Supreme Court of California Justia
Docket No. S040575
People v. Marks

Filed 7/24/03



Plaintiff and Respondent,






Defendant and Appellant.

Super. Ct. No. 109184

A jury convicted defendant Delaney Geral Marks of two counts of first

degree murder (Pen. Code, § 187; all further statutory references are to this code

unless otherwise indicated) and two counts of attempted premeditated murder

(§§ 664, 187). With respect to all counts, the jury found true the allegation that

defendant personally used a firearm (§ 12022.5). With respect to the attempted

murders, the jury found defendant personally inflicted great bodily injury upon the

victims (§ 12022.7). It found true the special circumstance allegations that

defendant committed multiple murders (§ 190.2, subd. (a)(3)), committed murder

in the commission, attempted commission or flight from a robbery (§ 190.2,

subd. (a)(17)(A)), and committed murder against a transportation worker

(§ 190.25). At a subsequent proceeding, it found beyond a reasonable doubt

defendant had suffered four prior felony convictions and served two prior prison

terms. The jury set the penalty for the capital crimes at death. The trial court


denied defendant’s motion to modify the sentence (§ 190.4, subd. (e)). This

appeal is automatic (Cal. Const., art. VI, § 11; Pen. Code, § 1239).

For the reasons stated below, we affirm the judgment in its entirety.


A. Guilt Phase

1. The People’s Case

a) The Taco Bell Shooting

On October 17, 1990, at approximately 7:30 p.m., defendant entered the

Taco Bell on Jackson and 14th Streets in Oakland. He appeared normal to

Sherman Boyd, a Taco Bell employee who had seen him on several occasions

inside the Taco Bell and elsewhere in the community. The two men

acknowledged each other. Defendant ordered two encharitos and Boyd began

preparing the order.

Defendant pulled out a gun, pointed it at the head of Taco Bell employee

Mui Luong, and fired. As blood flowed from her face, she fell. Defendant did not

appear upset or excited; he displayed “no remorse, no feelings whatsoever.” It

seemed to customer Grace Haynes that defendant acted as if the shooting were

“something that is done every day.” Defendant quickly left through the

restaurant’s exit onto Jackson Street, where he walked toward Lake Merritt.

Boyd, Haynes, customer Diane Griffin, and Taco Bell assistant manager

Marla Harris all identified defendant in court as the shooter. All four had also

selected defendant from a lineup without hesitation.

Ms. Luong survived the shooting, but suffered brain damage because the

shooting blocked the flow of oxygen and blood to her brain. She also suffered

spinal shock, in which the spinal cord “basically . . . shuts down.” In the three and

one-half years between the shooting and the trial, Luong had never returned home.


Her brother visits her at the rehabilitation center and speaks to her, but she never

responds, and it appears as if she does not recognize him at all.

b) The Gourmet Market Shootings

At approximately 7:40 p.m. that same evening, Peter Baeza and John Myers

were working, and Denise Frelow was shopping, in the Gourmet Market, a

convenience store located on Jackson Street, 795 feet from the Taco Bell. Myers

observed a male enter the store but did not pay him any attention. The male raised

his arm as if to point to one of the bottles in the liquor section. He fired a gun and

Myers fell backwards. Baeza, the store owner, crouched behind the deli cooler,

holding a cordless telephone, with which Myers expected him to call 911.

Defendant fired another shot, prompting Baeza to drop the phone, fall to the floor

and cough blood. Defendant “breezed out” of the store, “real cool and calm, like

nothing had happened . . . .”

Baeza died at the scene. Myers was rushed to the hospital, where he

arrived “in shock and in a coma.” To save his life, Myers required massive

transfusions. Doctors also removed a kidney and a majority of his liver. Myers

was released from the hospital on November 9, but continued to suffer sporadic


An autopsy on Baeza revealed the cause of death was a bullet wound to the

side of the chest. Forensic evidence further revealed the shooter fired the gun

from a distance of approximately 18 inches.

Myers and Frelow testified the shooter was a Black male with braids in his

hair; Myers recalled he wore a brown jacket. Both in court and in his October 22,

1990, statement to police, Myers described the shooter as being approximately

five feet eight inches tall, with a medium build. Frelow testified the shooter was

between five feet six inches and five feet nine inches tall, weighing approximately


155 or 160 pounds. In an earlier statement to police, she described the shooter as

being about five feet six or seven inches tall. Defendant’s self-described

measurements were five feet five inches tall and 150 pounds. On October 22,

1990, Frelow observed a lineup of suspects, from which she selected defendant as

the person she thought shot Baeza and Myers, although she was not sure.

c) The Taxicab Shooting

Austin Williams, a Nigerian émigré, worked for the same taxicab company

as Daniel McDermott. On October 17, 1990, both drivers were lined up at a taxi

stand on 13th Street near Broadway in Oakland. A man and a woman walked

hurriedly toward Mr. Williams’s taxi; the man went to the front passenger door

and the woman went to the rear passenger door. The man was wearing a brown

jacket, and the woman was wearing a multicolored dress that had diamond shapes

in its pattern. She also had a scar on her face. Williams informed the couple that

his was not the next taxi available. The couple then entered McDermott’s taxi,

which drove them away from the stand.

Susan Yi was living at her parents’ home on Eagle Avenue in Alameda. At

approximately 8:30 p.m. that night an automobile drove up that she thought might

be her father’s car but was a yellow taxicab. She saw a Black male standing

outside the front passenger door, leaning in, as if paying the driver. The man was

yelling at a woman, who Yi saw walk away from the taxi. She was Black,

heavyset, and wore a multicolored dress. The couple appeared to be boyfriend and

girlfriend. A “couple of minutes later” Yi heard what sounded like firecrackers,

except louder, coming from the area where the taxicab was parked. She then

heard the “skid of tires backing up real fast,” and she saw the taxi was moving in

reverse very fast.


Robin Menefee had been defendant’s girlfriend for about a year. As of

October 17, they were living together in the park under a train. Defendant had a

.38-caliber gun that he had possessed for a couple of days. That evening, neither

had money, so they “panhandled,” and then bought beer and wine. As Menefee

sat on a platform near Lake Merritt, defendant told her to stay there and wait for

him. He returned 30 to 60 minutes later and told her that he had shot two people.

He acted “like his normal self.”

Menefee accompanied defendant to a taxi stand at 13th and Broadway

because she was scared that defendant would shoot her too if she left him.

