mustang Oliver drove
on July 19, 1989, after being ejected from Lewis’s house by the police, was
distinctive, because a neighbor had told Worthen that a similar car was used by the
person who torched Worthen’s Ford Tempo. Defendants objected on hearsay
grounds. (Evid. Code, § 1200, subds. (a), (b).) However, Worthen did not testify
about the truth of what her neighbor had seen, but about the reason she noticed and
remembered the red Mustang, i.e., a relevant state of mind. This was not
impermissible hearsay. (Id., § 1250, subd. (a)(2).) The court did not err in
overruling the defense objection.
(4) Melvin Johnson was waiting outside the church for his daughter and
niece to emerge when the capital crime occurred. Defense counsel questioned him
on his recollection of events, and he implied that it was better now than before,
when the police interviewed him. He had seen a newspaper article about the
murders, but his recollection was his own and his family did not discuss the
article. He denied that the family was trying to conceal exposure to the article.
On redirect examination, the prosecutor asked him why the family did not discuss
the article. Johnson explained that his daughter had been traumatized by
witnessing the murders, and that the family agreed not to discuss the case in her
presence. The court overruled a relevance objection. (Evid. Code, § 350.)
Since defense counsel impugned Johnson’s integrity, the prosecution was
entitled to rehabilitate him by showing that the Johnson family had a legitimate
reason for not mentioning the capital crime at home. The court did not err in
overruling the objection.
(5) As stated, defense counsel had asked Melvin Johnson about having a
better recollection of events at trial than during police interviews. Answering a
prosecution question on redirect examination whether a police officer had spent
much time with him at the crime scene, Johnson replied, “no.” He explained that
he and his family wanted to leave quickly, because his daughter was shaken by
what she had seen. Defense counsel objected to the answer as nonresponsive and
to follow-up questions as irrelevant. (Evid. Code, §§ 350, 766.) The trial court
overruled the objections. Johnson further testified that he and his wife entered the
church and found a grisly crime scene.
Again, the challenged testimony sought to refute a defense implication that
Johnson was inventing facts on the witness stand that he had not related to police
earlier. The daughter’s upset explained why Johnson did not linger at the crime
scene and provide police with as detailed an account as he gave in court. The
testimony was responsive and relevant. No error occurred.
(6) On direct examination, the prosecutor asked Vivian Worthen, the mother
of murder victim Patrinella Luke, whether the shooter faced her. She responded,
“He was looking right at me.” The prosecutor asked, “And that was for a period
of a couple [of] seconds?” The trial court overruled an objection that the question
was impermissibly leading. (Evid. Code, §§ 764, 767, subd. (a)(1).)
The Attorney General does not dispute that the objection should have been
sustained. Even assuming the trial court should have required the question to be
rephrased in open-ended form, any error was insignificant. Vivian Worthen did
not identify Oliver as the shooter despite the eye contact she described. Reversal
is not compelled. (See People v. Watson (1956) 46 Cal.2d 818, 836.)
(7) Louise Holt testified that Oliver and her daughter quarreled two days
after the capital crime, and that Oliver threatened to kill them at gunpoint.
Defendants objected that Holt lacked personal knowledge about the argument
(Evid. Code, § 702) because she did not know its nature. However, Holt did not
relay the content of the argument, but only that one occurred. The key point was
that Oliver reacted by displaying the murder weapon. The court did not err in
overruling the objection.
(8) Louise Holt testified that Oliver seemed to be attempting to avoid arrest
by jumping fences in the yard outside Lewis’s house shortly beforehand.
Defendants unsuccessfully objected on relevance grounds. (Evid. Code, § 350.)
There was no error in overruling the objection. Oliver’s apparent attempt to avoid
arrest bore on his consciousness of guilt.
(9) Defendants raised a hearsay objection during the testimony of Detective
Jerry Lee Brooks. (Evid. Code, § 1200, subds. (a), (b).) Previously, defense
counsel had challenged Louise Holt on the consistency of her prior statements
about the kind of gun Oliver displayed. Detective Brooks testified that Holt told
him it was a shotgun — a statement consistent with her testimony that it could
have been a shotgun. The out-of-court statement was admissible as a prior
consistent statement. (Evid. Code, §§ 791, 1236.) The trial court properly
overruled defendants’ objection.
(10) The defense made another hearsay objection to Detective Brooks’s
testimony when he indicated that Holt never mentioned the possibility of receiving
a financial reward for helping to apprehend the murderers. The court did not err in
overruling the objection. The evidence bore on a relevant mental state, namely,
Holt’s apparent lack of knowledge of any reward that might have tainted her
cooperation with police.
(11) Defendants registered a hearsay objection (Evid. Code, § 1200, subds.
(a), (b)) to the testimony of Detective Jerry Franklin Stephens. Detective Stephens
confirmed that Louise Holt, when speaking with Detective Brooks, said she saw a
gun that may have been a shotgun. Also, Detective Stephens was allowed to
testify, without a defense objection, that Holt said someone had the nickname of
“Lotto.” Oliver speculates that the jury might have wondered if it was his gang
moniker, even though Detective Stephens also testified he had no idea to whom
the pseudonym belonged.
For the reasons stated in item (9), Detective Stephens’s testimony about the
gun was admissible as relating a prior consistent statement. (Evid. Code, §§ 791,
1236.) The trial court did not err in overruling defendants’ hearsay objection. As
for the reference to someone named “Lotto,” we agree with the Attorney General
that the claim is forfeited because defendants failed to object to this evidence.
(Evid. Code, § 353, subd. (a).) In any event Detective Stephens had no idea to
whom the nickname referred. Oliver’s suggestion that it disparaged him in front
of the jury is speculative and meritless.
(12) Detective Richard Aldahl testified that Melvin Johnson told him he
could not identify Oliver in a photographic lineup. Defendants objected to this
testimony as impermissible hearsay. (Evid. Code, § 1200, subds. (a), (b).)
However, Johnson’s admission to police that he could not identify Oliver before
trial benefited Oliver. Any error in its introduction was harmless. (See People v.
Watson, supra, 46 Cal.2d 818, 836.)19
Defendants further argue that the introduction of extrajudicial statements
made to Detectives Brooks, Stephens, and Aldahl by Louise Holt about Oliver and
his shotgun, and by Melvin Johnson about the photographic lineup, violated the
confrontation clause, as construed by Ohio v. Roberts (1980) 448 U.S. 56. We
reiterate that defendants have forfeited this confrontation clause claim by failing to
raise it below. (Partida, supra, 37 Cal.4th 428, 435; e.g., People v. Alvarez (1991)
14 Cal.4th 155, 186.) In any event, the claim lacks merit. In Crawford v.
Washington (2004) 541 U.S. 36 (Crawford), the high court repudiated Ohio v.
Roberts, supra, 448 U.S. 56, which had permitted hearsay evidence in criminal
cases if it fell within a traditional exception or was particularly trustworthy. (See
People v. Roldan (2005) 35 Cal.4th 646, 711, fn. 25; People v. Harrison (2005) 35
Cal.4th 208, 239; People v. Combs (2004) 34 Cal.4th 821, 842; People v.
Monterroso (2004) 34 Cal.4th 743, 763-764.) Crawford held that “testimonial”
statements, including at least some “police interrogations,” are barred under the
Sixth Amendment unless the declarant is “unavailabl[e]” and the defendant had “a
prior opportunity for cross-examination.” (Crawford, supra, 541 U.S. 36, 68; see
id. at pp. 52, 53 & fn. 4, 54.)
Neither Holt’s nor Johnson’s extrajudicial statements implicate Crawford’s
confrontation concerns. According to Crawford, the reliability of testimonial
hearsay is best established by “the crucible of cross-examination.” (Crawford,
supra, 541 U.S. at p. 61.) While Crawford literally says there must be both
“witness unavailability” and a “prior opportunity for cross-examination” (id. at p.
68, italics added), we do not read it to mean that the extrajudicial statements of
declarants who are available for current cross-examination must be excluded.
Where the declarant is unavailable at trial, the prosecution cannot admit such
evidence against the defendant unless the defendant previously had the chance to
test its veracity in an adversarial setting. But Crawford cannot reasonably be
(footnote continued on next page)
B. Motions for Mistrial (Lewis, Oliver)
Defendants claim the trial court erred under state law by failing to grant
three mistrial motions during the guilt phase. Oliver asserts related violations of
his due process rights under the Fifth Amendment, of his Sixth Amendment rights
generally, of his Eighth Amendment right to a reliable penalty determination, and
of his rights under parallel provisions of the state Constitution. Lewis claims the
trial court violated his Fifth Amendment right to due process, his Sixth
Amendment right to conflict-free counsel, and his Eighth Amendment right to be
free from cruel and unusual punishment. Lewis further complains about the
court’s failure to “control all proceedings during the trial” under section 1044.
Except for due process, the constitutional claims and the section 1044 claim
are forfeited. (Partida, supra, 37 Cal.4th 428, 435.) No state law error occurred.
Oliver faults the trial court for denying two mistrial motions he made on a
single day, January 28, 1993, during the prosecution’s case-in-chief. The first one
followed testimony by Vivian Worthen, the mother of murder victim Patrinella
Luke. As Worthen left the witness stand, she made a disparaging comment to
Oliver. William Turner, Oliver’s counsel, heard her call him a “dirty black dog”
or “you mad dog.” From five feet away, Richard Leonard, Lewis’s counsel, heard
(footnote continued from previous page)
understood as barring such evidence where the declarant was available for that
purpose at trial, and the defendant could have cross-examined him.
Such is the case here. Holt and Johnson testified in the capital trial, and
were subject to cross-examination about their role in the case. It would serve no
purpose, and would be absurd, to bar their statements even though they were not
“unavailable” within the meaning of Crawford. In any event, Holt’s statements
merely augmented other incriminating evidence, including the Savage shotgun
itself. As noted above in the text, Johnson’s admission to police that he could not
identify Oliver before trial benefited Oliver.
her call Oliver “you mad dog.” The bailiff said he thought Worthen had called
Oliver a “dog.” Oliver’s counsel moved for a mistrial because he assumed the jury
heard the comment and would be prejudiced against Oliver. Counsel also asked
the court to inquire of the jurors whether they had heard Worthen’s comment.
A motion for mistrial should be granted only when a party’s chances of
receiving a fair trial have been irreparably damaged. (People v. Ayala (2000) 24
Cal.4th 243, 284.) We review a ruling denying a motion for mistrial for abuse of
discretion. (Id. at p. 283.) None appears here. The trial court reasonably found
that the comment added nothing to what the jury knew — that Worthen scorned
Oliver because she saw him gun down her daughter in church. In addition, the
court and the prosecutor both said they had not heard Worthen’s comment. The
court was closer to Worthen at the time than was the jury. Richard Leonard opined
that he did not think the jury heard the comment. The court could reasonably
conclude that the jury never heard the comment. Oliver maintains the court should
have asked the jury about the effect of the comment. However, such an approach
might have highlighted the incident, which was otherwise quite minor. We find no
abuse of discretion.
Oliver personally (and not through counsel) made a second mistrial motion
on January 28, 1993. He blurted out the word “mistrial” after another prosecution
witness, Louise Holt, testified that he was “uglier” than he used to be. At the time,
Holt was answering a defense question about changes in Oliver’s appearance since
the crimes. Holt insisted that she meant what she said, and that she was not
deriding Oliver gratuitously.
However, counsel never requested any relief based on Holt’s remark. The
court’s failure to address Oliver’s spontaneous personal reaction was not
unreasonable. In any event, Holt’s remark did not concern Oliver’s criminal
culpability or moral character. It did not risk an unfair trial, or warrant a mistrial.
Next, both defendants claim the trial court erred in not granting their motion
for mistrial on February 2, 1993, the day after they assaulted counsel in court and
disrupted the prosecution’s case. In the alternative, Oliver suggests the trial court
should have excused multiple jurors because the incident had turned them against
him. We disagree.
In People v. Williams (1988) 44 Cal.3d 1127, we affirmed the judgment in the
face of a claim that disruptive courtroom conduct had prejudiced the jury. (Id. at
pp. 1155-1157.) “As a matter of policy, a defendant is not permitted to profit from
his own misconduct.” (Id. at p. 1156.) We adhere to that commonsense view here.
Defendants may not complain on appeal about the possible effect on jurors of their
own calculated misdeeds. (People v. Arias, supra, 13 Cal.4th 92, 148; People v.
Pride, supra, 3 Cal.4th 195, 253-254; People v. Hendricks (1988) 44 Cal.3d 635,
643; see People v. Hines (1997) 15 Cal.4th 997, 1054; see also People v. Gomez
(1953) 41 Cal.2d 150, 162.) Defendants’ reliance on Fain v. Superior Court
(1970) 2 Cal.3d 46 is misplaced for reasons Fain itself explains. “A defendant
should not be permitted to disrupt courtroom proceedings without justification
[citation] and then urge that same disruption as grounds for a mistrial.” (Id. at
Defendants also assert that the trial court failed to adequately probe for juror
bias, erred in retaining one juror, L.S., who at one point said he was unsure he
could continue to be unbiased, and improperly told jurors to avoid discussions
Lewis implies that because Oliver actively participated in the assault, Lewis
was not solely responsible and should not suffer the consequences on appeal of
misconduct that was not his alone. We find no merit in the contention. Lewis
started the attack and Oliver joined in. Had Lewis not launched the assault on his
own counsel, Oliver might not have followed suit and the entire incident might not
with outsiders by lying about having seen the assault. As to the last point,
defendants failed to object to the comment and thus have forfeited the claim.
(People v. Monterroso, supra, 34 Cal.4th 743, 759.) Overall, the remedial steps
taken by the court adequately addressed defendants’ concerns. The court
accommodated defendants’ request to ask jurors whether they could be fair or had
heard press accounts. Examinations were conducted of individual jurors who
thought the incident might have affected them. At defendants’ request, the court
excused the one juror injured when the courtroom was hastily evacuated.
Defendants did not seek to remove L.S., whose answers showed that he
fundamentally remained impartial and would not be more inclined to find
defendants guilty or to prejudge penalty. Indeed, the court said of L.S., “[f]or the
record, [he] is a young Black male. He strikes me as being very honest and if he
says he can put it aside, I believe him.” This record gives us no reason to doubt
the court’s conclusion.
C. Shackling Orders (Oliver)
Oliver maintains the trial court violated People v. Duran (1976) 16 Cal.3d
282 (Duran), when it ordered (1) a leg brace on April 20, 1992, several months
before trial began, and (2) a leg-waist-and-wrist chain on February 2, 1993, the
day after Oliver joined Lewis in attacking counsel in court. Oliver claims the
decision to restrain him before trial, and to impose heavier restraints after the
midtrial assault, violated his rights generally under the Fifth, Sixth, and Fourteenth
Amendments, and under parallel provisions of the state Constitution. He asserts
that the court’s rulings had the additional legal consequence of violating his due
process rights under the Fifth Amendment.
Except for due process, the constitutional claims are forfeited. (Partida,
supra, 37 Cal.4th 428, 435.) No state law error occurred.
Under Duran, supra, 16 Cal.3d 282, a criminal defendant may be subjected
to physical restraints in the jury’s presence upon “a showing of a manifest need for
such restraints.” (Id. at pp. 290-291; see People v. Mar (2002) 28 Cal.4th 1201,
1216-1217.) This requirement is satisfied by evidence that the defendant has
threatened jail deputies, possessed weapons in custody, threatened or assaulted
other inmates, and/or engaged in violent outbursts in court. (People v. Combs,
supra, 34 Cal.4th 821, 837-838 [psychologist found defendant was “a serious
suicidal and homicidal risk” and prosecutor stated he had possessed two shanks in
jail and threatened jail deputies]; People v. Medina (1995) 11 Cal.4th 694, 730
[prosecutor stated defendant had a history of attempted and completed escapes and
of violent conduct in the courtroom and in custody]; People v. Hawkins (1995) 10
Cal.4th 920, 943-944 [defendant had a history of criminal violence and court
security advised that he had been violent in jail]; People v. Stankewitz (1990) 51
Cal.3d 72, 95-97 [court security advised that defendant had attempted to escape
from a holding cell and engaged in violent conduct in the courtroom and in
custody, and was planning to escape again and to shoot sheriff’s deputies;
defendant also threatened the trial judge and bailiffs].)