Defendant and Menefee attempted to enter one taxi, but the driver, who had an

African accent, told them he was not moving. They then entered McDermott’s

taxi, with Menefee sitting in back and defendant sitting in front. Defendant and

McDermott discussed the World Series game that was being broadcast on the

radio at the time. McDermott drove them to a parking lot near Eagle Avenue,

where defendant’s grandmother lived. Neither defendant nor Menefee had any

money to pay for the ride.

When the taxi stopped, defendant told Menefee to leave the taxi. She went

into an alley to urinate. She heard a gunshot coming from where the taxi was

parked. Defendant ran toward Menefee and told her that he had shot the driver.

Defendant continued to act normally. The taxi’s horn began honking.

The couple knocked on the door of defendant’s grandmother’s home, but

no one answered. They then hid under an apartment house for about 25 minutes,

after which the couple walked to a store and defendant bought some groceries. As

they later sat waiting for a bus, police arrested defendant. Menefee has a scar on

her cheek.

The autopsy on McDermott revealed he had no injuries indicating any kind

of struggle. The cause of death was a bullet wound to the face.


It was McDermott’s long-standing habit to bring five $1 bills to work so he

could make change. Defendant had seven $1 bills and 43 cents on his person at

the time of his arrest; 75 cents but no paper currency was found on McDermott’s

body. No money was found in the taxi.

Sergeant Mark Landes brought Austin Williams to where defendant was

being detained to see whether Williams could identify him. Williams told

Sergeant Landes that defendant looked very similar to the man who attempted to

enter his taxi, but he could not be certain. He noted the defendant’s skin color and

complexion were the same as that of his would-be passenger, and the hairstyle was

also very similar, but Williams had not had a good enough look at the man to

make a positive identification.

Sergeant Landes retrieved a jacket from the alley near the home of

defendant’s grandmother. Defendant refused to put on the jacket in court to

determine whether it fit. The court instructed the jury it could consider that refusal

as reflecting a consciousness of guilt.

d) Evidence Pertaining to All Counts

Sergeant Mark O’Connell of the Alameda Police Department examined

defendant’s revolver and found there were four expended casings and one live

round remaining. Lansing Lee, a criminalist for the Oakland Police Department,

examined the revolver found on defendant and the four bullets removed from the

bodies of Mui Luong, Peter Baeza, Daniel McDermott, and from the vicinity of

John Myers. Lee concluded with “virtually absolute certainty” that the bullets

fired at Baeza and Myers came from defendant’s gun. Lee’s analysis “indicated”

the bullet recovered from McDermott came from the gun, and the analysis

“suggested” the bullet that injured Luong also came from that source. It was


“highly unlikely” that any of the bullets were fired from a gun other than


2. Defense Evidence

Defendant denied shooting anyone at the Taco Bell, the Gourmet Market or

in a taxicab on October 17, 1990. Defendant testified he cashed a check for $170

on October 15. He had instructed Robin Menefee never to ask whether he had

money; defendant always told people he was broke. When Robin Menefee left

defendant’s presence, he spent the rest of the evening of October 17

unsuccessfully looking for certain individuals. After his search, he sat on his

grandmother’s porch, disgusted that she would not answer. Defendant’s

grandmother, Norah Marks, testified that defendant came by after 10:00 p.m., after

which time she does not open her door.

Menefee returned and told defendant that her cousin, Felix Mitchell,

wanted to talk to him. Defendant then obtained the gun presented in the People’s

case. It was the first time in his life he had ever possessed a firearm. He was to

transport it to a mystery drug location on High Street for $150. Defendant later

bought some groceries on Webster Street for Menefee and himself. They were

waiting at a bus stop so defendant could bring the gun to High Street when police

arrested defendant.

Sergeant Mark Landes examined defendant’s hands for gunshot residue

four hours after the shooting. They were clean. Joseph Fabiny, a criminalist for

the Alameda County Sheriff’s Department, testified that gunshot residue would

more likely be found on someone if he or she had fired four shots instead of one.

On May 27, 1991, Fabiny examined the jacket recovered by the People for

gunshot residue and found none.


3. Rebuttal

Sergeant Mark O’Connell interviewed defendant just past midnight on

October 18, 1990. Defendant told Sergeant O’Connell he had found the gun a

couple of days earlier. Lieutenant Daniel Voznik also questioned defendant in the

early morning hours after the shootings. Defendant explained he had found the

gun in some bushes on San Pablo Avenue two days prior to the shooting. He did

not mention that someone had given it to him to transport in exchange for $150.

Johnny Wemken was working as court bailiff on the afternoon of

March 31, 1994. He observed defendant conversing with another inmate charged

with murder, Latonya Harris. Harris asked defendant why he was in custody, and

defendant answered that “he was in for three murders.” When she asked how they

died, defendant answered, “I shot them.”

4. Surrebuttal

Harris confirmed some of Bailiff Wemken’s testimony. She asked

defendant about his charges, and he responded that he was fighting a murder

charge. When she asked how they died, he answered, “They got shot.” He did not

say, “I shot them.”

B. Penalty Phase

1. The People’s Evidence

The People presented evidence of specific instances of defendant’s

misconduct against both civilians and law enforcement officers. The People also

presented evidence of the effect of the murders on the families of Daniel

McDermott and Peter Baeza.

a) Other Violent Criminal Conduct

Brenda Bailey grew up with defendant. She was home on December 14,

1978, when defendant visited to use her phone. When he finished his call, he


made derogatory comments about Bailey’s brothers. After she told defendant she

did not want to hear his comments, he hit her in the head with a telephone.

Defendant pulled her from her chair onto the concrete floor, breaking two of her

teeth. Defendant then pushed her through the very thick bathroom window.

Defendant threw fingernail polish and Comet on her. For this incident, she needed

26 stitches on the inside of her chin and 27 on the outside. Defendant threatened

that if she told anyone about the attack, he would put a bomb in her six-year-old

son’s mouth, cut off her nine-year-old son’s head, and kill her mother.

Shirley Hitchens had lived with defendant for about a year. He beat her and

stabbed her with a knife, so she ran away, leaving her keys, clothes, furniture,

everything. In the early morning hours of January 31, 1982, Hitchens was walking

on a street when defendant drove up and told her to get in his car. She refused

because she was scared. She ran and told Bobby Jones, who approached

defendant’s car. Defendant tried to grab Hitchens, but Jones intervened. Witness

Jeff Heilbronner saw defendant holding a knife, chasing another man around a car.