The trial court’s decision to physically restrain a defendant cannot be based
on rumor or innuendo. (People v. Combs, supra, 34 Cal.4th 821, 837.) However,
a formal evidentiary hearing is not required. (People v. Medina, supra, 11 Cal.4th
694, 731.) A shackling decision will be upheld absent a manifest abuse of
discretion. (Duran, supra, 16 Cal.3d 282, 293, fn. 12.)
On appeal, as at trial, Oliver claims there was no “manifest need” under
Duran and its progeny, for the restraints he endured. He faults the court for not
holding a formal hearing in which witnesses were required to testify under oath as
to whether he presented a credible threat of violence in the courtroom. Oliver also
claims the court failed to consider less onerous restraints.
However, contrary to what Oliver implies, the trial court invoked Duran at
both shackling hearings. At the hearing on April 20, 1992, the court cited credible
reports that Oliver had attacked another inmate with a typewriter and threatened to
kill deputies. It added, “I’ve seen his demeanor here in court. This is not a
compliant person.” The court followed the advice of the sheriff’s department and
ordered a leg brace, noting that it would be less visible and noisy than chains. The
court also believed that a leg brace would allow fewer deputies to be present in
court. Later, on February 2, 1993, when it ordered additional restraints, the court
stressed that the leg brace had not prevented Oliver from attacking counsel. The
court properly found, based on its own observations, that Oliver was dangerous in
the courtroom. It did not need to summon outside witnesses to resolve the
shackling question. No abuse of discretion occurred.21
D. Marsden Claim (Lewis)
Lewis complains the trial court erred in denying his Marsden motion, and
in not giving him an adequate opportunity to show that counsel should be
replaced. He also argues that the court’s actions had the additional legal
consequence of violating his due process rights under the Fifth Amendment and
the state Constitution. A claim of deficient representation also is raised under the
Sixth Amendment and the state Constitution.
Oliver also claims article 5 of the Universal Declaration of Human Rights
prohibited the physical restraints he wore before and during trial. However, as
noted in the text, the trial court’s shackling orders did not violate applicable state
or federal law. Oliver fails to show how international law differs from domestic
law on this issue. The claim therefore lacks merit. (See People v. Blair (2005) 36
Cal.4th 686, 755 [defendant establishes no violation of international law absent
any federal or state violation compelling reversal of death judgment]; accord,
People v. Hillhouse (2002) 27 Cal.4th 469, 511.)
As previously described, the issue arose on February 2, 1993, near the close
of the prosecution’s case at the guilt phase, and the day after the assault on counsel
that Lewis initiated in the courtroom. By then, Richard Leonard had represented
Lewis as either counsel or advisory counsel for over two years. Between
December 14, 1990, and January 4, 1993, Lewis had twice assumed, and then
relinquished, in propria persona status. On December 14, 1990, he assumed in
propria persona status. On April 20, 1992, he relinquished it. On June 5, 1992, he
again assumed in propria persona status. On January 4, 1993, he again
relinquished it. Two days later, on January 6, 1993, shortly before jury selection
began, James Leonard became cocounsel to Richard Leonard.
In the Marsden hearing Lewis complained that counsel did not accept his
innocence, did not visit him sufficiently, and had caused Jeanett Hudson to
become a witness against him, harming his alibi defense. He said that he did not
trust counsel and would not cooperate with them. He also cited the “big
confrontation” in court the previous day.
Richard Leonard replied that he had visited Lewis “at least once a week for
the last two years,” felt comfortable representing him, and harbored no lingering
resentment over the assault. James Leonard acknowledged that Lewis had acted
badly and pushed him the preceding week. However, James Leonard also felt no
resentment and could continue representing Lewis.
The trial court allowed Lewis to respond to counsel’s arguments, including
Richard Leonard’s claim that he regularly visited Lewis. Lewis ended the
exchange by twice refusing to say anything further. He also refused to attend trial
the next day.
In denying the Marsden motion, the trial court noted that Lewis generally
appeared to be cooperating with his attorneys in court, and that the prosecution
was almost done presenting its case. The court praised counsel as being
“professional” and “the best you can get.” The court also commented on Lewis’s
apparent attempt to “generate” conflict and distrust by physically attacking
counsel “late” in the case. Lewis did not dispute those observations.
No abuse of discretion occurred. In particular, we reject Lewis’s claim that
the trial court denied him an adequate opportunity to show the need for
replacement counsel. The court also did not summarily resolve factual disputes
against him (e.g., the number of counsel’s jail visits). The court apparently viewed
the Marsden motion — much like the courtroom assault — as a last-ditch effort to
delay the jury verdict, and as having little bearing on the attorney-client
relationship. Indeed, the court emphasized that, aside from the brawl, Lewis had
largely cooperated with, and behaved well toward, counsel. We see no basis on
which to disturb the ruling on appeal. (See People v. Whitt (1990) 51 Cal.3d 620,
659 [defendant’s delay in expressing dissatisfaction with counsel gave the court
“reasonable grounds to question the sincerity of his current criticisms”].)
E. Motions for Continuance (Oliver)
Oliver contends the trial court violated state law in denying his various
requests for a continuance during the guilt phase. He claims the rulings had the
additional legal consequence of violating his right to due process under the Fifth
Amendment and the state Constitution, and to effective representation under the
Sixth Amendment and the state Constitution. We disagree.
For context, we note that Oliver first moved for a continuance on Monday,
February 8, 1993. Such motion occurred one week after defendants’ assault on
counsel (which happened on February 1, 1993), and four days after the
prosecution rested its case on Thursday, February 4, 1993.
Of relevance here is that on Thursday morning, February 4, the trial court
asked Lewis’s counsel if he was ready to proceed. Counsel for Lewis replied he
would be ready on the following Monday morning, i.e., February 8. Oliver’s
counsel said he would be “ready when [Lewis’s counsel] finishes.” Lewis’s
counsel informed the court that his case-in-chief would take “at the most . . .
probably a day.” Thus, before noon on Thursday, Oliver’s counsel knew that he
must be ready to present his case on Monday, because Lewis’s case might take less
than an entire day.22
That Monday, February 8, 1993, Oliver’s counsel broke his promise to begin
calling witnesses. He did so even though the trial court granted multiple recesses
to allow him to call and find them, or to otherwise decide how to proceed. Lewis
had just concluded his case. Lewis decided not to testify, and Lewis’s counsel
could not locate his sole other witness, Larry Brown, the parishioner accosted by
defendants outside the church. At that point, counsel for Oliver volunteered that
his client also considered Brown “an essential witness in our case,” but admitted
that Oliver had never served him. The court observed that “[t]his case is three
years old. Do you expect me to sit and wait for another three years on the chance
he might come in?”
It was at this juncture that Oliver’s counsel announced that, despite his
promise to be ready when Lewis’s case concluded, he was not prepared to
proceed. Oliver’s counsel admitted he had not decided whether Oliver should take
the stand, the first of several such equivocations by Oliver’s counsel or Oliver
himself. The trial court proposed doing an in limine hearing on another witness
for Oliver, one Shon Yokely. Oliver’s counsel agreed, but then moved for a
continuance so that he could start presenting evidence to the jury on the following
day. The court denied the motion, saying: “No, sir. That’s not going to
On the following Monday, Lewis’s counsel said he had anticipated his case-
in-chief would take the full day. But that is not what he told the court and counsel
for Oliver on the preceding Thursday.
happen. . . . Mr. Turner, you were on notice we would be starting today. [¶] You
had the weekend plus the entire day Friday plus almost an entire day on Thursday.
We are proceeding today.” Oliver’s counsel started to make excuses about the
nonappearance of certain witnesses.
The trial court and Oliver’s counsel attempted to begin the in limine hearing
on Shon Yokely, the previously mentioned witness for Oliver. Yokely entered the
courtroom. Oliver’s counsel then announced that Yokely was awaiting sentencing
elsewhere in the courthouse and, exercising his Fifth Amendment rights, might not
wish to testify. Oliver’s counsel had not called Yokely’s counsel to ensure that
Yokely would testify. Yokely said, “I plead the Fifth,” and refused to testify.
Oliver’s counsel complained that the court had not given him enough time to
interview Yokely. The court reminded him that he had had several days in which
to do so.
At that point, Oliver’s counsel renewed his request for a one-day
continuance. The court again denied the motion. Oliver’s counsel mentioned
fingerprint expert Lee Smith, another witness he planned to present on Oliver’s
behalf. The court inquired whether Smith had been subpoenaed. Oliver’s counsel
admitted that he had not done so, offering instead that “I talked to him on the
phone Thursday” and he “expressed to me he would be here tomorrow.” The trial
court said that, without a subpoena, it would not find good cause to grant a
After making some phone calls, Oliver’s counsel again moved for a
continuance. The trial court again denied the motion. Oliver’s counsel asked
again some minutes later, and the court answered, “You had two years. You don’t
have the rest of the day. Don’t ask me again, I am not going to let you have a
Eventually, during the course of the morning, Oliver’s counsel located his
witnesses, namely Maggie Crenshaw, Patricia James, and Lee Smith. He
presented their testimony later that day. The court also allowed Oliver to reopen
his case-in-chief on Tuesday, February 9, 1993, following the prosecution’s
rebuttal case, to present the testimony of Larry Brown. As noted, Brown was the
witness Oliver’s counsel had described as essential, but who had not been located
on Monday or served with a summons. The court indicated that it was willing to
let Oliver present a second witness during his reopened case-in-chief, one Maurice
Rhodes. However, Oliver’s defense team still had not been able to find Rhodes.
We review a ruling on a motion for a continuance for an abuse of discretion.
(People v. Wilson (2005) 36 Cal.4th 309, 352; People v. Howard (1992) 1 Cal.4th
1132, 1171-1172.) In order to show the court abused its discretion in denying a
continuance in the midst of trial, the defendant must demonstrate, among other
things, that he diligently attempted to secure the attendance of witnesses.
(Howard, supra, at p. 1171.) Far from being diligent, the efforts of Oliver’s
defense team to subpoena and ensure the attendance of witnesses were tardy and
inadequate. Yet, the trial court accommodated Oliver by allowing him to reopen
his case to present the testimony of Larry Brown, a witness Oliver was
inexplicably unprepared to call earlier, when he knew his case was set to begin.
In sum, Oliver’s counsel was not ready to proceed at the promised time
despite ample notice and opportunity to do so. However, the trial court’s response
to the problem did not cause him to lose valuable witnesses as a result. Contrary
to Oliver’s further claim, the court’s denial of a continuance did not impair his
right to testify. Both Oliver’s counsel and Oliver himself repeatedly declined to
say on February 8, 1993, that Oliver would testify. The court never stated or
implied that Oliver could not exercise that right if he chose to do so.
As for the ineffective assistance claim, it has not been sustained. Even
assuming counsel’s performance was constitutionally deficient, it appears Oliver
presented all witnesses available to him. He does not indicate what additional
evidence, if any, he would have presented on his own behalf had counsel behaved
differently. There was no reasonable probability of an adverse effect on the
outcome. (Strickland v. Washington, supra, 466 U.S. 668, 687-688, 694.)
F. Instructions on Uncharged Criminal Acts (Oliver)
Defendants have argued on appeal that evidence of uncharged crimes was
wrongly admitted to show their violent character and disposition. We now address
Oliver’s related contention that the trial court failed to adequately instruct the jury
on how to evaluate such evidence. Oliver claims as an additional legal
consequence that his due process rights were violated under the Fifth and
Fourteenth Amendments, and under parallel provisions of the state Constitution.
The trial court instructed the jury that it could consider whether Lewis
made “threats” against Mizell. However, the instruction also stated that such
evidence was not admitted against Oliver and could not be considered against him.
The court also gave an instruction closely conforming to the standard instruction,
CALJIC No. 2.50 (5th ed. 1988), on the manner in which the jury generally was to
evaluate the other-crimes evidence admitted against one defendant or both.
Specifically, the evidence could not be considered for dispositional reasons, but
solely to establish intent, identity, knowledge, or means to commit a crime. (See
Evid. Code, § 1101, subd. (b).)
Oliver mainly argues that in four of the five incidents in which Lewis
abused Mizell and threatened to kill her and her family, the evidence showed that
Lewis not only made “threats,” but also engaged in physical violence. Thus,
according to Oliver, the instruction’s limiting command to consider incidents
involving “threats” solely against Lewis left the jury free to consider four out of
the five violent incidents against Oliver as well.
Oliver has forfeited this claim. Because he did not seek clarification of the
instructions concerning the “threats” and uncharged acts, he cannot complain
about their lack of clarity on appeal. (People v. Coffman and Marlow, supra, 34
Cal.4th 1, 122.)
Also, no error occurred. The instruction’s reference to threats was not
misleading, confusing, or incomplete. The jury could not have misapplied the
instruction to Oliver’s detriment. In the five incidents in question, namely, that
Lewis threatened to kill Mizell with a knife and nicked her with it in September
1988, threatened to kill her and choked her in February 1989, threatened to kill her
and held a knife to her throat in an alley in March 1989, assaulted and threatened
to kill her in June 1989, and threatened to kill her on July 18, 1989, after she
moved out, the testimony focused on Lewis’s threats, whether or not those threats
were made more real to Mizell by Lewis’s use of physical violence. More to the
point, there was no evidence that Oliver was present during any of the incidents in
question. Hence, the jury had no basis on which to attribute Lewis’s violent
conduct to Oliver.
G. Hastening the Verdict (Lewis, Oliver)
Defendants contend the trial court hastened jury deliberations and coerced
the guilt verdicts in violation of state law. In addition, defendants claim they were
denied due process under the Fifth Amendment, an impartial jury under the Sixth
Amendment, and a reliable penalty determination under the Eighth Amendment.
Violations of analogous state constitutional rights also are alleged. For reasons we
explain, all claims are procedurally barred and lack merit.
Defendants maintain that the trial court improperly suggested to the jurors
that if they did not complete deliberations by February 11, 1993, they would have
to continue them during the week of February 15. The record indicates that
Friday, February 12, was the Lincoln’s Birthday holiday, and that Monday,
February 15, was the Presidents’ Day holiday. The court had told jurors
previously that trial would be in recess from February 12-19.
However, on February 4, the court responded to a report that a recent
appellate decision had held that to interrupt deliberations would constitute
reversible error even with counsel’s consent. Hence, the court alerted the jury that
it might have to continue with trial if deliberations began before the holiday
period. The court asked the jurors if continuing to deliberate would cause any
scheduling problems. Two jurors spoke up. One said that she needed to go to
Sacramento on Friday, February 19. The court stated that doing so presented no
problem, because court would not be in session that day even if deliberations
continued during the holiday week. Another juror said she had made travel plans
for the week of February 15. On February 9, however, before deliberations began,
and hence before any pressure to hasten a verdict could emerge, the court stated
that the juror had resolved the scheduling conflict, presumably by altering her
travel plans. The jury reached its verdict on February 11, 1993, and thus did not
have to work through the holiday week.
As a threshold matter, we note that the court and counsel discussed the
handling of this matter outside the jury’s presence beforehand. Counsel did not
object to the court’s approach. Counsel on both sides said they had “no problem”
with it. Because defendants did not object to the trial court’s comments regarding
scheduling, they have forfeited their state law claim that it interfered with the
jury’s deliberations and coerced a verdict. (See People v. Cleveland, supra, 32
Cal.4th 704, 754.) They also have forfeited their related constitutional claims.
(Partida, supra, 37 Cal.4th 428, 435.)
In any event, no impropriety occurred. (See People v. Beeler (1995) 9
Cal.4th 953, 989-990; cf. People v. Anderson (1990) 52 Cal.3d 453, 469.) The
first juror in question was not forced to choose between deliberating and traveling.
The second juror — who might have been forced to make such a choice if
deliberations had continued past February 11 — chose before deliberations began
to give deliberations priority, and apparently altered her travel plans. Hence that
juror could not have felt pressured to reach a verdict. We reject defendants’ claim.
H. Absences Before and During the Guilt Phase (Oliver)
Oliver claims the trial court violated his statutory and constitutional rights
to be present at the proceedings, primarily by allowing the guilt verdict to be read
on February 11, 1993, while he was hospitalized after being stabbed by another
inmate. Oliver cites Penal Code sections 977, 1043, and 1148. He also invokes
the Fifth, Sixth, Eighth, and Fourteenth Amendments, as well as parallel
provisions of the state Constitution.23
“Under the Sixth Amendment’s confrontation clause, a criminal defendant
does not have a right to be personally present at a particular proceeding unless his
appearance is necessary to prevent ‘interference with [his] opportunity for
effective cross-examination.’ [Citations.] [¶] Similarly, under the Fourteenth
Amendment’s due process clause, a criminal defendant does not have a right to be
The court and counsel debated whether, “in the interest of justice,” section
1148 required that “the verdict be received in [Oliver’s] absence.” (Ibid.) Counsel
indicated that Oliver must personally waive his right to presence, but identified no
supporting constitutional theories. We nevertheless assume that the constitutional
claims raised on appeal are preserved. Whether the constitutional right to presence
may be lost by failing to object on that ground at trial is “close and difficult.”
(People v. Champion, supra, 9 Cal.4th 879, 908, fn. 6; see People v. Edwards
(1991) 54 Cal.3d 787, 809-810; People v. Arias, supra, 13 Cal.4th 92, 146-148;
People v. Robertson (1989) 48 Cal.3d 18, 59-61.)
personally present at a particular proceeding unless he finds himself at a ‘stage . . .
that is critical to [the] outcome’ and ‘his presence would contribute to the fairness
of the procedure.’ [Citation.] [¶] Under section 15 of article I of the California
Constitution, a criminal defendant does not have a right to be personally present
‘either in chambers or at bench discussions that occur outside of the jury’s
presence on questions of law or other matters as to which [his] presence does not
bear a “ ‘ “reasonably substantial relation to the fullness of his opportunity to
defend against the charge.” ’ ” ’ [Citations.] [¶] Lastly, under sections 977 and
1043 of the Penal Code, a criminal defendant does not have a right to be
personally present where he does not have such a right under section 15 of article I
of the California Constitution.” (People v. Waidla (2000) 22 Cal.4th 690, 741-
Oliver insists the trial court erred in having the verdict read in court while
he was in the hospital recovering from injuries received in the jailhouse attack.
Oliver suggests that the court lacked sufficient information to decide the issue, and
that it should have either waited for his full recovery or received the verdict in his
hospital room. In Oliver’s view, the verdict is a nullity.
The claim lacks merit under state law. Invoking section 1148, the trial
court determined that “the interest of justice” required departure from the general
rule that the verdict must be “received” in “the presence of the defendant.” (Ibid.)
Under any applicable standard, the ruling was substantiated and sound. The court
learned during jury deliberations that Oliver was “in very critical condition with
numerous stab wounds.” When the jury later announced it had reached a verdict,
the court knew that his condition was still dire and that he was in an intensive care
unit. The length of Oliver’s incapacitation could not be known at the time.
Hence, a delay in announcing the verdict might have disrupted the proceedings or
resulted in the loss of jurors. Nor can the court be faulted for not transferring the
proceedings to Oliver’s hospital room. That step might have been futile. Counsel
described Oliver as “comatose” at the time. No state law violation occurred.
We reach the same result as to Oliver’s due process and related claims.
Assuming without deciding that there is a constitutional right to presence at the
reading of the guilt verdict, none of the cases cited by Oliver addresses whether
such right is subject to an interest-of-justice exception analogous to the one
applied here under section 1148. (See Rice v. Wood (9th Cir. 1996) 77 F.3d 1138,
1140-1141, fn. 2 (en banc) [noting that existence and scope of constitutional right
to presence when capital jury announces sentence is “an open question”].)
Consistent with due process principles, we conclude that the trial court properly
determined that any constitutional right to presence was not absolute, and that —
in the interest of justice — the verdict could be read while Oliver was physically
incapacitated and unable to attend court following a third party assault. (See, e.g.,
People v. Richards (N.Y. Sup. Ct. 1988) 140 Misc.2d 567 [531 N.Y.S.2d 474]
[holding that verdict taken in defendant’s absence did not offend federal
Constitution where he was hospitalized with gunshot wound and could not attend
court for one month without serious medical consequences].)
Specifically, as noted earlier, the trial court had ample reason to believe that
Oliver’s condition was serious, and that his prognosis was unclear. The court
risked “exacting a heavy toll” on the jury if it had to wait for an uncertain or
extended period to deliver its verdict while Oliver received medical treatment,
emerged from his comatose state, recovered from his stab wounds, and returned to
court. (Id. at p. 573 [531 N.Y.S.2d at p. 478].) Oliver has not shown that the trial
court violated any federal constitutional right in accepting the verdict in his
absence under such extenuating circumstances.
Oliver also asserts his right to be present was violated on other occasions.
No prejudicial error occurred. (See People v. Waidla, supra, 22 Cal.4th 690, 741-
(1) On October 30, 1990, an attorney, Joel Isaacson, was relieved of his
appointment as advisory counsel following a conversation of which there is no
record. As best we can discern, Oliver was present in court at all relevant times.
(2) On August 22, 1991, another attorney, Ezekiel Perlo, was removed
from Oliver’s case outside of his presence. However, nothing significant occurred.
Perlo was new to the case and had done little or no work on it. He advised the trial
court, after making preliminary inquiries, that he wished to be relieved from
Oliver’s case due to a conflict of interest with another capital client and to
scheduling problems. The court granted Perlo’s request. The rest of that session
consumed perhaps a minute or two, and concerned routine calendaring matters.
Oliver’s absence could not have been prejudicial, because Perlo was not
effectively representing him. Also, on the next court date, August 23, 1991, Oliver
was present and voiced no objection to not being represented by Perlo. Instead,
Oliver announced that he wished to proceed in propria persona.
(3) On May 7, 1992, three days after the court granted Oliver a mistrial and
dismissed the original jury venire following the acquittals in the Rodney King case
and the ensuing civil unrest in Los Angeles, Oliver was absent from a pretrial
hearing involving Lewis’s mistrial motion. At that time, counsel and the court
discussed certain scheduling matters, and the prosecutor briefly mentioned the
names of defense witnesses in conjunction with a discovery matter. However, the
prosecutor accepted the comment of Charles Lloyd, counsel for Oliver, that “Mr.
Oliver is not present and his matter is not before the court.” Hence, nothing
significant occurred. Oliver’s absence could not have harmed his case.
(4) On September 24, 1992, neither Oliver nor, initially, his counsel was
present during a pretrial discussion of scheduling, prospective juror
questionnaires, jury selection procedures, and witness statements. However,
Oliver’s counsel arrived later in the discussion, and was informed about the
matters he had missed. Any error in beginning the discussion outside counsel’s
presence was sufficiently cured when counsel arrived. Oliver’s own absence could
not have harmed his case.
(5) On January 21, 1993, shortly before Oliver entered the courtroom,
counsel and the court briefly discussed the question of stipulating to the excusals
of a few prospective jurors and the views of one of them on the death penalty.
Almost all of this discussion involved issues relating solely to Lewis. The trial
court was aware of Oliver’s absence and ensured that nothing of substance
occurred until he was present. Accordingly, when Oliver arrived, the parties had
taken no action on stipulating to excusals of prospective jurors (although Lewis’s
counsel commented on what he might do on behalf of Lewis), or engaged in any
meaningful substantive discussion about the reasons for so stipulating. Everyone
waited until Oliver was present before engaging in the stipulations. Oliver could
have told counsel at that time if he objected to any of the stipulated excusals, and
he did not do so.
(6) On January 25, 1993, at the end of one trial day, the jury examined
exhibits after Oliver — knowing that the jury would be doing so — sought to
leave and was no longer present in the courtroom. Oliver knew what the jury was
doing, and nonetheless chose to leave. He cannot claim error on appeal based on
his own volitional actions at trial.
(7) On February 25, 1993, Oliver and his attorney missed a hearing
primarily concerning Lewis’s mental competence to stand trial. At that time, the
court anticipated scheduling problems at the penalty phase due to Oliver’s
incapacity. However, nothing was decided. Discussions on scheduling matters
continued in the presence of Oliver and his counsel on March 8, 1993, before the
penalty phase began.
I. Absences Before and During Guilt Phase (Lewis)
Lewis claims violations of his statutory and constitutional rights to be
present at various proceedings. He cites Penal Code sections 977 and 1148. He
also invokes his due process rights under the Fifth and Fourteenth Amendments,
and under parallel provisions of the state Constitution.
The first incident occurred at a pretrial hearing on October 16, 1992. At
that time, Lewis was representing himself, and was litigating the admissibility of
the white powder found in a plastic bag at the Mount Olive Church after the
capital crime. Oliver’s counsel then requested an ex parte sidebar conference with
the court. Lewis did not ask to approach the bench or join the legal discussion.
Lewis now claims he was denied his right to be present at the bench conference.
Even assuming the claim is not waived in whole or part for failure to object
below, it lacks merit. Lewis complains that both he and his advisory counsel were
absent from sidebar. However, it appears the statutory and constitutional right to
personal presence at a criminal proceeding does not apply in this situation. (See
People v. Waidla, supra, 22 Cal.4th 690, 741-742.) Lewis cites no authority for
the assumption that his right to be present extended either to him while acting as
his own counsel, or to advisory counsel who was assisting him in that capacity.
We therefore decline to find error on this ground.
The next complained-of absences occurred on February 10 and 11, 1993,
shortly after Lewis slit his wrists in jail, and was placed on a suicide watch. As we
later discuss, the wounds were superficial and were made in an apparent attempt to
establish his mental incompetence to stand trial.
Specifically, on February 10, 1993, the first day of jury deliberations at the
guilt phase, the trial court announced that Lewis had “made an ineffectual attempt
to injure himself” and was being held elsewhere, apparently under medical
observation, in restraints. The court commented that it thought Lewis was again
attempting to delay the proceedings, and asked Lewis’s counsel how they wished
to proceed. During the discussion, one of Lewis’s attorneys said he thought Lewis
was feigning behavior in another attempt to establish his incompetence to continue
with the trial. On February 11, 1993, the trial court announced that the jury had
reached a verdict. Lewis was under suicide watch at the time, and his counsel
agreed to accept the verdict in his absence. The court received the verdict, and the
clerk read it.
Lewis’s self-inflicted injuries, which he apparently caused in order to feign
incompetence and obstruct the proceedings, constituted volitional conduct for
which he may properly be deemed to have absented himself from the proceedings,
and to have waived any right to be present. (See People v. Arias, supra, 13 Cal.4th
92, 143-148 [defendant engaged in disruptive conduct within and without the
courtroom and could not benefit on appeal from his own misconduct]; see also
Illinois v. Allen (1970) 397 U.S. 337, 345-346 [involving disruptive conduct within
the courtroom]; People v. Davis (2005) 36 Cal.4th 510, 531, citing § 1043, subd.
(b)(1) [same]; People v. Pride, supra, 3 Cal.4th 195, 253-254 [same].)
In any event, the trial court implicitly found under section 1148 that the
interest of justice required it to receive the verdict in Lewis’s absence. It was
unclear when Lewis would return to the courtroom. The court was understandably
concerned that an open-ended delay would interfere with the proceedings. No
The last challenged absence involves events on February 22, 1993. This
incident occurred when Lewis’s counsel sought a mental competence hearing
between the time of the guilt and penalty trials. On that date, the court commented
about the “creative array” of “talents [Lewis] has for delay.” We believe that
Lewis was present in court on this occasion. He was in the adjoining holding cell
and, the record explains, could hear the proceedings. It appears to have been the
court’s practice to pipe the court proceedings into the holding cell when one or
more of the defendants was there, as often occurred. Lewis was free to return to
the courtroom at any time and to address the court’s comment. We cannot
conclude on this record that the court’s remark was made in Lewis’s absence.
J. Sufficiency of the Evidence (Oliver)
Oliver claims there was insufficient evidence to prove his guilt of the charged
crimes. In his view, the convictions and ensuing death sentence violate the due
process clause of the Fourteenth Amendment, and unspecified provisions of the
Eighth Amendment. We disagree.
Our role is limited here. We review the entire record in the light most
favorable to the judgment, and affirm the convictions as long as a rational trier of
fact could have found guilt based on the evidence and inferences drawn therefrom.
(People v. Millwee, supra, 18 Cal.4th 96, 132, citing People v. Johnson (1980) 26
Cal.3d 557, 576; see Jackson v. Virginia (1979) 443 U.S. 307, 319.)
The evidence refutes Oliver’s claim of mistaken identity, and shows that he
committed the capital crime. Oliver became enraged at Mizell when she had the
police forcibly extract him from Lewis’s house the day she ended her relationship
with Lewis and moved out. The jury could reasonably infer that Oliver, out of
loyalty to his brother Lewis, would be willing to help Lewis pursue his own
vendetta against Mizell and her family after she left.
Of course, the hoods and masks worn by the two men who committed the
capital crime at the Mount Olive Church prevented facial identification. However,
witness descriptions of the killer’s height, weight, and complexion matched
Oliver’s general appearance. In targeting Mizell and her immediate family for
death inside the church (under the mistaken belief they would all be present,
including Mizell), Oliver apparently entered and pulled the trigger (as opposed to
Lewis), because parishioners were less likely to recognize Oliver (whom they did
not know) than Lewis (whom they did know). Oliver had the opportunity in
advance to study Mizell’s photo album and learn the faces of the family members
who were intended as victims.
Two days after the capital crime, Oliver threatened Holt with his Savage
shotgun, which the police seized from his car. Forensic evidence conclusively
linked Oliver’s shotgun to the murders and attempted murder. Oliver’s palm print
impressions were found on the shotgun. Three shells fired by the same weapon
were retrieved from inside the church where the three shootings occurred. The
police found a black jacket in Oliver’s car similar to clothing that the killer wore.
They also found gunshot residue on the jacket. A search of the house Oliver
shared with Lewis uncovered fingerless gloves similar to the pair the killer wore
while wielding the shotgun inside the church. In light of the foregoing, ample
evidence supported the verdicts against Oliver of murder and attempted murder,
and the related multiple-murder special circumstance finding.24
As suggested in the discussion of defendants’ pretrial motion to dismiss the
information, the evidence was sufficient to support the guilt verdict against Lewis
— a point he does not directly contest on appeal. The evidence at trial showed
that Lewis became enraged at Mizell after she ended their relationship and
returned to her family’s home. Based on statements Lewis made at work, he
blamed the break-up primarily on Mizell’s family. The day Mizell left him, Lewis
bought the Mossberg shotgun. The same shotgun was promptly used to vandalize
the car belonging to Mizell’s aunt. Mizell’s car, which had been in Lewis’s
possession, was destroyed by fire.
The jury could infer the capital crime occurred at the Mount Olive Church
because the perpetrators, presumably led by Lewis, expected Mizell and her
(footnote continued on next page)
V. COMPETENCE ISSUES
Lewis and Oliver assert various claims of statutory and constitutional error
concerning their mental competence to stand trial. In general, both defendants rely
on Penal Code section 1368 and the due process clause of the Fourteenth
Amendment. More specifically, Lewis claims the trial court erred in not finding
substantial evidence of incompetence to warrant a section 1368 hearing between
the guilt and penalty phases. Oliver levels a similar charge. He claims the court
ignored substantial evidence of mental incompetence caused by the physical
injuries he sustained in the jailhouse stabbing before the penalty phase.
As noted, on January 20, 1993, after counsel was reappointed, Lewis
declined to appear in court because other inmates had made upsetting comments
about his mother’s death, which had occurred about a year beforehand. The next
day, during jury selection, Lewis was belligerent in the courtroom. Counsel told
the court that Lewis described himself as a “1368 candidate,” i.e., incompetent
(footnote continued from previous page)
family to follow their usual routine and attend services that night. When they did
not encounter Mizell or her immediate family inside the church, the perpetrators
targeted members of Mizell’s extended family. Though the gunman who stood
guard outside the church was disguised in “ninja” garb, witness descriptions
suggested it was Lewis based on his height, weight, and complexion.