Someone shouted that the police were coming, and defendant jumped into his car,

and put it in reverse. Officer Terry Lewis grabbed Bobby Jones, and they fell to

the ground. Police officers twice ordered defendant to exit and not start his car,

but defendant began driving backwards. The officers warned defendant that there

were people behind him. Defendant drove over both Jones and Officer Lewis. If

defendant had driven straight backwards, he would have driven over Officer

Lewis’s lower leg. Instead, defendant turned the wheels so the car drove over the

officer’s lower back. Officer Lewis suffered bruises when the car pinned his arms

against the street.

On December 24, 1988, Jim Payne and his son Trent went to a 7-Eleven

store to rent a movie. When the father pulled out money to pay, defendant


grabbed about $400 to $500. Defendant knocked Payne to the ground and

bloodied his nose.

The People also described several instances of defendant’s violent criminal

conduct inside correctional facilities. On February 4, 1989, Alameda County

Deputy Sheriff Greg Breslin heard a loud banging noise coming from defendant’s

cell in the North County Jail. When Deputy Breslin investigated, defendant told

him, “I didn’t kick the cell, and fuck you.” Defendant adopted a “karate stance”

and challenged Deputy Breslin to fight. Deputy Breslin left the cell and returned

with another deputy, when defendant lunged at Deputy Breslin. Defendant bit him

and punched him in the groin. Defendant taunted Deputy Breslin, “I bit you and

punched you in the balls. How does it feel, punk?” Deputy Breslin recalled

defendant bragged, “I bit him real good. And I remember he cried out like a


On January 19, 1986, James Hewitt was serving as watch commander of

California Men’s Colony West Facility at San Luis Obispo. Defendant, as part of

a group of Black inmates, approached another inmate named Herzog and struck

him in the nose. Such interracial assaults are a special concern to prison security


On March 28, 1989, defendant kicked backward karate-style at Deputy

Jones, who was transporting him in an elevator at North County Jail. When

defendant and the deputies escorting him arrived at their destination, Deputy Jones

removed defendant’s handcuffs. Defendant put his foot on the wall and drove

himself backward into Deputy Jones.

On October 1, 1990, when confined at Santa Rita Jail, defendant asked

Deputy Sheriff Sebastian Tine for toilet paper and a razor for shaving. Deputy

Tine tucked the razor blade inside the paper and gave them to defendant. When


Deputy Tine was distracted, defendant struck him in the face, drawing blood and

knocking off his glasses.

On November 6, 1992, defendant was sitting in a courtroom, with his arms

shackled. When his attorney Joseph Najpaver entered the room, defendant

“bolted” from his chair, and began kicking Najpaver in the groin and waist area

very fast, at least five times. Najpaver was defendant’s attorney from October 30,

1990, until shortly after the November 6 attack.

b) Impact on Survivors

Jacqulin Le Gree was Daniel McDermott’s older daughter. He always was

kind and loving, and went out of his way to help strangers. He was never violent

or angry. Le Gree would have been able to handle her father’s death better if it

had occurred through natural causes or an accident, rather than defendant’s

purposeful act. Le Gree feels the loss most painfully when her children tell her

they do not remember their grandfather.

Ingrid Page was Daniel McDermott’s younger daughter. She last saw her

father as she was preparing to go to Germany as part of her military service. She

could not understand why anyone would want to kill her father, who had never

done anything to anybody. Initially, the hardest aspect of her father’s death was

its unnatural cause. Now the hardest part was that her father never had the chance

to meet her husband or her daughter.

Thomas Carter was an employee of Peter Baeza’s. Until he met Baeza, no

one would give Carter a job because of his seizure disorder. Baeza treated Carter

as a human being, when other people did not and helped him obtain disability

payments for the disorder. He treated Carter like a son. Carter’s seizures had

almost disappeared due to Baeza’s assistance. Since Baeza’s death, however,

Carter has lost his job and has been unable to find another. Carter’s physical


condition then deteriorated, and his fiancée left him. Baeza often extended credit

to the elderly of the neighborhood and was kind to everybody.

Carman Baeza Waller, Peter Baeza’s daughter, described her father as a

“class act, a gentleman.” He taught her about her Chilean heritage and that males

can be gentle. She looked for someone like her father when she was ready to get

married. The most difficult part of her father’s passing was the look in her

mother’s eyes when she learned her husband of 39 years was dead. After the

funeral, the family brought a collage of photographs from Baeza’s life to his

widow’s home. Carmen Waller’s four-year-old son moved all his toys next to the

collage and explained, “I just wanted to play with Poppo, like we used to.”

Peter Baeza’s memorial service was standing-room only. People whom the

family did not know approached them and described Baeza’s acts of kindness.

Many elderly people who could not attend wrote letters and cards. It would have

been easier for Waller to accept her father’s death if it had been the result of poor

health. She wonders what it will be like for her children to grow up without their


Fanny Baeza met her future husband when she was nine years old and he

was seven. They immigrated to the United States from Chile on Easter Sunday,

1962, with their two children, whom they hoped to raise in a better environment.

Baeza worked as an aircraft mechanic until he bought the Gourmet Market in

1972. Fanny Baeza worked as a public health nurse until her retirement in 1985,

when she was supervising nearly 100 other nurses. Peter Baeza was responsible,

honest, and trustworthy. He was a good father, a good husband, and a good

provider. Fanny Baeza was recovering from breast cancer when her husband was


When Ms. Baeza lost her husband, she lost everything. With her children

grown and moved out, all she had was her husband for company. She suffered


financially, as there was little insurance, and nothing remained after probate. She

had to sell her home and begin working again. Since the murder, she wakes up

every morning at 3:15 a.m., the time when she learned of her husband’s death

from a telephone call. Peter Baeza used to call his wife four or five times a day to

tell her how much he loved her. After his death, however, she has become very

lonely, as there is “nobody to call me, nobody to share my day with, nobody to

hear how his day was. Just me.”

Peter Baeza taught his son Charles a work ethic and politeness. Although

the family initially came together after his death, they have since grown further

apart. The financial impact of Peter Baeza’s death was devastating. There was

not enough money in the estate even to pay for the funeral. When Charles and

Fanny Baeza visited the store after the murder, people thanked them for letting

Peter Baeza be a part of their lives. One woman told Charles how she moved to

the neighborhood, fleeing her former husband. She had a young son and no

money. Peter Baeza extended her credit until she got a job. She eventually

became successful, and stated she never would have made it but for Peter Baeza’s

generosity and faith in her. As Charles Baeza summarized, “This is not a regular

guy. There is nobody like him. There never will be. . . . I’ll live my life trying to

be like him.”