A search of Lewis’s house uncovered, among other things, part of Lewis’s
Mossberg shotgun. The police arrested Lewis carrying another part of the weapon
outside his house. The jury could infer that Lewis had disassembled it to conceal
his role in the capital crime. Indeed, shells from the Mossberg weapon were found
outside the church where Larry Brown had been fired upon. Lewis suspiciously
rented three different automobiles in the days surrounding the capital crime despite
owning his own car. Lewis told his work supervisor that he would be suspected of
committing the murders, and that he did not want to be identified in his own motor
vehicle. There was ample evidence to support the murder and attempted murder
convictions against Lewis, and the multiple-murder special circumstance finding.
(see § 1368), and wanted to see a psychiatrist. The court and counsel agreed that
Lewis seemed competent. However, in an abundance of caution, counsel planned
to have him examined. Meanwhile, on January 25, 1993, the evidentiary phase of
the guilt phase began. As noted, on February 1, 1993, before the end of the
People’s case-in-chief, defendants attacked counsel in court in an apparent attempt
to obtain a mistrial.
The competence issue resurfaced between the start of the defense case on
February 8, 1993, and the end of jury deliberations on February 11, 1993. During
this time, Lewis again became belligerent, e.g., refusing to talk to anyone and
screaming in the lockup behind the courtroom, stripping naked and taunting
deputies, and superficially slitting his wrists. Discussing Lewis’s behavior, the
trial court and counsel each opined that Lewis was both manipulative and
competent to stand trial. Lewis’s counsel disclosed that Dr. Alvin Davis, and
Michael Paul Maloney, Ph.D., a psychologist, had examined Lewis on February 6
and 7, respectively, and had reached a similar conclusion. However, counsel
wanted Lewis reexamined for suicidal tendencies. Lewis’s counsel agreed that the
guilt verdict could be read in Lewis’s absence.
On February 22, 1993, counsel said he had received a report from Dr. Davis
opining that Lewis could not assist in his defense. Counsel moved for a
competence hearing in front of a jury as a result. He noted that while Dr. Maloney
had not yet finished his report, it likely would conclude that Lewis was feigning
incompetence. The court was reluctant to act on counsel’s request based solely on
Dr. Davis’s views, noting he “is rather well known in the system.” The court
agreed to accumulate more information before deciding whether there was
substantial evidence of incompetence to warrant a full section 1368 hearing.
To this end, on February 24 and 25, 1993, the court heard the testimony of
three experts. E. Eugene Kunzman, M.D., a psychiatrist, and Dr. Maloney opined
that Lewis was malingering and was competent for trial purposes. By contrast, Dr.
Davis, the psychiatrist who would later testify on defendant’s behalf at the penalty
phase, testified that although Lewis was malingering, that conduct masked genuine
and severe paranoia, and that Lewis was incompetent to continue with the trial
because he distrusted counsel and could not assist in his defense.
After hearing the testimony of Drs. Kunzman, Maloney, and Davis, the trial
court denied Lewis’s request for a full competence hearing. It explained its
reasons at length. It concluded that Dr. Davis had said nothing to connect Lewis’s
mental difficulties with his competence to stand trial. The court stated: “I do not
find that the evidence has raised any reasonable doubt concerning [Lewis’s]
competence, nor do I harbor any doubt as to his competence or mental
impairment. [¶] The defendant has displayed a history of manipulation and delay.
I found Dr. Davis to be less than credible and I have no confidence in his
conclusion. . . . [¶] I find his conclusions are not supported by any factual basis
and he disregards evidence that is contrary to what appears to be a prefixed
opinion. . . . Dr. Davis never acknowledged any alternative other than [that Lewis
was incompetent]. It would be a travesty to have the defendant succeed in his
The criminal trial of a mentally incompetent person violates due process.
(Cooper v. Oklahoma (1996) 517 U.S. 348, 354.) However, a defendant is not
incompetent if he can understand the nature of the legal proceedings and assist
counsel in conducting a defense in a rational manner. (See ibid.; § 1367.) Only
when the accused presents “substantial evidence” of incompetence does due
process require a full competency hearing. (People v. Lawley (2002) 27 Cal.4th
102, 131.) A reviewing court generally defers to the trial court’s observations and
assessments in this regard. (See People v. Marshall, supra, 15 Cal.4th 1, 33.)
Evidence is not substantial enough to mandate a mental competence
hearing unless it raises a reasonable doubt on the issue. (People v. Young (2005)
34 Cal.4th 1149, 1217.) We have said that this standard is satisfied if at least one
expert who is competent to render such an opinion, and who has had a sufficient
opportunity to conduct an examination, testifies under oath with particularity that,
because of mental illness, the accused is incapable of understanding the
proceedings or assisting in his defense. (Ibid., quoting People v. Pennington
(1967) 66 Cal.2d 508, 519; accord, People v. Welch (1999) 20 Cal.4th 701, 738.)
Here, the trial court did not err in finding no substantial evidence of mental
incompetence and no reason to suspend the criminal proceedings. Relevant
factors alluded to by the court included the suspicious timing of the wrist-slitting
incident and other bizarre behavior near the end of the guilt phase. Before then,
Lewis (aided at times by Oliver) used various tactics to delay and derail the trial,
including the physical attack on counsel in open court. Notwithstanding Dr.
Davis’s opinion that Lewis could not assist in his defense, counsel indicated in
candid discussions with the court that Lewis understood the proceedings and could
help counsel in conducting a defense if he chose to do so.
Lewis suggests here, as below, that the testimony of Dr. Davis compels a
contrary result. We disagree. The trial court found such evidence to be “less than
credible.” Moreover, independent of both its doubts about Dr. Davis’s credibility
and the contrary testimony of other experts, the court could conclude that Davis’s
opinion did not satisfy the substantial-evidence standard described above.
Specifically, the record supports the court’s view that Dr. Davis’s opinion
was “pre-fixed.” Dr. Davis acknowledged that he did not consider Lewis’s
psychiatric history in the army or in jail. Dr. Davis admitted that he never
reviewed the materials Lewis prepared while acting in propria persona. According
to Dr. Kunzman, Dr. Davis did not consult with him or examine the charts he had
prepared concerning his interviews with Lewis. Moreover, Dr. Davis conceded
that his conclusion regarding Lewis’s competence was tentative and not definitive.
The psychiatrist volunteered that “what may be crucial matter . . . for final
psychiatric diagnosis” was lacking.
As for the trial court’s additional conclusion that Dr. Davis ignored
“alternative” scenarios, the psychiatrist agreed that a defendant might engage in
hostile or bizarre behavior to derail a trial, but refused to see any reason for Lewis
to do so here. Dr. Davis also suggested that no normal person could feign mental
illness, and that only a mentally disturbed person would attack counsel. Dr. Davis
held these views even though he admitted that Lewis attacked counsel because
they disagreed over tactics, that Lewis learned on February 6, 1993, that his
cellmate had feigned mental illness during trial, and that Lewis might have slit his
wrists to manipulate the proceedings.
Finally, the record supported the court’s conclusion that Dr. Davis
“disregard[ed]” contrary evidence. Dr. Davis was recalled to the stand after Dr.
Maloney and Dr. Kunzman testified. Dr. Davis adhered to the views he had
previously expressed even though he had learned that Lewis announced his suicide
plan in advance, inflicted only bloodless scratches, and laughed about it afterward.
In light of the foregoing, no error occurred.25
Lewis suggests counsel’s representation on mental competence was not
vigorous, competent, or conflict-free. Lewis highlights counsel’s statements to the
court about whether Lewis was feigning mental illness, counsel’s willingness to
discuss the matter while Lewis was absent from court, counsel’s failure to seek the
recusal of the court based on its statements concerning defense expert Dr. Davis,
and counsel’s failure to find an expert on competence other than Dr. Davis (about
whose general approach to evaluating competence the court had expressed
skepticism in advance of his testimony). Lewis further suggests the trial court
erred in not appointing replacement counsel or recusing itself at this stage. We see
no merit in this string of related claims. Counsel’s opinion of his client’s
(footnote continued on next page)
As with Lewis, the issue of Oliver’s competence arose between the guilt
and penalty trials. On February 10, 1993, the same day that Lewis superficially
slit his wrists and the day before the jury reached the guilt verdict, the trial court
learned that Oliver had been stabbed the night before by another inmate. The
court said it was willing to delay the proceedings until Oliver was well enough to
attend. It observed, however, that there would be a “natural break” for preparation
of the penalty phase. As noted, the guilt verdict was read in Oliver’s absence on
February 11, 1993.
Over the next few weeks, the court monitored Oliver’s medical condition.
On February 22, 1993, counsel told the court that Oliver might have suffered a
stroke, that his speech was slurred, and that his leg movement was impaired.
Counsel asked for a continuance. The court and counsel agreed to discuss Oliver’s
condition on March 1. Meanwhile, on February 25, the court learned from
Detective Richard Aldahl that Oliver had recovered to the point that he might be
(footnote continued from previous page)
competence was not irrelevant. (See § 1368, subd. (a).) As an officer of the court,
counsel could not paint a misleading picture on the issue. (See Bus. & Prof. Code,
§ 6068, subd. (d).) Despite counsel’s own views on mental competence, he
zealously protected Lewis’s rights in this regard. Counsel had Lewis examined
both for mental competence and suicidal tendencies. Both Dr. Davis and Dr.
Maloney were involved in this process. Counsel subsequently sought a section
1368 hearing after receiving Dr. Davis’s report that Lewis was incompetent. The
court, in turn, heard at length from three experts in order to decide whether there
was substantial evidence of incompetence to warrant a hearing. It rejected Dr.
Davis’s views only after hearing his testimony in court, and after giving plausible
reasons for doing so. No error or deficient representation occurred.
able to attend half-days of trial by March 1. If so, the court planned to start the
penalty phase on March 1.26
On March 1, 1993, all counsel and defendants, including Oliver, were
present in court. Counsel explained that Oliver was much improved but was still
light-headed. However, counsel obtained a one-week continuance to attend to a
personal emergency. One week later, on March 8, all parties and counsel were
again present in court. Counsel renewed their request to continue the trial at least
one more week based on Oliver’s symptoms: coughing, remnants of pneumonia,
susceptibility to infection, and possible “brain damage.” Counsel cited Oliver’s
medical records and his insistence that he had trouble speaking, and argued against
a penalty trial absent authorization from Oliver’s physician. For her part, the
prosecutor urged the trial court to rely on medical reports that stated Oliver could
participate on a limited basis. The prosecutor stated that Oliver was “certainly
[able] . . . to understand the nature of the proceedings to at least assist counsel,”
and “is even capable of taking the witness stand . . . according to the report of the
In response, the trial court alluded to the fact that one month had passed
since the attack, that Oliver had been out of the hospital for at least one week, and
that he was well enough to be back in jail. The court confirmed that it had
received a facsimile transmission from Oliver’s doctor allowing him to undergo
trial on a half-day basis. In an abundance of caution, however, the court agreed to
hear testimony from the doctor. The court said that if such testimony confirmed
As noted earlier, Oliver and his counsel were not present in court on
February 25, 1993. The hearing primarily concerned Lewis’s competence, and
touched briefly on scheduling issues relating to Oliver.
counsel’s concerns, “we’ll just grant a mistrial as to his portion, put him aside,
sever it and proceed with Mr. Lewis.”
After a brief recess, the court said that it had arranged to hear testimony
from Orlando Pile, M.D., Oliver’s doctor of internal medicine, concerning Oliver’s
current condition. The court observed that Dr. Pile was well informed on the
issue. Counsel concurred.
On the witness stand, Dr. Pile described Oliver’s physical condition and
mental acuity based on a recent examination. Oliver was alert and oriented, and
answered all questions appropriately. He spoke slowly. Dr. Pile explained that the
slowness of speed seemed temporary, and did not establish brain damage even
assuming Oliver had suffered a stroke. Dr. Pile blamed Oliver’s speech issues
mainly on the trauma of his injuries and the recovery process itself. It appeared
Oliver would continue to improve. As a result, Dr. Pile concluded Oliver was
“able to endure a court proceeding” and “able to understand.”
Following this testimony, Oliver’s counsel sought a one-week continuance.
The court denied the motion. It declined to delay or suspend the proceedings
against Oliver, and indicated that his penalty trial would proceed.
Contrary to what Oliver claims, the record contains no substantial evidence
that Oliver’s physical injuries made him mentally incompetent to stand trial. The
only evidence presented was that he was physically recovering from his injuries,
and could attend court and understand the process. As noted, the trial court
initially considered severing Lewis’s case and delaying Oliver’s penalty trial until
his condition improved. However, Dr. Pile’s testimony obviated the need for any
such measures. Thus, Oliver did not “come forward” with substantial evidence of
his own incompetence to stand trial. (People v. Stanley (1995) 10 Cal.4th 764,
804.) There was no denial of his statutory or constitutional rights.
VI. Penalty Phase Issues
A. Notice of Aggravating Evidence (Oliver)
Oliver insists the prosecution failed to provide adequate notice under section
190.3 of evidence that he (1) was confined in a secure housing unit populated by
high-profile prisoners such as gang members, and (2) participated in certain
noncapital crimes against Mizell and her family. Oliver asserts violations of
numerous rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments, and
under parallel provisions of the state Constitution.
In January 1992, one year before trial, the prosecution filed a written notice
of the evidence it would introduce under factors (b) and (c) of section 190.3. No
mention was made of the circumstances of the capital crime under factor (a). The
document, which was supplemented shortly before the guilt trial, described each
prior crime, and the date and place of its commission. One item concerned the
“deadly weapon” (plastic knife) found in Oliver’s possession in violation of
section 4502 on March 2, 1985, in San Quentin Prison. An official report of the
incident apparently was attached to the section 190.3 notice.
Shortly before the start of the penalty trial, on March 8, 1993, the prosecution
confirmed that it planned to present the evidence outlined in the notice, including
Oliver’s possession of the plastic knife in prison. The prosecutor told the court
that defense counsel knew which incidents and supporting documents were in
issue. Counsel did not disagree.
The prosecution introduced evidence, among other things, that Oliver
occupied his own cell in a special unit at San Quentin Prison. Sergeant Royal
Towns testified that in 1985 the unit “housed infamous members of the Mexican
Mafia, Black Guerrilla Family, and Aryan Brotherhood, and we had a number of
Crips, Bloods, and bikers. It was a security housing unit.” Oliver did not object or
Oliver raised no issue of inadequate notice at trial. Accordingly, he has
forfeited his present claims on appeal. (Partida, supra, 37 Cal.4th 428, 435;
People v. Farnam (2002) 28 Cal.4th 107, 175.)
The claims also lack merit. First, the prosecution was not required to give
advance warning about the nature and population of Oliver’s prison housing block
in 1985. The section 190.3 notice need not recite each and every circumstantial
fact surrounding an otherwise duly noticed factor (b) crime. The notice is
sufficient if the defendant has a reasonable opportunity to respond. (People v.
Arias, supra, 13 Cal.4th 92, 166.) Such was the case here, as indicated by the
notice itself and the courtroom discussions below.
We reach a similar conclusion with respect to evidence that Oliver
participated in terrorizing Mizell and her family before the capital crime — acts
that bore on motive and identity on the murder and attempted murder counts. This
evidence was admitted at the penalty phase as a circumstance of the capital crime
under factor (a). By their own terms, the notice rules apply “[e]xcept for evidence
in proof of the offense or special circumstances which subject a defendant to the
death penalty.” (§ 190.3, italics added.) Hence, the present notice complied with
statutory law. (People v. Champion, supra, 9 Cal.4th 879, 942 [prosecution not
required to give notice that it would rely at penalty phase on evidence used to
prove capital crime at guilt phase].)
B. Unadjudicated Criminal Activity (Oliver)
Oliver challenges the admission of certain aggravating evidence under
section 190.3, factor (b), and presents a related instructional claim. He alleges that
such errors violated his Eighth Amendment right to a reliable penalty
The prosecution introduced evidence of “criminal activity by the defendant
which involved the use or attempted use of force or violence or the express or
implied threat to use force or violence.” (§ 190.3, factor (b), italics added.) This
section allows proof of violent conduct, other than the capital crime, that itself is
criminal. (People v. Anderson (2000) 25 Cal.4th 545, 584.) Such other violent
crimes are admissible regardless of when they were committed or whether they led
to criminal charges or convictions, except as to acts for which the defendant was
acquitted. (Ibid.) The penalty instructions must make clear that an individual
juror may consider other violent crimes in aggravation only if he or she is satisfied
beyond a reasonable doubt that the defendant committed them. (Ibid.; People v.
Griffin, supra, 33 Cal.4th 536, 585.)
Here, the challenged factor (b) evidence involves (1) Oliver’s possession of a
long plastic knife in San Quentin Prison, (2) his act of throwing a carton of milk
and hot coffee at a prison guard in Chino, and (3) his 1981 death threats over the
telephone to Lewis’s wife, Jeanett Hudson, and to her sister, Nadine Burchett. On
appeal, Oliver argues that these acts did not satisfy the “crime” and/or “violence”
requirements of section 190.3, factor (b), and that they were inadmissible in
aggravation at the penalty phase. We reject the claim.
As a threshold matter, Oliver failed to object to the admission of the
foregoing evidence on any ground at trial. He therefore has forfeited his appellate
claims under both statutory (People v. Tuilaepa (1992) 4 Cal.4th 569, 588) and
constitutional (Partida, supra, 37 Cal.4th 428, 435) law.
The evidence also was properly admitted under section 190.3, factor (b).
Contrary to what Oliver suggests, the jury could infer that he knowingly possessed
the knife in prison in violation of penal law. (§ 4502, subd. (a).) Indeed, the jury
could infer that the weapon was carefully hidden from view in the rear of his one-
man cell. Such possession involves an implied threat of violence. (People v.
Tuilaepa, supra, 4 Cal.4th 569, 589.) The prosecution was not required to show
that Oliver intended to use the weapon in a provocative or threatening manner.
(Ibid.; People v. Hughes (2002) 27 Cal.4th 287, 383.) The complaints about
admissibility therefore fail.
As to the second incident, in which Oliver threw a carton of milk and hot
coffee at a prison guard, the jury could infer that he committed an unlawful and
physically threatening act, i.e., an assault. (§ 240.) The evidence showed that
Oliver threw the items at the guard, who had to dodge the coffee to avoid being
hit. (Cf. People v. Tuilaepa, supra, 4 Cal.4th 569, 590.) Such conduct violated
penal law and involved the implied threat of violence. It therefore satisfied section
190.3, factor (b).
We similarly reject Oliver’s challenge to evidence that he made threatening
phone calls to Jeanett Hudson and Nadine Burchett in 1981. Both witnesses
testified that the calls threatened lethal harm. The jury could infer that such calls
and threats were intended to annoy the recipients, and that they violated
misdemeanor prohibitions against making annoying and threatening phone calls.
(§ 653m, subd. (a).) Contrary to what Oliver claims, the “remote” nature of these
acts does not bar their admission. The penalty jury was entitled to consider and
weigh criminal threats of violence committed at any time. (People v. Anderson,
supra, 25 Cal.4th 543, 585.) Hence, the phone calls were properly admitted
below. (People v. Stanley, supra, 10 Cal.4th 764, 824.)
We next address Oliver’s related claim of instructional error. In general, he
argues that the trial court failed to instruct on all the elements of the factor (b)
crimes challenged here. He complains that the instruction concerning “possession
of a deadly weapon in state prison” omitted the requisite knowledge element.
Oliver also observes that the instructions allowed the jury to consider the “battery
and assaults” on correctional officers, including the Chino assault on Valiente,
without defining those crimes. Finally, Oliver observes that the jury never learned
the criminal mental state required to make the “threatening [and] harassing phone
calls” generally described in the instructions.
However, contrary to what Oliver implies, this is not a case in which the trial
court was asked to instruct on the elements of other crimes, and failed to do so
accurately. (See People v. Cain (1995) 10 Cal.4th 1, 72 [trial court has no sua
sponte duty to instruct on elements of factor (b) crimes].) Counsel on both sides
specifically declined the court’s offer to instruct on “the elements of the prior
criminal acts.” Oliver and Lewis indicated that they considered and rejected such
instructions because — in the words of Lewis’s counsel — “they don’t help us.”
Hence, no instructional error occurred insofar as the court was induced to use the
more generic instructions about which Oliver now complains. Any technical lapse
also was harmless under any applicable standard. “[T]he evidence and argument
properly focused the jury’s attention on the moral assessment of defendant’s
actions[.] . . . [T]he instructions now suggested were not essential to the jury’s
consideration of this issue.” (People v. Cain, supra, 10 Cal.4th at p. 73.)
C. Reference to Prison Gangs and Housing (Oliver)
Oliver argues that evidence admitted during the penalty phase suggesting he
was a dangerous inmate was irrelevant and unduly prejudicial under state law.
(Evid. Code, §§ 350, 352.) He also claims it violated numerous guaranties under
the federal and state Constitutions (“fair trial,” “trial by jury,” “due process,” and
“reliable and individualized penalty”).
As mentioned, three correctional officers testified that Oliver was housed in
high-security settings reserved for inmates with disciplinary problems or violent
histories at the time he committed misconduct in jail or prison. This testimony
was provided by (1) Officer Valiente about the beverage-throwing incident in the
Chino prison, (2) Sergeant Towns about the plastic knife found in San Quentin
Prison, and (3) Deputy Cacheiro about the typewriter and scuffle incident in
county jail. The San Quentin incident included testimony that notorious gang
members occupied the same housing block. Oliver suggests such testimony was
not relevant to any permissible statutory aggravating factor, and that it was
admitted solely to inflame the jury into concluding that he was a violent person
who deserved to die.
Oliver did not object to this testimony on any ground at trial. He therefore
has forfeited his present claims under both statutory (People v. Farnam, supra, 28
Cal.4th 107, 160-161) and constitutional (Partida, supra, 37 Cal.4th 428, 435)
The contention also lacks merit. The challenged testimony merely placed
in context other admissible incidents in aggravation at the penalty phase. The
evidence tended to show the gravity of Oliver’s violent and threatening criminal
conduct behind bars, namely, that he was undeterred by heightened supervision
and special security measures. (See People v. Melton (1988) 44 Cal.3d 713, 757
[jury is entitled to know seriousness of other violent crimes in deciding penalty].)
Contrary to what Oliver suggests, the prosecution did not insinuate that defendant
himself was a gang member or had any involvement in gang violence. (Cf. People
v. Tuilaepa, supra, 4 Cal.4th 569, 588.) We reject the claim.
D. Photographs of the Murder Victims (Lewis, Oliver)
Defendants claim the trial court erred in admitting, over their objection
under Evidence Code section 352, crime scene photographs that were unduly
prejudicial (People v. Ayala, supra, 24 Cal.4th 243, 282) and cumulative. (People
v. Osband (1996) 13 Cal.4th 622, 677.) They assert the error resulted in violations
of the Fifth Amendment due process guaranty, the Eighth Amendment concern for
a reliable penalty determination, a state-created liberty interest under the
Fourteenth Amendment, and the Sixth Amendment generally.
Except for due process, the constitutional claims are forfeited. (Partida,
supra, 37 Cal.4th 428, 435.) We find no error under state law.
On March 1, 1993, before the penalty trial began, the prosecution sought to
admit several crime scene photographs that the trial court had excluded at
defendants’ request from the guilt phase. Defendants timely objected to three of
them, all involving Patrinella Luke. One photograph showed her lying in blood on
the floor, and the other two photographs showed her fatal head wound from
different angles. Defendants claimed the evidence was cumulative, irrelevant, and
inflammatory. The prosecution insisted the jury was entitled to see the close range
of the killing for the first time, and to assess the callousness of the act. The trial
court overruled the defense objections. It decided to “remove the sanitation
artificially placed in the guilt phase.”
The prosecution has wide latitude at the penalty phase to illustrate the crime
through photographs. Such evidence cannot prejudice the defendant as to guilt,
and the brutal circumstances assist the jury in making its normative (People v.
Schmeck (2005) 37 Cal.4th 240, 262) penalty decision. (People v. Burgener,
supra, 29 Cal.4th 833, 872; People v. Anderson, supra, 25 Cal.4th 543, 592-593.)
Photographs that accurately depict the manner of death are relevant to “ ‘malice,
aggravation, and penalty.’ ” (People v. Farnam, supra, 28 Cal.4th 107, 185.)
No abuse of discretion occurred here. (People v. Cox (2003) 30 Cal.4th
916, 955.) We have examined the photographs. They are unpleasant. However,
in evaluating defendants’ moral culpability for the capital crime, the jury was
entitled to have a complete picture of the brutal manner in which Patrinella Luke
was killed. (See People v. Cunningham (2001) 25 Cal.4th 926, 1036 [court’s
discretion under Evid. Code, § 352 to exclude evidence of circumstances of capital
crime is more limited at penalty phase than at guilt phase].)
Defendants also maintain that the court failed to adequately articulate its
reasons for introducing the photographs into evidence. But the trial court need not
expressly weigh prejudice against probative value, or even state that it has done
so. (People v. Box, supra, 23 Cal.4th 1153, 1200.) The assertion fails.
E. Victim Impact Evidence (Lewis, Oliver)
Defendants claim the trial court erred under state law by allowing victim
impact evidence that was statutorily irrelevant and unduly prejudicial. (§ 190.3,
factor (a).) The error allegedly violated defendants’ right to due process and to a
reliable penalty determination under the Eighth and Fourteenth Amendments
Before the penalty phase, Oliver filed written motions to exclude the victim
impact testimony and related videotape evidence. The hearing occurred on March
1, 1993, after the court ruled on the admissibility of the crime scene photographs.
Lewis joined Oliver in opposing the victim impact evidence. They argued at trial,
as on appeal, that it was redundant and inflammatory, and violated both federal
and state law. (Payne v. Tennessee (1991) 501 U.S. 808 (Payne); People v.
Edwards (1991) 54 Cal.3d 787.) The trial court disagreed. It subsequently denied
their motion to strike the testimony of the first witness to give such testimony.
In Payne, supra, 501 U.S. 808, the high court overruled Booth v. Maryland
(1987) 482 U.S. 496, 509, insofar as it barred states from admitting evidence of
the “specific harm” the defendant had caused, namely, the loss to society and the
victim’s family of a “unique” individual. (Payne, supra, 501 U.S. at p. 825.)
Payne reasoned that the prosecution has a legitimate interest in counteracting the
relevant mitigating evidence that the defendant must be allowed to introduce.
(Ibid.) The federal Constitution bars victim impact evidence only if it is “so
unduly prejudicial” as to render the trial “fundamentally unfair.” (Ibid.) State law
is consistent with these principles. Unless it invites a purely irrational response
from the jury, the devastating effect of a capital crime on loved ones and the
community is relevant and admissible as a circumstance of the crime under section
190.3, factor (a). (People v. Edwards, supra, 54 Cal.3d 787, 835-836; cf. People v.
Robinson (2005) 37 Cal.4th 592, 644-652.)
The victim impact evidence presented here satisfied Payne and did not
surpass constitutional limits. Nor was such evidence excessive, inflammatory, or
otherwise prejudicial under state law. “Family members spoke of . . . how they
missed having the victims in their lives.” (People v. Boyette (2002) 29 Cal.4th
381, 444.) The evidence concerned the kinds of loss that loved ones commonly
express in capital cases. Moreover, these defendants knew their victims. The
whole purpose of the capital crimes was to inflict maximum damage on one
family. The jury’s consideration of such damage on surviving family members
was not unfair or improper.
Defendants raise numerous other claims about the proper scope of victim
impact evidence. As in prior cases, we reject the claims as follows: (1) Section
190.3, factor (a) is not unduly vague insofar as it allows victim impact evidence as
a circumstance of the crime (People v. Wilson, supra, 36 Cal.4th 309, 358), (2)
victim impact testimony is not limited to the victims’ relatives or to persons
present during the crime (People v. Pollock (2004) 32 Cal.4th 1153, 1183), (3)
victim impact evidence is not limited to circumstances known or foreseeable to the
defendant at the time of the crime (Pollock, supra, at p. 1183), (4) nothing
precludes the children of murder victims (like Peter Luke, Jr.) from describing
their loss simply because they are not adults at the time of trial (see, e.g., People v.
Boyette, supra, 29 Cal.4th 381, 441, 444), (5) surviving victims (like Peter Luke,
Sr.) may describe their physical injuries and other effects of the crime (People v.
Brown (2004) 33 Cal.4th 382, 397), and (6) permissible victim impact evidence
can include a murder victim’s charitable and church activities (Pollock, supra, at
Defendants further challenge the testimony of Peter Luke, Sr., who was the
husband of murder victim Patrinella Luke, and whom Oliver maimed and almost
killed. The prosecutor asked Luke, Sr., “Is there anything else you would like to
tell us?” The witness answered, “I personally would just like to speak to the jury.
It’s from me. [¶] Even though — this is not a time where justice is a popular
thing. Right is reversed and nobody wants to do the right thing. But I ask you
today on my behalf, please just do the right thing. Do the right thing.”
On appeal, defendants insist Peter Luke, Sr.’s plea violated the Eighth
Amendment-based rule barring “ ‘the admission of a victim’s family members’
characterizations and opinions about the crime, the defendant, and the appropriate
sentence.’ ” (People v. Smith, supra, 30 Cal.4th 581, 622, quoting Payne, supra,
501 U.S. 808, 830.) The Attorney General responds that the witness spoke with
appropriate restraint and merely asked the jury to reach the “right” result.
Defendants failed to object to Peter Luke, Sr.’s testimony. Accordingly, they
have forfeited the claim on appeal. (People v. Mickle (1991) 54 Cal.3d 140, 187.)
Even assuming such testimony offended the constitutional principle on which
defendants rely, any error was harmless beyond a reasonable doubt. (Chapman v.
California (1967) 386 U.S. 18, 24.) Luke, Sr.’s suggestion that the jury should “do
the right thing” was brief, fleeting, and mild. It paled in comparison to other
evidence in aggravation, i.e., the circumstances of the capital crime, the tragic
impact on the victims, Oliver’s extensive criminal and violent history, and Lewis’s
campaign of fear and violence toward Hudson and her family. The challenged
evidence could not have tipped the balance in favor of death.
F. Defense References to the Bible (Lewis, Oliver)
Defendants contend the trial court erred under state decisional law, and
violated their rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments,
by prohibiting defense counsel from invoking the Bible in closing arguments at the
penalty phase. They misread the record.
On March 11, 1993, after each side had presented its final witness and the
court and counsel began discussing penalty instructions, the court mentioned the
prosecutor’s inquiries as to whether Oliver’s counsel might refer to the Bible in
closing argument. Defense counsel questioned whether he should be told in
advance what not to say. The trial court suggested that existing law did not allow
“any reference to the Bible.” However, the court said it was not prepared to
discuss or decide the issue “right now.” The court encouraged defense counsel to
review the law in preparation for a later hearing. Charles Lloyd, counsel for
Oliver, responded with humor. Later, in closing argument, Lloyd alluded to the
Bible, saying that “[v]iolence begets violence.” Counsel also twice mentioned
God, reminded jurors that the murders occurred in a church, and commented on
the needs of a person’s “soul.”
Defendants have not preserved the present claims. They did not object to
the trial court’s tentative suggestion that the law barred biblical references in
closing argument. Nor did they accept the court’s offer to litigate the issue fully at
a later time. Having deprived the court of the opportunity to make a record and
resolve the issue one way or the other, defendants have forfeited their claims on
appeal. (Partida, supra, 37 Cal.4th 428, 435.)
Moreover, contrary to defendants’ argument, the record contains no
indication that counsel were precluded from mentioning the Bible or other
religious themes as they wished. As we have seen, the trial court never held a
hearing or made a ruling in this regard. The court offered to debate and decide the
issue at a later time. No debate or decision occurred. As a result, the defense
freely invoked the Bible, God, the church venue, and the human soul in closing
argument. Nothing in the record suggests that defendants would have been
prevented from saying more along those lines had they sought to do so. No error
G. Prosecutorial Misconduct/Religion (Lewis, Oliver)
Defendants complain the prosecutor exploited religious imagery in closing
argument, and that she invoked divine law as the basis for death. Such statements
purportedly rendered the penalty trial fundamentally unfair (thus violating federal
law), and involved deceptive and reprehensible conduct (thus violating state law).