2. Defense Evidence

Defendant testified, and presented several witnesses who described his

background. Defendant’s own testimony covered both the general circumstances

of his life and the specific incidents raised by the People’s penalty phase evidence.


a) Background

(1) Defendant’s Testimony

Defendant was the oldest child in a family of six. His father worked in

construction, and his mother worked for the phone company and then at different

schools. He joined the Navy in 1974 when he was 18, and left two years later. He

received money to continue his education from the government, but he did not do

any work because he did not want to. He began working as a receptionist in 1978

when his girlfriend was pregnant. For the next decade, defendant alternated

among various odd jobs and prison.

After an October 1988 bus accident, defendant began suffering epileptic

seizures. His condition was aggravated when he learned of his mother’s death.

He was in prison and unable to attend the funeral. No one in his family told

defendant for four months because they thought it would affect him and his

participation in prison programs. Defendant was receiving medication for seizures

at the time of the shootings.

Defendant regretted that his father never gave him a “father-son” talk about

the importance of staying in school. His father was jealous that defendant earned

his high school diploma at age 16, whereas he did not obtain one until he was 40.

(2) Other Witnesses

Several other witnesses testified at the penalty phase, including defendant’s

daughter Relisha Marks, his sister Elaine Marks Bell, his aunt Bobbie Jane Redic,

his cousin Lorraine Winn, his brother Damon Marks, and three women who had

known defendant since his childhood or birth, Reverend Betty Williams, Effie

Jones, and Willoris Childs, the grandmother of defendant’s daughter. They

presented mostly consistent testimony that described defendant as having grown

up in a good family environment with religion, where there was no drug or alcohol

abuse, no domestic violence, and with a father who encouraged education and hard


work. Defendant was helpful to his family as a child. He had no more problems

than the average child and was never in serious trouble.

Defendant’s problems began after his discharge from the Navy where he

“lost himself” through drugs. “[I]t seem[ed] as if there had been [a] deterioration

in [defendant’s] thought processes,” as defendant was “talking off the wall.”

Defendant’s father disapproved of defendant’s drug use, but defendant refused to

listen to his father’s advice. Because of defendant’s trouble, his father did not

want him at the family home, at the home of defendant’s grandmother, or at the

funeral of defendant’s mother. Defendant had a close relationship with his mother

and his inability to attend her funeral may have contributed to his problems.

Defendant never hit his daughter (age 15 when she testified), or anyone else

in her presence. She never saw him intoxicated and never had any problems with

him. When he was not in prison, she saw him once or twice a week.

b) Other Violent Criminal Conduct

Defendant testified regarding the specific examples of misconduct

described in the People’s case. Defendant admitted he had four prior convictions,

but asserted he had been falsely convicted. He claimed Shirley Hitchens wanted

to enter his car, and Bobby Jones was the one with a knife chasing defendant. He

did not think he ran over Officer Lewis, but if he did, it was an accident that

happened as he fled for his life. Defendant punched Brenda Bailey in the face

only after she had tried (unsuccessfully) to throw hot chicken grease in his face.

Defendant protected himself against Jim Payne’s “tak[ing] the law into his own

hands,” although defendant admitted he was wrong in taking Payne’s money. He

never hit Payne with his hands.

Defendant explained that he did not attack Deputy Breslin. Defendant had

been reading his Bible when the deputy called him a “son of a bitch.” Defendant


said, “You are the same punk motherfucker [who] called my mother a bitch. Fuck

you.” Deputy Breslin then came running at defendant. Defendant punched

Deputy Breslin in the groin. Defendant slapped him around, but Deputy Breslin

and another deputy hit defendant in the groin, and then they all started laughing.

Defendant did not kick Deputy Jones, who had been shoving defendant.

Defendant punched him, and told him, “I’m just a person, all you got to do is ask

me, and I’ll move.” Defendant struck Deputy Tine because the deputy harassed

him with racial remarks and threw away his book about the prosecution and

execution of Julius and Ethel Rosenberg. Defendant attacked inmate Herzog after

Herzog jumped him. Defendant initially ran away, but realized he had to fight

back, so he did.

Defendant admitted kicking his attorney Joseph Najpaver. Defendant

wanted different counsel because Najpaver told him to plead guilty and accept a

sentence of life imprisonment, and did not gather evidence to show defendant was

innocent. Defendant planned the attack to secure new counsel. “I knew [if] it was

a verbal conflict that wouldn’t grant me justice, but . . . if it’s physical and verbal

he has to be removed. . . . I knew I had to make contact to get rid of him.”

3. Rebuttal

Deputy Sheriff Rachael Lauricella obtained a statement from defendant

after his attack on Deputy Tine. The two men often exchanged insults. After

defendant stated, “I’ll hit you upside your motherfucking head if you disrespect

me,” Deputy Tine then remarked, “I’ll make that son of a bitch regret the day he

ever lived.” When defendant asked about Deputy Tine’s accusation that defendant


was a cell soldier1 hiding in administrative segregation, Deputy Tine repeated the

accusation, so defendant hit him. Defendant did not tell Deputy Lauricella that

Deputy Tine had used any racial epithets.

4. Surrebuttal

Defendant agreed that he made the statement to Deputy Lauricella, but

asserted that Deputy Tine had engaged in racial slander for several weeks.

Defendant completed a grievance form against Deputy Tine, who tore it up in

defendant’s face.


A. Competency Issues

1. Sufficiency of the Evidence

Defendant contends the jury erred in finding him competent to stand trial,

thereby depriving him of due process under both the Fourteenth Amendment to the

United States Constitution and article I, section 15 of the California Constitution.

A defendant is incompetent if “as a result of mental disorder or developmental

disability, the defendant is unable to understand the nature of the criminal

proceedings or to assist counsel in the conduct of a defense in a rational manner.”

(§ 1367, subd. (a).) The defendant has the burden of proving incompetency by a

preponderance of the evidence. (§ 1369, subd. (f); People v. Marshall (1997) 15

Cal.4th 1, 31 (Marshall).) An appellate court reviews the record in the light most

favorable to the jury’s determination. (Ibid.) We conclude that substantial

evidence supports the jury’s competency finding. We further find the trial court

properly declined to order a subsequent competency hearing.


Deputy Lauricella explained the term was an insult that described someone

who talked big behind his cell door but did not back up that talk when the door
was open.


a) Facts

The defense presented several witnesses to establish defendant’s

incompetence to stand trial. Joseph Najpaver, defendant’s initial attorney,

testified that defendant started out as a cooperative client. But defendant often

interrupted the preliminary hearing proceedings. Defendant wished to have a

different attorney represent him because he believed that Najpaver thought he

was guilty. Defendant brought four Marsden2 motions to obtain new counsel,

during which defendant asserted Najpaver had called him a “nigger,” which

Najpaver had not. Defendant complained that Najpaver and cocounsel Joseph

McGrew “have tried to con . . . or manipulate me to take life sentences for

something I did not do.” Najpaver had tried to negotiate a plea through which

defendant could receive a sentence of life imprisonment without possibility of

parole. Defendant became very angry during the preliminary hearing when his

former girlfriend provided damaging testimony.