(See Darden v. Wainwright (1986) 477 U.S. 168, 181; People v. Farnam, supra, 28
Cal.4th 107, 167.) In making these arguments, defendants cite the Fifth, Sixth,
Eighth, and Fourteenth Amendments, and parallel provisions of the state
Constitution. Emphasis is placed on due process principles, and the requirement
of separation between church and state.
Defendants focus on various religious references. The prosecutor referred to
the crime scene as a “house of God.” She also stated that defendants appeared
“evil,” “soulless,” and “coward[ly].”27
The prosecutor argued: “These criminals violated the one safe haven we
have in this troubled world, the place where we go to enrich and glorify what is
best in us, where we reaffirm our faith in all that is good and righteous, where we
renew our souls and seek solace in the spiritual from a troubled world, a house of
God. . . . [¶] . . . [A] place where . . . we . . . drop our defenses and enjoy our
oneness as all creations of the Lord, all brothers and sisters bound together by . . .
our belief in God. [¶] Surely there can be no place so sacred, a place . . . to reach
the spiritual and purify our souls . . . . [¶] . . . the holiest of places where all . . .
may go to seek sanctuary from pain and trouble . . . .” “Who would violate the
sanctity of a house of God to commit the most heinous of crimes known to Man?
[¶] Only the most vile, soulless coward could commit crimes so foul and so evil.
In these defendants, we have the very epitome of evil and cowardice.” “These
defendants,” then, “are equally bereft of soul or humanity.” If you spare them, the
prosecutor told the jury, “you will sit on your hands and send the message that evil
will be tolerated” “in the sanctity of a house of God.” Rather, the jurors should
“send a message that the wasting of innocent lives will not be tolerated in our
(footnote continued on next page)
Defendants did not object to the foregoing remarks on any ground at trial.
Hence, they have forfeited their misconduct claims on appeal. (People v. Ervin,
supra, 22 Cal.4th 48, 100; People v. Wash, supra, 6 Cal.4th 215, 259-260 [counsel
“not only failed to object to the prosecutor’s remarks, but countered them by citing
a number of religious authorities to support his argument”].)
Oliver counters that no objection was required because defendants did not
anticipate the prosecutor’s appeal to religion. Oliver claims that because the
prosecutor had earlier tried to “block” defense references to religion, counsel
assumed religion would play no role at argument. As we have seen, however,
there was never any vigorous argument or clear ruling on the issue. The record
shows no surprise or other excuse justifying departure from the general rule
requiring a timely objection and preservation of misconduct claims.
The claims also lack merit under settled law. To be sure, “we have
condemned prosecutorial reliance on the Bible as support or approval of the death
penalty [citations] or prosecutorial invocations to a different or higher law than
that found in the state Penal Code [citation].” (People v. Ervin, supra, 22 Cal.4th
48, 100.) But nothing of the sort occurred here.
(footnote continued from previous page)
society and that he who dares to violate our laws, and our only refuge for spiritual
redemption, shall pay with his life, because nothing else can ever be called
justice.” Otherwise, “these evil monsters will have escaped justice and they will
In addition, the prosecutor made these two passing references to God:
“After all you have heard of what [Oliver] has done, both in and out of prison, is
this the kind of person you want to visit little children? God forbid.” Oliver “will
seek them [smaller and weaker inmates] out wherever he can find them, and God
The decision whether to impose the ultimate punishment is a “normative”
one assigned to the jury under California’s death penalty law. (People v. Schmeck,
supra, 37 Cal.4th 240, 262.) Here, defendants committed two murders in a church
filled with adults and children. Fortuitously, a third shooting victim survived. The
prosecutor was not required to ignore these compelling facts.
In particular, the prosecutor was free to argue, and the jury was free to infer,
that defendants showed exceptional moral depravity in following their victims to a
religious sanctuary in order to kill them ruthlessly and in cold blood. Whether it is
a church, synagogue, mosque, or temple, any “house of God” is — by history and
tradition — the last place anyone expects to encounter lethal violence. The
prosecutor could properly urge jurors to consider evidence of the location in which
defendants chose to commit their crimes in making the normative decision
whether to impose death under the secular law in which they had been instructed.
Moreover, any prosecutorial misconduct was harmless under any test of
prejudice. (See People v. Lenart (2004) 32 Cal.4th 1107, 1130.) The jury could
only have seen defendants’ crimes as base and vile. Their impact on the victims
— including the churchgoers who witnessed the shootings inside the church —
was quite painful. Of course, the jury knew about Oliver’s criminal record and
violent history. Jurors also knew about Lewis’s pattern of domestic violence. We
discern no prejudice.
H. Prosecutorial Misconduct/Facts Not in Evidence
Defendants maintain that in closing argument the prosecutor improperly
(1) represented that Oliver’s poststabbing injuries were temporary, (2)
complimented defense counsel, and (3) remarked that the police felt they lacked
sufficient evidence to arrest Lewis for violence perpetrated against Jeanett
Hudson. These references are attacked as being unsupported by the trial record.
There was no objection on any ground below to the prosecutorial comments
challenged here. The claims therefore are forfeited on appeal. (People v. Ayala
(2000) 23 Cal.4th 225, 284.)
On the merits, prosecutors have wide latitude to discuss and draw inferences
from the evidence and information duly presented at trial. “ ‘Whether the
inferences the prosecutor draws are reasonable is for the jury to decide.’ ” (People
v. Wilson, supra, 36 Cal.4th 309, 337.)
No misconduct occurred. First, jurors could largely see and assess Oliver’s
physical condition and gradual recovery in the courtroom. They previously had
learned of the nature, extent, and cause of his medical problems. The prosecutor
did not state or imply that there was no possibility of lingering ill effects.
Second, the prosecutor complimented defense counsel as “formidable
adversaries and . . . good people.” This statement was rhetorical, and was not a
comment on the evidence. It was not misconduct for the prosecutor to appear
gracious, or to imply that even highly qualified counsel could not distract the jury
from the facts.
The third item concerns the prosecutor’s comment explaining why Lewis was
never prosecuted for the crimes against Jeanett Hudson. Hudson testified that she
repeatedly told the police about the attacks on her and her family in 1981, and that
she was repeatedly told that the police could do nothing absent concrete evidence
identifying Lewis as the perpetrator. In closing argument, the prosecutor said that
“without a gun to match the bullets, without a witness who saw the shooters, the
police did not feel they could make an arrest.” This remark was a fair inference.
In light of Hudson’s testimony about the shots Lewis fired at her family’s house
and her car in 1981, the prosecutor could properly offer the jury suggestions as to
the kind of evidence that the police apparently lacked.
I. Motion for New Trial (Oliver)
Oliver contends that the court failed to articulate sufficient reasons for
denying his motion for new trial, and thereby violated section 1181, paragraph 6.28
He also argues that the court’s actions denied him due process and a reliable
penalty determination under the Fifth and Eighth Amendments, and violated
parallel provisions of the state Constitution.
On May 21, 1993, after the jury returned the death verdicts and before
sentence was pronounced, the trial court considered each defendant’s written
motion for a new trial. Pertinent here is Oliver’s motion. The first four grounds
concerned rulings on the Wheeler motion (Wheeler, supra, 22 Cal.3d 258), the
courtroom assault, prosecutorial comments about the assault, and Oliver’s request
for a continuance of the penalty trial. As his fifth reason in support of a new trial,
Oliver complained that the guilt verdict was “contrary to the evidence,” apparently
in violation of section 1181, paragraph 6. He stressed the lack of either motive
evidence or identification testimony.
In a lengthy ruling from the bench, the trial court individually discussed each
ground raised in the motion. As to the first four issues, it set forth its reasons for
the challenged rulings, and explained why those rulings were correct. With regard
to the fifth and final ground raised in the new trial motion, the court disagreed with
Oliver’s evaluation of the evidence of guilt. Specifically, the court stated, “Finally,
with respect to the verdict [being] contrary to the evidence, I disagree with you on
Section 1181 provides, in part: “When a verdict has been rendered or a
finding made against the defendant, the court may, upon his application, grant a
new trial . . . [¶] . . . [¶] 6. When the verdict or finding is contrary to law or
Oliver suggests that the trial court’s ruling under section 1181, paragraph 6,
was so perfunctory that we cannot be confident that the court properly exercised
its discretion, or exercised any discretion at all. Relying on People v. Robarge
(1953) 41 Cal.2d 628, 634, Oliver claims the court failed to reach an “independent
conclusion as to the sufficiency of credible evidence to support the verdict.”
The claim lacks merit. Although the trial court’s rejection of Oliver’s
insufficient evidence argument was stated succinctly, we infer from the record of
the hearing itself that the court properly “discharge[d] [its] duty to conscientiously
consider [the] motion for new trial . . . . The hearing transcript reveals that [the
court] was well acquainted with the briefs and the transcript of the trial and
carefully considered those claims before denying the motion.” (People v.
Burgener, supra, 29 Cal.4th 833, 893.) Because no manifest or unmistakable
abuse of discretion appears, we will not disturb the ruling on appeal. (People v.
Staten (2000) 24 Cal.4th 434, 466.)
J. Motion to Modify the Verdict (Oliver)
Oliver claims the trial court erred in applying section 190.4, subdivision (e),
when evaluating his automatic motion to modify the verdict. He also asserts that
the court violated his due process rights under the Fifth and Fourteenth
Amendments, his Sixth Amendment right to confront witnesses (by failing to give
advance notice that his uncharged crimes would be used against him), his Eighth
Amendment rights generally (by refusing to evaluate mitigating evidence and
thereby undermining his right to a reliable penalty determination), a state-created
liberty interest under the Fourteenth Amendment (by failing to follow the
requirements of section 190.4, subdivision (e)), and parallel provisions of the state
At a hearing on May 21, 1993, the trial court described its duties to
independently reweigh the evidence in aggravation and mitigation, and to
determine whether, in its own judgment, the evidence supported the verdict. The
court stated that it had reviewed the entire record, including the transcripts and its
own “extensive notes.” Exercising its independent judgment, the court found that
the aggravating evidence substantially outweighed mitigation, and that the jury’s
death verdict was supported by the record. The court then discussed the specific
sentencing factors applicable to each defendant.
Section 190.4, subdivision (e) provides as relevant here: “In ruling on the
application, the judge shall review the evidence, consider, take into account, and
be guided by the aggravating and mitigating circumstances referred to in Section
190.3, 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. The judge shall state on the record
the reasons for his findings.” The trial court must make an “independent”
determination concerning the propriety of the death verdict in light of the evidence
and the applicable law. (People v. Burgener, supra, 29 Cal.4th 833, 891.) The
court need not, however, recount “every detail” supporting its determination.
(People v. Arias, supra, 13 Cal.4th 92, 192.) The ruling need only be sufficiently
articulated to assure meaningful appellate review. (Id. at p. 191.)
Oliver contends the trial court improperly considered irrelevant aggravating
evidence, namely, the noncapital crimes that Lewis alone committed against
Mizell and her family. Oliver also claims the court failed to consider relevant
mitigating evidence, namely, his age at the time of the capital crimes.
Oliver did not object below to any aspect of the court’s recitation of its
reasons for denying the automatic modification motion. He has forfeited his
claims. (People v. Riel (2000) 22 Cal.4th 1153, 1220 [applying the forfeiture rule
to hearings on such motions following the finality of People v. Hill, supra, 3
Cal.4th 959, a 1992 case]; see Partida, supra, 37 Cal.4th 428, 435.)
In any event, Oliver’s assertions lack merit. As to the contention that the trial
court considered irrelevant aggravating evidence, the court observed that the
motive for the murders could be found in the “terrorist campaign” that Lewis
waged against Mizell, and in Oliver’s “close partnership” with Lewis in that
campaign. It also noted that “arson, shooting, [and] threatening telephone calls”
preceded the murders, and that Oliver “personally engaged” in some of these acts.
Nothing in the record, however, indicates that the court blamed Oliver for all such
acts, or used against Oliver acts that Lewis alone committed.
As for the trial court’s consideration of Oliver’s age at the time of the crimes,
no error occurred. There is no evidence that the trial court failed to consider this
sentencing factor. Rather, the court stated that it was “aware of its obligation to
. . . weigh the evidence, including reviewing all the designated factors under Penal
Code section 190.3.” It further stated that it “has further carefully examined,
considered and been guided by every mitigating factor . . . .” The court’s ruling
indicates its clear understanding of its duty to weigh all the aggravating and
mitigating evidence. “ ‘[T]he failure to mention [certain] specific matters in
mitigation implies, not that they were overlooked or deemed legally irrelevant, but
simply that the court found them insubstantial and unpersuasive.’ ” (People v.
Weaver (2001) 26 Cal.4th 876, 991.) Such is the case here. (Cf. People v.
Burgener, supra, 29 Cal.4th 833, 891-892.) Oliver was not a vulnerable youth
when the capital crime occurred. The court’s failure to mention the age factor
implies that it carried little weight. (People v. Arias, supra, 13 Cal.4th 92, 192.)
K. Request for Trial Court’s Notes (Lewis, Oliver)
Defendants complain that, long after trial, the court declined to augment the
record with personal notes it mentioned when denying their motion to modify the
penalty verdict at trial. (See § 190.4, subd. (e).) Defendants primarily claim that
this circumstance violated their right to a reliable penalty determination under the
Eighth and Fourteenth Amendments.
In 1993, in ruling on the motion to modify the verdict, the trial court stated it
had relied in part on its “extensive notes.” In 1999, however, in response to
Oliver’s augmentation request, the court said, “I am not going to turn those over. I
object to that. Those are kept immediately after trial until I get to the motion for
reconsideration and then they are gone.”
No error occurred. It appears the trial court had discarded its private notes by
the time they were requested. But even if the court had not done so, it was not
required to augment the record to include them. The notes were the court’s own
work product, and personal to the judge. (Copley Press, Inc. v. Superior Court
(1992) 6 Cal.App.4th 106, 114-115 [holding that “rough” minutes of court clerk
are public records open for inspection, and distinguishing personal bench notes of
trial judge].) Under the principles applied in Copley, “bench notes are constructed
so as to remind [the judge], in his personal fashion and not in a form digestible by
the public, of the aspects of the case he thought important.” (Id. at p. 114.) They
are not public or court records in the sense that they represent or record the official
work or actions of the judge or his clerk. (Id. at p. 113; see also Beuhler v. Small
(2003) 115 Wash.App. 914, 921 [64 P.3d 78]; State v. Panknin (Wis.Ct.App. 1998)
217 Wis.2d 200, 212 [579 N.W.2d 52]; State ex rel. Steffen v. Kraft (1993) 67 Ohio
St.3d 439, 439-440 [619 N.E.2d 688, 689]; Peery v. Peery (Tex.Ct.App. 1986) 709
S.W.2d 392, 395.) Oliver cites no contrary law. We decline to find error.
Moreover, in ruling on the modification motion, the trial court said that it was
“aware of its obligation to . . . weigh the evidence, including reviewing all the
designated factors under Penal Code section 190.3.” It was in that context that the
court stated it had reviewed its notes of the trial proceedings. Based on the record,
the court consulted its private notes only for the purpose of complying with the
mandate of section 190.4, subdivision (e). (See People v. Ray (1996) 13 Cal.4th
313, 360 [trial court relied in part on its notes in considering motion to modify
verdict].) We discern no impropriety in the trial court’s actions that might make its
notes material to defendants on appeal. In sum, defendants were not entitled to
have the record augmented with the notes. They are not now entitled to reversal
L. Cumulative Error (Lewis, Oliver)
Defendants argue that their rights under the Fifth, Sixth, Eighth, and
Fourteenth Amendments compel reversal of the convictions and sentence because
of the cumulative effects of error at the guilt and penalty phases. We disagree. We
have found no reversible error in any particular instance. Any errors that did occur
do not combine to compel reversal of the judgment. Defendants were entitled to a
fair trial. They received a fair trial despite their repeated efforts to disrupt it. (See
People v. Osband, supra, 13 Cal.4th 622, 702.)