Judge George Nelson presided over defendant’s preliminary hearing.

During the hearing, the prosecutor tried to photograph defendant, but defendant

tried to keep his eyes closed, which gave a distorted picture of his face. Judge

Nelson considered this a rational act because it would prevent the prosecution

from developing an accurate photograph. Considering defendant’s overall

behavior during the hearing, however, Judge Nelson concluded defendant “was

acting out in a manner prejudicial to his case,” by distracting his attorney and

influencing his former girlfriend during her testimony. Defendant did not act out

that way when police officers testified.

Dr. James Anderson’s stipulated testimony was that all defendants found

incompetent to stand trial go to Atascadero State Hospital. Dr. John Riley, a


People v. Marsden (1970) 2 Cal.3d 118.


psychologist there, testified that the hospital has a trial competency program that

attempts to restore defendants to competency so they can stand trial. Of those

defendants who come to the hospital, 90 percent return to stand trial, and 93

percent of those complete the trial process. Defendants may stay at Atascadero

State Hospital beyond three years if they have committed a serious felony

involving great bodily injury or the threat of it and remain incompetent and

dangerous. One defendant remained for 12 years until he was deemed competent

to stand trial.

Dr. Fred Rosenthal examined defendant on February 24, 1992. Dr.

Rosenthal concluded defendant was not competent to stand trial, basing this

conclusion mostly on descriptions of his behavior “by a number of people over the

years.” Dr. Rosenthal opined that defendant did not understand the nature of the

charges against him, because defendant indicated the charges concerned only the

possession of a weapon. Defendant was cooperative with Dr. Rosenthal, although

defendant’s comments occasionally went off on tangents. Dr. Rosenthal

considered defendant paranoid because he believed his attorney had made a deal

with the district attorney to convict him and there was thus no chance of

defendant’s “getting any kind of trial.” On cross-examination, Dr. Rosenthal

stated that if he himself were a defendant who maintained his innocence, and his

counsel sought to have him plead guilty and receive a sentence of life

imprisonment without possibility of parole, he would take steps to find a different

attorney. Dr. Rosenthal did not know that defendant had attempted to do so on

four separate occasions.

Josalyn Harris, a mental health counselor at North County and Santa Rita

Jails, saw defendant every week or two from October 1990 to June 1992. He

complained to her about the collusion between the district attorney and the public

defender. Defendant trusted Susan Sawyer (his attorney for the competency


hearing) and thus cooperated with her. Defendant was aware of the possibility that

he might be sentenced to death.

Deputy Sheriff Richard Quinn worked at Santa Rita Jail and conducted

weekly reviews of defendant. Deputy Quinn often recommended that defendant

be housed in administrative segregation or isolation. Defendant wished to remain

segregated from the rest of the jail; he indicated he had received threats from other

inmates. Defendant made excuses to remain segregated. He once stated that if

moved, he would have “disciplinary problems,” which Deputy Quinn interpreted

to mean he might assault staff, other inmates, and generally refuse to “go[] along

with the program of the jail.” On one occasion, Deputy Quinn wrote, “I believe

that [defendant] is just hiding from the rest of the jail. He does seem to have some

mental problems, remain A[dministration] I[solation].” Deputy Quinn believed

defendant was competent to stand trial.

Dr. Karen Gudiksen worked as a psychiatrist at the Santa Rita Jail. She had

examined approximately 250 people for competency over 20 years and found most

of them incompetent. She examined defendant in February 1992, in March 1992,

and in July 1992. She concluded he was not competent to stand trial, basing that

on defendant’s disorganized speech and bizarre descriptions of physical ailments.

Defendant paused during the interview, as if he were hearing voices. In

determining defendant’s incompetency, Dr. Gudiksen also relied on his history,

which was provided by defendant personally and Attorney Najpaver. Dr.

Gudiksen’s report stated defendant “goes on and on . . . about discrepancies

between his appearance and that described by some of the witnesses.” Dr.

Gudiksen had not read the preliminary hearing transcript, and thus did not know

whether defendant’s point was valid.

Francis McGrew was cocounsel with Najpaver, who was the lead attorney.

During the preliminary hearing, defendant talked to himself, laughed


inappropriately, and made objections. Robin Menefee’s testimony “set him off.”

He remarked, “That’s not true. She’s got a plate in her head. She doesn’t know

what she’s talking about. She’s not a good witness.”

Dr. David Stein, a clinical psychologist, administered neuropsychological

tests to defendant. Defendant had impaired motor skills. Defendant also has

difficulty sequencing material. It took him 170 seconds to complete a project

connecting dots, which the average person completes in 15 to 30 seconds. He was

also unable to copy shapes and figures accurately. Defendant could count

backwards from 20 and could correctly multiply four times three in his head, but

needed to use his fingers to multiply eight times six. He correctly recited the

alphabet, although he added the letter “u” after “q.” He correctly identified the

President of the United States and his predecessor, and the Governor of California.

Based on personal observations and the records he reviewed, Dr. Stein concluded

defendant had emotional and organic problems.

The People presented three witnesses. Holly Lasalle, an accounting

supervisor at Santa Rita Jail, testified that prison records reflected defendant never

spent more money at the prison commissary than he had remaining in his account.

However, she admitted that the records would not reflect any activity if defendant

attempted to make a purchase with insufficient funds. Sergeant Harvey Lewis

testified that defendant completed paperwork requesting legal materials. Deputy

Sheriff Timothy Durbin, a classification officer at Santa Rita Jail, was responsible

for the assignment of inmates. In June 1992, defendant asked Deputy Durbin for a

work assignment. Defendant believed that if he had a job it would look better to

the jury in his upcoming trial. Defendant told Deputy Durbin that he was rejecting

an invitation to appear on the television program America’s Most Wanted because

his attorney had advised him that it was not in his best interests, as he might “trip

himself up.” Defendant stated he would have a competency hearing soon. Deputy


Durbin asked whether that was a hearing to decide whether defendant could fire

his attorney, and defendant responded, “No, it is a competency hearing to see

whether or not I am sane.” Defendant added, “I should lose that in June and I’ll

start my main trial later in the year or early ’93.”

In rebuttal, the defense called Dr. Jules Burstein, a clinical and forensic

psychologist. Dr. Burstein had examined approximately 100 individuals for

competency over the past 11 years, and found approximately 60 to 70 percent of

them incompetent. He had examined defendant for competency in 1989 regarding

a prior case. At that time, Dr. Burstein concluded defendant was competent to

stand trial, as he understood the nature of the charges “only too well,” and that

although his former attorney might have believed defendant was incapable of

cooperating with him, Dr. Burstein believed defendant did not wish to cooperate.

Dr. Burstein had recorded defendant as a malingerer, someone who acts crazy to

stop judicial proceedings against him. In July 1992, however, Dr. Burstein

examined defendant and determined he was not competent, although defendant did

know with which offenses he was charged. Defendant told Dr. Burstein that “he

got along fine” with his new attorney, Susan Sawyer. Before the 1992

examination, Attorney Sawyer informed Dr. Burstein of the conclusions of both

Dr. Rosenthal and Dr. Gudiksen, with whom Dr. Burstein had become acquainted

in 1977. Dr. Burstein was perplexed by Attorney Sawyer’s invitation to examine

defendant, because the determination of incompetency by two doctors is usually

sufficient. In explaining the change in his assessment of defendant from 1989 to

1992, Dr. Burstein noted that the clinician in 1989 found defendant nonpsychotic,

whereas in 1992, Joslyn Harris, whose reputation as a clinician Dr. Burstein

respected, found defendant psychotic.

The jury determined defendant was competent to stand trial. The defense

moved for a judgment notwithstanding the verdict. The court denied the motion,


observing that Deputy Durbin’s testimony alone provided substantial evidence of

defendant’s competency.

b) Discussion

Defendant contends insufficient evidence supports the jury’s finding.3 He

relies on People v. Samuel (1981) 29 Cal.3d 489 (Samuel), where the defense

“presented an impressive array of evidence” demonstrating incompetence. (Id. at

p. 497.) We further found that neither of the People’s witnesses contradicted any

of the defense testimony. (Id. at p. 498.) We find Samuel distinguishable from

this case.

First, the defense evidence was not compelling. Although the defense

presented expert testimony, the People’s cross-examination called into question

the reliability of the experts’ analyses. As we have explained, expert testimony is

only as reliable as its bases (Marshall, supra, 15 Cal.4th at p. 32), and here they

were suspect. Dr. Gudiksen’s information about defendant’s history was limited

to that which she received from defense counsel and her meetings with defendant.

Dr. Burstein acknowledged he was familiar with the determinations of the other

experts (one of whom was an acquaintance) before examining defendant for

himself. Dr. Burstein also justified his opinion by citing the opinion of another


Furthermore, the defense experts who considered defendant incompetent

were unfamiliar with much of the evidence that tended to render defendant’s

behavior comprehensible. Dr. Rosenthal concluded defendant was paranoid and


Although defendant cites evidence developed during the guilt and penalty

phases, our review is limited to the evidence before the court at the time of the
competency hearing. (See People v. Welch (1999) 20 Cal.4th 701, 739 [trial
court’s decision not to declare doubt as to defendant’s competency cannot be
challenged on appeal by reference to subsequently produced evidence].)


unrealistic about the proceedings because defendant was convinced his attorney

and the district attorney had made a deal to convict him so he would not get a trial.

But Attorney Najpaver had in fact attempted to conclude a plea agreement with

the district attorney, which would have generated a conviction without a trial. Dr.

Rosenthal testified that if his own attorney had tried to have him plead guilty for a

sentence of life imprisonment without possibility of parole even though he

maintained his innocence, he himself would seek new counsel. Dr. Rosenthal did

not know that defendant had tried to do so on four separate occasions. Similarly,

Dr. Gudiksen’s report stated defendant “goes on and on . . . about discrepancies

between his appearance and that described by some of the witnesses.” Dr.

Gudiksen assumed that this repetition indicated that defendant was not “focusing

on the issues,” but she had not read the preliminary hearing transcript, and thus did

not know whether defendant’s concern was a legitimate criticism of the People’s

case against him.

Second, and more importantly, whereas the prosecution in Samuel failed to

contradict any of the defense testimony (Samuel, supra, 29 Cal.3d at p. 498), the

People below produced abundant evidence that contradicted the defense

testimony, most of it coming from defendant’s own mouth. For example, although

Dr. Rosenthal opined that defendant believed the charge concerned only

possession of a weapon, defendant himself remarked, “I didn’t do no Taco Bell

shootings and no Gourmet shootings, and no cab shootings.” Defendant’s

statements support the inference that he fully recognized the magnitude of the

charges he faced and the potential consequences, as well as counsel’s

unwillingness to seek an acquittal. “And this is a life or death, either I get life or I

get death. It’s just cut and dry. Either you get life or you get death, and here are

two people playing with your life. I need somebody who is serious that want to

see me victorious . . . .” Defendant objected to the fact that Attorneys Najpaver


and McGrew “tried to . . . manipulate me to take life sentences for something I did

not do.” At one Marsden hearing, defendant told the court, “I want a public

defender . . . who I can work with, understand me. . . . I know I can’t pick my own

lawyer, but I’m saying if there is a conflict and my life is at stake . . . . I can’t get

my rights with the counsel who don’t believe I’m innocent. He don’t believe I’m

innocent, and he’s addressed me as such.” Defendant also indicated he understood

the nature of the competency hearing: “[I]t is a competency hearing to see

whether or not I am sane.”

Defendant’s statements and conduct further showed he could assist counsel

in the conduct of the defense. Although he did not cooperate with the attorney

who was trying to arrange defendant’s conviction for noncapital murder, he

cooperated with Attorney Sawyer because he trusted her. He took her advice not

to appear on television and he sought work to make a good impression on the jury.

Defendant thus showed he was able to cooperate with counsel but sometimes

refused to do so, largely to achieve a substitution of counsel. In an earlier

proceeding described during the instant hearing, defendant remarked, “I know I

acted like a zip-down fool in the courtroom. I don’t want Mr. Denton as my

attorney and I will not cooperate with him.” Defendant promised to cooperate and

refrain from acting like a “zip-down fool” if he were granted a new attorney.



defendant’s outbursts did not comport with

courtroom protocol, they did reflect his attempt to provide advice to counsel. For

example, defendant complained that counsel failed to ask a witness who claimed

to have been five feet from the smiling perpetrator whether there was anything

unusual about the perpetrator’s teeth, as defendant had missing teeth. We

conclude there was substantial evidence from which the jury could rationally infer

defendant’s competence to stand trial.