M. Miscellaneous Claims (Lewis, Oliver)
Defendants raise additional challenges to California’s death penalty statute
and to other aspects of California law. We affirm the decisions that have rejected
similar claims, and decline to reconsider such authorities, as follows:
Victim impact evidence does not violate due process or ex post facto
principles. (People v. Brown, supra, 33 Cal.4th 382, 394-395.) The use of victim
impact evidence is constitutionally permissible. (Id. at p. 403.)
Standard penalty phase instructions do not inherently encourage the double
counting of aggravating factors. (People v. Ayala, supra, 24 Cal.4th 243, 289.)
Factor (b) of section 190.3 is not impermissibly overbroad or fundamentally
unfair. (See People v. Balderas (1985) 41 Cal.3d 144, 204-205.)
The judgment and sentence against defendants do not violate international
law. (People v. Brown, supra, 33 Cal.4th 382, 403-404.) The record contains no
suggestion that either defendant is a foreign national or a dual national.
The death penalty law is not unconstitutional for failing to impose a burden
of proof — whether beyond a reasonable doubt or by a preponderance of the
evidence — as to the existence of aggravating circumstances, the greater weight of
aggravating circumstances over mitigating circumstances, or the appropriateness
of a death sentence. (People v. Brown, supra, 33 Cal.4th 382, 401.) Nor, contrary
to defendants’ assertion, does section 190.3’s lack of imposition of a burden of
proof violate Evidence Code section 300, which provides that “Except as
otherwise provided by statute, this code applies in every action before the
Supreme Court or a court of appeal or superior court, including proceedings in
such actions conducted by a referee, court commissioner, or similar officer, but
does not apply in grand jury proceedings.” Section 190.3 is such an excepting
statute. Although we have said that “[t]he California death penalty statute is silent
on the burden of proof” (People v. Carpenter (1997) 15 Cal.4th 312, 417), section
190.3 makes clear that the sentencing function “ ‘is inherently moral and
normative, not factual; the sentencer’s power and discretion . . . is to decide the
appropriate penalty for the particular offense and offender under all the relevant
circumstances.’ [Citation.] Because of this, instructions associated with the usual
fact-finding process — such as burden of proof — are not necessary.” (Id. at pp.
417-418, ellipsis added here; see People v. Schmeck, supra, 37 Cal.4th 240, 262
[normative nature of penalty decision].)
The trial court did not err in failing to instruct on which guilt phase
instructions continued to apply at the penalty phase. (People v. Sanders (1995) 11
Cal.4th 475, 561.) Nor, in that same area, did the court err in failing to provide the
jury with CALJIC No. 8.84.1. (People v. Steele (2002) 27 Cal.4th 1230, 1255.)
Its instructions, along with the jurors’ understanding of the nature of the penalty
phase, conveyed the substance of CALJIC No. 8.84.1 to the jury. (See id. at
p. 1257; see also id. at p. 1256, fn. 7.)
The trial court did not need to define the presumption of innocence, i.e., the
beyond-a-reasonable-doubt standard, at the penalty phase. (People v. Kirkpatrick
(1994) 7 Cal.4th 988, 1020.)
Notwithstanding defendants’ motion to have the trial court instruct on
lingering doubt, the trial court was within its authority to deny the motion.
(People v. Cleveland, supra, 32 Cal.4th 704, 739; People v. Sanchez (1995) 12
Cal.4th 1, 77.) In any event, there is no doubt that defendants committed the
crimes. (See People v. Rodrigues (1994) 8 Cal.4th 1060, 1187 [“Under these
circumstances, we do not believe defendant would have derived any additional
benefit had the requested instruction been given”]; People v. Fauber (1992) 2
Cal.4th 792, 864 [same].)
There is no requirement to define life imprisonment without possibility of
parole. (People v. Prieto (2003) 30 Cal.4th 226, 269-271.)
The statutory scheme does not deny capital defendants the equal protection of
the laws or any other constitutional right insofar as it does not contain disparate
sentence review (i.e., comparative or intercase proportionality review). (People v.
Lawley, supra, 27 Cal.4th 102, 169; see People v. Prieto, supra, 30 Cal.4th 226,
Death by lethal injection is not cruel and unusual punishment under current
law. (People v. Martinez (2003) 31 Cal.4th 673, 704.)
Defendants have not shown that the Department of Corrections and
Rehabilitation has violated due process principles or state law in respect of its
standards for the administration of lethal injection under section 3604, and in any
event, this type of claim does not entitle a criminal defendant to relief at this stage.
(People v. Young, supra, 34 Cal.4th 1149, 1234; see People v. Boyer, supra, 38
Cal.4th 412, 485, fn. 55 [mentioning recent federal court challenge to validity of
lethal injection procedures].)
Any delay in carrying out the execution is not unconstitutional. (People v.
Brown, supra, 33 Cal.4th 382, 404.)
The death penalty law adequately narrows the class of death-eligible
offenders. (People v. Prieto, supra, 30 Cal.4th 226, 276.)
Neither Apprendi v. New Jersey (2000) 530 U.S. 466, nor Ring v. Arizona
(2002) 536 U.S. 584, has changed our prior conclusions regarding burden of proof
or jury unanimity. In particular, the jury need not make a unanimous finding under
section 190.3, factor (b), i.e., evidence of unadjudicated criminal activity involving
actual or attempted force or violence or the express or implied threat of force or
violence. (See People v. Griffin, supra, 33 Cal.4th 536, 585; People v. Brown,
supra, 33 Cal.4th 382, 402; People v. Prieto, supra, 30 Cal.4th 226, 275.)
The prosecutor’s discretion whether to seek the death penalty does not impair
any constitutional right. (People v. Brown, supra, 33 Cal.4th 382, 403.)
CALJIC No. 2.90 is constitutional as currently phrased. (People v. Lewis
(2001) 25 Cal.4th 610, 651-652.) So are CALJIC Nos. 2.01, 8.83, 2.21.2 (People
v. Maury (2003) 30 Cal.4th 342, 428-429), and 2.72 (People v. Frye (1998)18
Cal.4th 894, 957-958, 959-960).
To refer to the complaining party as “The People” does not violate due
process or other constitutional principles. (See People v. Black (2003) 114
Cal.App.4th 830, 832-834.)
The judgment against both defendants is affirmed in its entirety.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Lewis and Oliver
Original Appeal XXX
Opinion No. S033436
Date Filed: August 24, 2006
County: Los Angeles
Judge: Jacqueline A. Connor
Attorneys for Appellant:
Eric S. Multhaup, under appointment by the Supreme Court, for Defendant and Appellant Albert Lewis.
Robert M. Myers, under appointment by the Supreme Court, for Defendant and Appellant Anthony Cedric
Attorneys for Respondent:
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C.
Hamanaka, Assistant Attorney General, Sharlene A. Honnaka and Alan D. Tate, Deputy Attorneys General,
for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Eric S. Multhaup
20 Sunnyside Avenue, Suite A
Mill Valley, CA 94941
Robert M. Myers
14001 Ventura Boulevard
Sherman Oaks, CA 91423
Alan D. Tate
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
|1||The People (Respondent)|
Represented by Attorney General - Los Angeles Office
Alan D. Tate, Deputy Attorney General
300 S. Spring Street, Suite 1702
Los Angeles, CA
|2||The People (Respondent)|
Represented by Steven Edward Mercer
Office of the Attorney General
300 South Spring St., 5th Floor
Los Angeles, CA
|3||Lewis, Albert (Appellant)|
San Quentin State Prison
Represented by Cliff Gardner
Law Office of Cliff Gardner
19 Embarcadero Cove
|4||Lewis, Albert (Appellant)|
San Quentin State Prison
Represented by Eric Stephen Multhaup
Law Offices of Fischer & Multhaup
20 Sunnyside Avenue, Suite A
Mill Valley, CA
|5||Oliver, Anthony Cedric (Appellant)|
San Quentin State Prison
Represented by Robert M. Myers
Newman, Aaronson & Vanaman
14001 Ventura Boulevard
Sherman Oaks, CA
|Aug 24 2006||Opinion: Affirmed|
|May 21 1993||Judgment of death|
|Jun 21 1993||Filed certified copy of Judgment of Death Rendered|
5-21-93 for Albert Lewis and Anthony Cedric Oliver.
|May 27 1994||Filed:|
letter, dated 5-23-94, from appellant Oliver, requesting that his appeal be terminated so that he can be executed. (Note: will be treated as a motion.)
|Jun 15 1994||Order filed:|
Appellant Anthony C. Oliver's motion to dismiss automatic appeal denied.
|Mar 6 1998||Counsel appointment order filed|
Robert M. Myers is appointed to represent appellant Oliver on his automatic appeal, including any habeas corpus and related proceedings.
|Mar 6 1998||CAP CONFLICT EXISTS|
CAP HAS A CONFLICT OF INTEREST AS TO APPELLANT LEWIS.
|May 13 1998||Counsel appointment order filed|
Eric S. Multhaup is appointed to represent appellant Lewis on his automatic appeal, including any habeas corpus and related proceedings.
|May 13 1998||Compensation awarded counsel|
|May 28 1998||Application for Extension of Time filed|
By Applt Oliver to request Record correction
|Jun 2 1998||Extension of Time application Granted|
To 7-30-98 To request Record correction
|Jun 19 1998||Filed:|
Request by Counsel (Robert Myers) for Dual representation appointment (Note: received 2-20-98.)
|Jun 19 1998||Filed:|
Request by Inmate (Oliver) for Dual representation (Note: received 2-20-98).
|Jun 22 1998||Application for Extension of Time filed|
By Applt Lewis to request correction of Record.
|Jun 23 1998||Filed:|
Request by Applt Lewis for Dual representation (Note: Form received 5-5-98).
|Jun 23 1998||Filed:|
Request by Atty Multhaup for Dual representation of Applt Lewis. (Note: Form received on 5-5-98).
|Jun 23 1998||Extension of Time application Granted|
To Applt Albert Lewis To 8-24-98 To request Record correction
|Jul 28 1998||Application for Extension of Time filed|
By Applt Oliver to request correction of Record.
|Jul 28 1998||Extension of Time application Granted|
To 9-28-98 To request Record correction
|Jul 31 1998||Filed:|
Suppl Proof of Service of request for Eot.
|Aug 21 1998||Application for Extension of Time filed|
By Applt Lewis to request correction of Record.
|Aug 24 1998||Filed:|
Suppl Amended Decl of Service of request for Eot.
|Aug 24 1998||Extension of Time application Granted|
To Applt Albert Lewis To 10-23-98 To request Record correction
|Sep 22 1998||Application for Extension of Time filed|
By Applt Oliver to request correction of Record.
|Sep 23 1998||Extension of Time application Granted|
To Applt Oliver To 10-28-98 To request Corr. of Record.
|Oct 21 1998||Application for Extension of Time filed|
By Applt to request Record correction
|Oct 26 1998||Extension of Time application Granted|
To Applt Albert Lewis To 11-2-98 To request Record correction
|Nov 3 1998||Received copy of appellant's record correction motion|
appellant Lewis's motion for correction and completion of record. (20 pp.)
|Nov 4 1998||Compensation awarded counsel|
|Nov 9 1998||Received copy of appellant's record correction motion|
appellant Oliver's request for correction of the record (27 pp.)
|Jan 21 1999||Compensation awarded counsel|
|Feb 18 1999||Compensation awarded counsel|
|Mar 24 1999||Compensation awarded counsel|
|Dec 15 1999||Compensation awarded counsel|
|Jul 6 2000||Counsel's status report received (confidential)|
atty Eric Multhaup.
|Jul 10 2000||Counsel's status report received (confidential)|
atty Robert Myers.
|Jul 14 2000||Compensation awarded counsel|
|Sep 1 2000||Record on appeal filed|
C-51 (10,748 pp.) and R-65 (5,042 pp.) including material under seal; Clerk's Transcript includes 3,480 pages of Juror Questionnaires.
|Sep 1 2000||Appellant's opening brief letter sent, due:|
|Sep 5 2000||Counsel's status report received (confidential)|
from atty Myers.
|Sep 7 2000||Compensation awarded counsel|
|Sep 27 2000||Compensation awarded counsel|
Atty Myers for Applt Oliver
|Oct 5 2000||Application for Extension of Time filed|
by applt LEWIS to file AOB. (1st request)
|Oct 6 2000||Application for Extension of Time filed|
By applt OLIVER to file AOB. (1st request)
|Oct 11 2000||Extension of Time application Granted|
To 12/11/2000 to applt LEWIS to file AOB.
|Oct 11 2000||Extension of Time application Granted|
To 12/11/2000 to applt OLIVER to file AOB.
|Oct 16 2000||Filed:|
Amended proof of service for applt Lewis (ext. of time request to file AOB)
|Dec 4 2000||Counsel's status report received (confidential)|
from atty Myers (for applt Oliver)
|Dec 7 2000||Application for Extension of Time filed|
By applt LEWIS to file AOB. (2nd request)
|Dec 12 2000||Application for Extension of Time filed|
By applt OLIVER to file AOB. (2nd request)
|Dec 12 2000||Extension of Time application Granted|
To 2/9/2001 to applt LEWIS to file AOB.
|Dec 13 2000||Extension of Time application Granted|
To 2/9/2001 to applt OLIVER to file AOB.
|Dec 20 2000||Compensation awarded counsel|
|Jan 2 2001||Counsel's status report received (confidential)|
from atty Myers.
|Jan 11 2001||Change of Address filed for:|
Atty Eric Multhaup
|Feb 5 2001||Application for Extension of Time filed|
By applt LEWIS to file AOB. (3rd request)
|Feb 5 2001||Application for Extension of Time filed|
By applt OLIVER to file AOB. (3rd request)
|Feb 7 2001||Extension of Time application Granted|
To 4/10/2001 to applt OLIVER to file AOB.
|Feb 13 2001||Extension of Time application Granted|
To applt LEWIS to 4/10/2001 to file AOB.
|Mar 1 2001||Counsel's status report received (confidential)|
from atty Myers (for applt Oliver).
|Mar 6 2001||Compensation awarded counsel|
|Apr 5 2001||Application for Extension of Time filed|
By applt LEWIS to file AOB. (4th request)
|Apr 6 2001||Application for Extension of Time filed|
By applt OLIVER to file AOB. (4th request)
|Apr 10 2001||Extension of Time application Granted|
To 6/11/2001 as to applt. LEWIS to file AOB.
|Apr 10 2001||Extension of Time application Granted|
To 6/11/2001 as to applt. OLIVER to file AOB.
|May 2 2001||Counsel's status report received (confidential)|
from atty Myers for applt Oliver.
|Jun 7 2001||Application for Extension of Time filed|
by applt. LEWIS to file AOB (5th request)
|Jun 7 2001||Application for Extension of Time filed|
by applt. OLIVER to file AOB (5th request)
|Jun 11 2001||Extension of Time application Granted|
To 8/10/2001 as to applt. LEWIS to file AOB.
|Jun 11 2001||Extension of Time application Granted|
To 8/10/2001 as to applt. OLIVER to file AOB.
|Jun 14 2001||Compensation awarded counsel|
|Jun 29 2001||Counsel's status report received (confidential)|
from atty Myers
|Aug 7 2001||Application for Extension of Time filed|
by applt. OLIVER to file AOB. (6th request)
|Aug 10 2001||Application for Extension of Time filed|
by applt. LEWIS to file AOB. (6th request)
|Aug 15 2001||Extension of Time application Granted|
To 9/24/2001 to applt. LEWIS to file AOB.
|Aug 16 2001||Extension of Time application Granted|
To 10/9/2001 to applt. OLIVER to file AOB.
|Aug 27 2001||Counsel's status report received (confidential)|
from atty Myers for applt Oliver.
|Sep 18 2001||Application for Extension of Time filed|
by applt. LEWIS to file AOB. (7th request)
|Sep 24 2001||Counsel's status report received (confidential)|
from atty Multhaup for applt Lewis.
|Oct 4 2001||Extension of Time application Granted|
To 10/19/2001 to applt. LEWIS to file AOB. No further extensions of time are contemplated.