Defendant further contends that his conduct during trial warranted a further

examination of his competency, and the trial court erred in failing to suspend the

proceedings. However, once a defendant has been found to be competent, even

bizarre statements and actions are not enough to require a further inquiry.

(Marshall, supra, 15 Cal.4th at p. 33.) Reviewing courts give great deference to a

trial court’s decision whether to hold a competency hearing. “ ‘ “An appellate

court is in no position to appraise a defendant’s conduct in the trial court as

indicating insanity, a calculated attempt to feign insanity and delay the

proceedings, or sheer temper.” ’ ” (Ibid., quoting People v. Danielson (1992) 3

Cal.4th 691, 727, disapproved on another ground in Price v. Superior Court

(2001) 25 Cal.4th 1046, 1069, fn. 13 (Price).)

Moreover, defendant’s most conspicuous outburst during trial amply proves

his ability to understand the proceedings and assist counsel. When the prosecutor

concluded his redirect examination of John Myers, defendant interrupted, “Your

Honor, I object. This person stated it was not me, it was No. 6 who committed the

shooting. . . . He did not even ask.” Discussion among the attorneys and the court

revealed that Myers had selected a suspect other than defendant at a photographic

lineup. The prosecutor recognized, however, there was a sound tactical reason for

defense counsel’s not asking Myers about his failure to select defendant: Myers

had indicated “it was a toss up” between defendant and the “number six”

individual; Myers finally chose the latter. Although there was a legitimate reason

for not asking Myers about his selection at the lineup, defendant’s comment

reflected he comprehended not just the nature of the proceedings but the state of

the People’s case and its potential deficiencies. Defendant also demonstrated his


ability to offer assistance to counsel, even if such assistance was neither solicited

nor welcomed.4

Defendant was properly found competent to stand trial.

2. Defendant’s Requested Instruction

Defendant requested the following special instruction: “If the defendant is

found mentally competent to stand trial, criminal proceedings will immediately be

resumed and the trial on the offense charged shall be held in the normal course of

the court’s business. [¶] If the defendant is found mentally incompetent to stand

trial, criminal proceedings shall remain suspended until such time as he becomes

mentally competent. In the meantime, the court will order the defendant to be

confined at a state hospital for the care and treatment of the mentally disordered

where he will participate in a program designed to promote the defendant’s speedy

restoration to mental competence.” The trial court refused to read the instruction.

The court stated that Dr. Riley’s testimony regarding Atascadero State Hospital

had already provided the jury with this information, although the court expressed

an inclination to instruct if the jury were confused about the issue. Defendant

contends the court erred in failing to read the instruction, thereby violating his

rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United

States Constitution, and article I, sections 7, 15, and 17 of the California

Constitution. We find no error.


The defense again moved for a competency hearing after defendant testified

in the guilt phase. The motion was based in large part on defendant’s frequent
nonresponsiveness to the questions posed. As the trial court found, however,
defendant strategically ignored the limited scope of questions and aggressively
presented to the jury material that would either tend to raise a doubt about his guilt
or engender sympathy for him. The court considered this “an intentional and
volitional and willful decision by him to go outside the scope of questions and
place material before the jury that he perceived to be in his interests.”


The defendant based the request on People v. Moore (1985) 166

Cal.App.3d 540 (Moore). Moore held that a defendant in a sanity proceeding is

entitled upon request to an instruction that a finding of not guilty by reason of

insanity does not entitle the defendant to immediate release as would an ordinary

acquittal. We explained the instruction was designed to preclude the possibility

that jurors would find the defendant sane simply because they perceived no other

way to prevent him from returning to the community. (See People v. Kelly (1992)

1 Cal.4th 495, 538.) Defendant argues the jury likewise might have found

defendant competent simply to prevent his permanent immunity from punishment.

The requested instruction, however, characterized defendant’s return to

competence and the eventual resumption of criminal proceedings as inevitable.

Notwithstanding the hospital’s attempt “to promote the defendant’s speedy

restoration to mental competence,” there was no guarantee of a speedy recovery,

and the instruction was therefore flawed. Furthermore, we have declined to extend

Moore beyond its original context. (People v. Thomas (1992) 2 Cal.4th 489, 539.)

Finally, because the proposed instruction is not constitutionally based, its

erroneous omission does not warrant reversal unless a different result would have

been reasonably probable, which is not the case. (See People v. Young (1987) 189

Cal.App.3d 891, 916 [failure to read Moore instruction reviewed for prejudice

under standard of People v. Watson (1956) 46 Cal.2d 818, 836 (Watson)].)

B. Guilt Phase

1. Courtroom Security

Defendant contends the trial court erred in placing a deputy sheriff next to

him during his testimony. He contends this error deprived him of his rights under

the Fourth, Fifth, Eighth, and Fourteenth Amendments to the United States


Constitution and article I, sections 7, 15, and 17 of the California Constitution.

We find no error.

Prior to the start of trial, defense counsel requested that defendant be

subject to physical restraints in the courtroom. One defense attorney expressed

fear that defendant might injure him during trial; the other attorney indicated he

was concerned not with defendant’s injuring him but with defendant’s harming his

defense by misconduct before the jury. The trial court declined to impose the

restraints, concluding the record before it failed to establish the “manifest need”

required by People v. Duran (1976) 16 Cal.3d 282 (Duran), for the restraints.

The proximity of the witness stand to the jury box prompted the court to

revisit the issue once defendant was about to testify. The court proposed two

alternatives: defendant could testify from his position at counsel’s table or he

could testify from the witness stand with a marshal sitting next to him, facing him.

The court recalled defendant’s history, which included assaulting an attorney in

court and a deputy sheriff during this case. After a break, defense counsel

indicated that defendant wished to testify from the witness chair. The court

explained it would position a marshal in a chair next to defendant on the raised

platform that was parallel to Juror No. 7.5 The court recalled defendant’s prior

assaultive behavior, his violation of court orders, and his being removed from the

courtroom for being verbally disruptive earlier in the trial. The court noted that

the jury box was only four feet from where defendant would sit, and it would be

“total dereliction of [the court’s] responsibility” to have the nearest marshal “some

30 or 40 feet away, who would have to go around tables, chairs and other people

[to] get to [defendant].”


It appears that the marshal sat four or five feet from defendant’s side

(facing his ear) next to and slightly behind Juror No. 7.


The court read the following admonition, at the defense’s request: “With

respect to the position of Deputy Scott, you’ll observe that Deputy Scott is seated

up next to the jury box. [¶] First of all, let me indicate to you that you are not to

speculate as to the reasons why Deputy Scott is in this position, nor are you to let

it become part of your deliberations or your conclusions in this case in any way.