|Oct 9 2001||Application to file over-length brief filed|
by applt. OLIVER (709 pp. AOB submitted under separate cover)
|Oct 15 2001||Application for Extension of Time filed|
By applt. LEWIS to file AOB. (8th request)
|Oct 16 2001||Order filed:|
Application of applt. OLIVER to file AOB in excess of page limit is granted.
|Oct 16 2001||Appellant's opening brief filed|
by applt. OLIVER. (709 pp.)
|Oct 16 2001||Extension of Time application Granted|
To 11/8/2001 to applt. LEWIS to file AOB.
|Oct 29 2001||Counsel's status report received (confidential)|
from atty Myers for applt Oliver.
|Nov 8 2001||Request for extension of time filed|
by applt. LEWIS to file AOB. (9th request)
|Nov 13 2001||Compensation awarded counsel|
|Nov 20 2001||Filed:|
Amended application in support of request for extension of time to file AOB.
|Nov 28 2001||Extension of time granted|
To 11/30/2001 to applt. LEWIS to file AOB. No further extension will be granted.
|Nov 30 2001||Filed:|
Applt. LEWIS' compendium of record materials regarding Baston-Wheeler argument. (245 pp.)
|Nov 30 2001||Appellant's opening brief filed|
by applt. LEWIS. (268 pp.)
|Dec 13 2001||Compensation awarded counsel|
|Dec 17 2001||Counsel's status report received (confidential)|
from atty Multhaup for applt Lewis.
|Dec 19 2001||Request for extension of time filed|
to file respondent's brief. (1st request)
|Dec 20 2001||Motion for access to sealed record filed|
Motion by respondent for release of sealed records.
|Dec 21 2001||Extension of time granted|
To 3/1/2002 to file resp.'s brief.
|Dec 24 2001||Counsel's status report received (confidential)|
from atty Myers for applt Oliver.
|Dec 31 2001||Opposition filed|
appellant Oliver's opposition to resp.'s motion for release of sealed records
|Jan 2 2002||Compensation awarded counsel|
|Jan 23 2002||Record ordered unsealed|
Respondent's "Motion by Respondent for Release of Sealed Records Necessary to Respond to Issues Raised by Appellants in Their Opening Briefs," filed 12-20-01, is granted in part and denied in part. Respondent's motion is granted in the following respects: The clerk is directed to unseal the following passages of the R.T., and is further directed to transmit copies thereof to respondent: 1. Reporter's Transcript 2-A, pages 201-205 (Oct. 18, 1990). 2. Reporter's Transcript 2-A, pages 221-223 (Oct. 24, 1990). 3. Reporter's Transcript 10-A, page 1299 (Oct. 16, 1992). 4. Reporter's Transcript 10-A, pages 1303-1307 (Oct. 16, 1992). 5. Reporter's Transcript 10-A, pages 1349-1353 (Nov. 18, 1992). 6. Reporter's Transcript 10-B, pages 1406-1412 (Dec. 9, 1992). 7. Reporter's Transcript 20-A, pages 3172-3178 (Feb. 2, 1993). 8. Reporter's Transcript 23-A, pages 3673-3678 (Feb. 8, 1993). 9. Reporter's Transcript 25-A, pages 4061-4063 (Feb. 22, 1993). The clerk is further directed to transmit to respondent copies of: (1) the sealed reporter's transcript of proceedings conducted on October 28, 1991, pages 1-7 (section 987.9 proceeding); (2) appellant Lewis's "Ex Parte Notice of Motion for Appointment of Eyewitness Identification Expert," and appellant Lewis's accompanying declaration, found in the sealed clerk's transcript of Penal Code section 987.9 proceedings, volume 2, at pages 284-287; and (3) the confidential time sheets of appellant Lewis's appointed trial counsel prepared for the three-month time period ending January 6, 1993, the first day of trial. The documents identified in this paragraph shall remain under seal and their use shall be limited solely to the pending proceeding. (Pen. Code, section 987.9.) In all other respects, respondent's motion is denied.
|Feb 7 2002||Counsel's status report received (confidential)|
|Feb 21 2002||Request for extension of time filed|
to file resp's brief. (2 request)
|Feb 25 2002||Counsel's status report received (confidential)|
from atty Myers for applt Oliver.
|Feb 25 2002||Extension of time granted|
To 4/30/2002 to file resp.'s brief. Dep. AG Tate anticipates filing the brief by 11/1/2002.
|Apr 23 2002||Request for extension of time filed|
To file resp's brief. (3rd request)
|Apr 25 2002||Counsel's status report received (confidential)|
from atty Myers for applt Oliver.
|Apr 30 2002||Extension of time granted|
To 7/1/2002 to file resp.'s brief. Dep. Atty. General Tate anticipates filing the brief by 11/1/2002. Only two further extensions totaling 123 additional days is contemplated.
|May 22 2002||Compensation awarded counsel|
|Jun 21 2002||Request for extension of time filed|
to file respondent's brief. (4th request)
|Jun 26 2002||Counsel's status report received (confidential)|
from atty Myers for applt Oliver.
|Jun 27 2002||Extension of time granted|
To 9/3/2002 to file resp.'s brief. Dep. Atty. General Tate anticipates filing that brief by 11/1/2002. One further extension totaling 59 additional days is contemplated.
|Aug 14 2002||Counsel's status report received (confidential)|
from atty Multhaup for applt Lewis.
|Aug 23 2002||Request for extension of time filed|
to file respondent's brief. (5th request)
|Aug 26 2002||Counsel's status report received (confidential)|
from atty Myers for applt Oliver.
|Aug 29 2002||Extension of time granted|
to 11-1-2002 to file respondent's brief. After that date, no further extension is contemplated. Extension granted based upon Deputy AG Tate's representation that he anticipates filing the brief by 11-1-2002.
|Oct 18 2002||Application to file over-length brief filed|
to file respondent's brief. (685 pp. brief submitted under separate cover)
|Oct 28 2002||Counsel's status report received (confidential)|
from attorney Meyers for appellant Oliver.
|Oct 29 2002||Order filed|
Respondent's application for leave to file respondent's brief in excess of 280 pages is granted.
|Oct 29 2002||Respondent's brief filed|
|Nov 12 2002||Request for extension of time filed|
by apellant LEWIS to file appellant's reply brief. (1st request)
|Nov 13 2002||Extension of time granted|
To 1/17/2003 to appellant LEWIS to file reply brief.
|Nov 13 2002||Extension of time granted|
To 1/17/2003 to appellant OLIVER to file reply brief.
|Nov 13 2002||Request for extension of time filed|
by appellant OLIVER to file appellant's reply brief. (1st request)
|Dec 9 2002||Compensation awarded counsel|
|Dec 26 2002||Counsel's status report received (confidential)|
from atty Myers for applt Oliver.
|Jan 13 2003||Request for extension of time filed|
by appellant OLIVER to file appellant's reply brief. (2nd request)
|Jan 13 2003||Request for extension of time filed|
by appellant LEWIS to file appellant's reply breif. (2nd request)
|Jan 15 2003||Extension of time granted|
To 3/18/2003 to file appellant LEWIS' reply brief. After that date, only one further extension totaling about 60 additional days is contemplated. Extension is granted based upon counsel Eric S. Multhaup's representation that he anticipates filing that brief by 5/17/2003.
|Jan 15 2003||Extension of time granted|
To 3/18/2003 to file appellant OLIVER'S reply brief. The court anticiaptes that after that date, only one further extension totaling 60 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
|Feb 28 2003||Counsel's status report received (confidential)|
from atty Myers for applt Oliver.
|Mar 12 2003||Request for extension of time filed|
by appellant LEWIS to file appellant's reply brief. (3rd request)
|Mar 14 2003||Extension of time granted|
to 5/19/2003 to appellant LEWIS to file appellant's reply brief. After that date, no further extension will be granted. Extension is granted based upon counsel Eric S. Multhaup's representation that he anticipates filing that breif by 5/17/2003.
|Mar 17 2003||Request for extension of time filed|
by appellant OLIVER to file appellant's reply brief. (3rd request)
|Mar 19 2003||Extension of time granted|
to 5/19/2003 to appellant OLIVER to file appellant's reply brief. After that date, only two further extensions totaling 75 additional days will be granted. Extension is granted based upon counsel Robert M. Myers's representation that he anticipates filing that brief by 8/2/2003.
|Apr 28 2003||Counsel's status report received (confidential)|
from atty Myers for applt Oliver.
|May 8 2003||Application to file over-length brief filed|
to file appellant LEWIS' reply brief. (149 pp. brief submitted under separate cover)
|May 8 2003||Order filed|
Appellant LEWIS' application for permission to file an oversize reply brief is granted.
|May 8 2003||Appellant's reply brief filed|
appellant LEWIS. (149 pp.)
|May 13 2003||Counsel's status report received (confidential)|
from atty Multhaup for applt Lewis.
|May 16 2003||Request for extension of time filed|
to file appellant OLIVER'S reply brief. (4th request)
|May 20 2003||Extension of time granted|
to 7/18/2003 to file appellant OLIVER'S reply brief. After that date, only one further extension totaling about 15 additional days will be granted. Extension is granted based upon counsel Robert M. Myers's representation that he anticipates filing that brief by 8/4/2003.
|May 21 2003||Filed:|
Declaration of appointed counsel, Eric S. Multhaup, in support of fifth fixed fee progress payment (confidential).
|May 23 2003||Compensation awarded counsel|
|Jun 27 2003||Counsel's status report received (confidential)|
from atty Myers for applt Oliver.
|Jul 15 2003||Request for extension of time filed|
by applt OLIVER to file reply brief. (5th request)
|Jul 18 2003||Extension of time granted|
to 8-11-2003 to file appellant OLIVER'S reply brief. After that date, no further extension will be granted. Extension granted based upon counsel Robert Myers's representation that he anticipates filing the brief by 8-11-2003.
|Aug 11 2003||Application to file over-length brief filed|
by appellant Anthony Cedric Oliver. (318 pp. reply brief submitted under separate cover)
|Aug 19 2003||Order filed|
Appellant Anthony Cedric Oliver's "Application for Leave to File Over-Sized Brief," is granted.
|Aug 19 2003||Appellant's reply brief filed|
Appellant Oliver's brief. (318 pp.)
|Aug 25 2003||Counsel's status report received (confidential)|
from atty Myers for applt Oliver.
|Oct 24 2003||Counsel's status report received (confidential)|
from atty Myers for applt Oliver.
|Nov 4 2003||Related habeas corpus petition filed (concurrent)|
by attorney Multhaup for appellant LEWIS (S120420).
|Dec 17 2003||Compensation awarded counsel|
|Dec 19 2003||Counsel's status report received (confidential)|
from atty Myers for applt Oliver.
|Jan 22 2004||Compensation awarded counsel|
|Feb 9 2004||Related habeas corpus petition filed (concurrent)|
by attorney Meyers for appellant OLIVER (S122545).
|Feb 27 2004||Counsel's status report received (confidential)|
from atty Myers for applt Oliver.
|Mar 17 2004||Compensation awarded counsel|
|Mar 23 2004||Habeas funds request filed (confidential)|
appellant Lewis's request.
|Apr 20 2004||Counsel's status report received (confidential)|
from atty Myers for applt Oliver.
|Apr 21 2004||Compensation awarded counsel|
|Jun 18 2004||Counsel's status report received (confidential)|
from atty Myers for applt Oliver.
|Aug 3 2004||Received:|
from A.G., Alan Tate, requested missing R.T. pg. 4375.
|Aug 19 2004||Counsel's status report received (confidential)|
from atty Myers for applt Oliver.
|Sep 22 2004||Order filed re habeas funds request (confidential)|
re: appellant Lewis's application, filed on March 23, 2004.
|Oct 18 2004||Counsel's status report received (confidential)|
from atty Meyers for appellant Oliver.
|Nov 9 2004||Exhibit(s) lodged|
People's: 35 (A-F), 36 (A-F), 37, 38 and 74 (A-I).
|Jan 12 2005||Compensation awarded counsel|
|Feb 2 2005||Compensation awarded counsel|
|Apr 14 2006||Oral argument letter sent|
advising counsel that case could be scheduled for oral argument as early as the late May calendar, to be held the week of May 30, 2006 in San Francisco. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument.
|Apr 18 2006||Filed letter from:|
Eric S. Multhaup counsel for appellant Lewis, dated April 16, 2006, requesting that case not be scheduled during the period of June 6 - 20, 2006 due to long standing, pre-paid trip.
|May 2 2006||Case ordered on calendar|
June 7, 2006, at 1:30 p.m., in Los Angeles
|May 8 2006||Argument rescheduled|
Case is now to be argued on June 1, 2006, at 1:30 p.m., in San Francisco
|May 12 2006||Filed letter from:|
Alan D. Tate, Dep. Attorney General, dated May 12, 2006 re focus issues for oral argument.
|May 12 2006||Filed letter from:|
attoorney Robery Myers, dated May 11, 2006, re appellant Oliver's focus issues for oral argument.
|May 15 2006||Filed letter from:|
attorney Eric Multhaup, dated May 11, 2006, re focus issues for appellant Lewis.
|May 19 2006||Received:|
letter from atty Multhaup, dated 5-17-2006, advising that he is substituting attorney Cliff Gardner for Leslie Abramson as designated assisting counsel for appellant Lewis. Ms. Abramson has recently retired from the active practice of law.
|May 22 2006||Supplemental brief filed|
"Appellant Lewis' Supplemental Brief Preceding Oral Argument." (1356 words; 5 pp.)
|Jun 1 2006||Cause argued and submitted|
|Jun 9 2006||Compensation awarded counsel|
|Jun 14 2006||Compensation awarded counsel|
|Aug 24 2006||Opinion filed: Judgment affirmed in full|
Opinion by Baxter, J. -----joined by George, C.J., Kennard, Werdegar, Chin, Moreno & Corrigan JJ.
|Sep 7 2006||Rehearing petition filed|
by appellant OLIVER. (11,879 words - 53 pp.)
|Sep 11 2006||Rehearing petition filed|
by appellant LEWIS. (1092 words; 6 pp. - pursuant to rule 40.1(b)(B))
|Sep 13 2006||Time extended to consider modification or rehearing|
to November 22, 2006, or the date upon which rehearing is either granted or denied, whichever occurs first.
|Sep 14 2006||Letter sent to:|
respondent requesting answer to petitions for rehearing; due on or before 10-6-2006.
|Oct 6 2006||Answer to rehearing petition filed|
by respondent. (5170 words; 19 pp.)
|Nov 1 2006||Rehearing denied|
Opinion modified. Petitions for rehearing DENIED.
|Nov 1 2006||Opinion modified - no change in judgment|
|Nov 1 2006||Remittitur issued (AA)|
|Nov 6 2006||Order filed (150 day statement)|
|Nov 6 2006||Exhibit(s) returned|
People's 35A-F, 36A-F, 37, 38 and 74A-I.
|Nov 15 2006||Received:|
acknowledgment of receipt of remittitur.
|Nov 22 2006||Received:|
acknowledgment of receipt of exhibits from superior court.
|Jan 31 2007||Received:|
copy of appellant OLIVER's petition for writ of certiorari. (27 pp. - excluding attached appendices)
|Feb 5 2007||Received:|
letter from U.S.S.C., dated January 31, 2007, advising appellant OLIVER's petition for writ of certiorari filed as No. 06-9146.
|Feb 5 2007||Received:|
letter from U.S.S.C, dated February 1, 2007, advising appellant LEWIS's petition for writ of certiorari filed as No. 06-9173.
|Mar 28 2007||Compensation awarded counsel|
|Apr 18 2007||Compensation awarded counsel|
|Apr 30 2007||Certiorari denied by U.S. Supreme Court|
appellant Oliver's petition.
|Apr 30 2007||Certiorari denied by U.S. Supreme Court|
appellant Lewis's petition.
|Oct 16 2001||Appellant's opening brief filed|
|Nov 30 2001||Appellant's opening brief filed|
|Oct 29 2002||Respondent's brief filed|
|May 8 2003||Appellant's reply brief filed|
|Aug 19 2003||Appellant's reply brief filed|