This is a perfectly normal procedure, and you should not draw any adverse

[inferences] from this of any kind.”



Duran for the proposition that there must be a “manifest

need” for the placement of the marshal so close to him as he testified. Duran

imposed the manifest need standard for the use of physical restraints.

(Duran, supra, 16 Cal.3d at pp. 290-291.) Duran expressly distinguished such

shackling from monitoring by security personnel. “We are not here concerned

with the use of armed guards in the courtroom. Unless they are present in

unreasonable numbers, such presence need not be justified by the court or the

prosecutor.” (Duran, at p. 291, fn. 8.) The Duran holding encompassed not only

the standard positioning of officers but also their unusual deployment, as is shown

by its citation to People v. David (1939) 12 Cal.2d 639, 644, where a deputy drew

up his chair immediately behind where the defendant was sitting. (See Duran, at

p. 291, fn. 8.) The distinction between shackling and monitoring is long-standing.

The David court distinguished that case’s deployment of security personnel with

the physical restraints that caused prejudice in People v. Harrington (1871) 42

Cal. 165. (People v. David, supra, 12 Cal.2d at p. 644.) Harrington was the

primary authority on which Duran relied, and its reasoning indicates that

courtroom monitoring by security personnel does not necessarily create the

prejudice created by shackling. “ ‘[A]ny . . . physical burdens, pains and

restraints upon a prisoner during the progress of his trial, inevitably tends to

confuse and embarrass his mental faculties, and thereby materially to abridge and


prejudicially affect his constitutional rights of defense; and especially would such

physical bonds and restraints in like manner materially impair and prejudicially

affect his statutory privilege of becoming a competent witness and testifying in his

own behalf.’ ” (Duran, supra, 16 Cal.3d at p. 288, italics added, quoting

Harrington, supra, at p. 168.) The United States Supreme Court has likewise

refused to find the “conspicuous, or at least noticeable, deployment of security

personnel in a courtroom during trial [as] the sort of inherently prejudicial practice

that, like shackling, should be permitted only where justified by an essential state

interest . . . .” (Holbrook v. Flynn (1986) 475 U.S. 560, 568-569.) Holbrook

observed, “While shackling and prison clothes are unmistakable indications of the

need to separate a defendant from the community at large, . . . it is entirely

possible that jurors will not infer anything at all from the presence of the guards

. . . . Our society has become inured to the presence of armed guards in most

public places; they are doubtless taken for granted so long as their numbers or

weaponry do not suggest particular official concern or alarm.” (Id. at p. 569.)

We therefore maintain this distinction between shackling and the

deployment of security personnel, and decline to impose the manifest need

standard for the deployment of marshals inside the courtroom. (Duran, supra, 16

Cal.3d at p. 291, fn. 8.)

Defendant now claims the trial court should have had him testify bound by

restraints not visible to the jury. Defendant never asserted there was a less

intrusive means of securing the courtroom, and his failure to object now bars the

instant claim that through invisible shackling the court could have achieved the

same security benefit with less prejudice to defendant. (See Duran, supra, 16

Cal.3d at p. 289 [failure to object to restraint waives claim].) Furthermore, as

indicated above, physical restraints may well be more distracting and disorienting


to a testifying defendant than a security guard’s presence four or five feet away,

next to (and slightly behind) the jurors.

Defendant had attacked his own counsel in the courtroom, and his

disruptive behavior and violations of court orders had led to his removal at one

point. The court observed the proximity of the witness stand to the jury box, and

reasonably concluded it would be irresponsible to leave the jury unprotected from

a capital defendant with a record of violent behavior in the courtroom. Under any

standard of review, the trial court properly exercised its discretion in securing the


2. Visual Exhibits

Defendant contends the trial court erred in admitting over his objection

both a videotape depicting Mui Luong’s daily activities and photographs of the

crime scenes and victims. He alleges a violation of his rights under the Fifth,

Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and

sections 7, 15, and 17 of article I of the California Constitution. We find no

reversible error.

a) The Videotape

The People offered into evidence a videotape depicting a typical day for

Mui Luong. The tape shows her receiving physical therapy, with accompanying

explanations from the attending medical personnel. The defense objected to the

tape as being unduly prejudicial under Evidence Code section 352. The defense

argued the tape “does not show great bodily injury. It shows the results of great

bodily injury.” Insofar as the People offered the tape to prove the great bodily

injury allegation, defendant insisted the People should be compelled to accept the

defense’s stipulation that Luong suffered the requisite injury.


The court overruled the objection. The court considered the contrast

between great bodily injury and the results of great bodily injury as “a distinction

without a difference.” The court found the videotape was “certainly not”

“inherently inflammatory.” The court noted “[t]he tape is approximately 36 to 37

minutes long, it depicts for—very nearly all [sic] what’s on the tape is a picture of

the victim, Mui Luong, either lying in bed or being transported to a wheelchair or

to a special table and then back again or having a therapist manipulate her limbs.

There is nothing about this which in any way, in my view, is inherently

inflammatory. There is no blood visible, although that is certainly not dispositive,

there is no indication of overt signs of pain or suffering on the part of the victim.”

The trial court quoted some of our analyses in explaining its decision to

allow the People to use the videotape to prove the allegation rather than accept the

defense’s offer of a stipulation. The court recalled we upheld the admission of

allegedly prejudicial videotape and photographic evidence in People v. Turner

(1990) 50 Cal.3d 668. “The prosecution was not obliged to prove these details

solely from the testimony of live witnesses, and the jury was entitled to see how

the physical details of the scene and body supported the prosecution theory of

murder . . . .” (Id. at p. 706.) Likewise, the court recalled the “strong policy

against depriving the state’s case of its persuasiveness and forcefulness by forcing

the prosecutor to accept stipulations that soften the impact of the evidence in its

entirety.” (People v. McClellan (1969) 71 Cal.2d 793, 802.)

We have upheld the admission of a photograph of a “bloodied, lifeless

body” to “establish that a murder had occurred.” (People v. Scheid (1997) 16

Cal.4th 1, 15 (Scheid).) We observed in Scheid that the existence of other

evidence establishing that fact did not compel the evidence’s exclusion. (Ibid.)

We reiterated the rule that a prosecutor is not obligated “ ‘ “to accept antiseptic

stipulations in lieu of [visual] evidence.” ’ ” (Id. at p. 16, quoting People v.


Crittenden (1994) 9 Cal.4th 83, 133; People v. Pride (1992) 3 Cal.4th 195, 243.)

The People below were similarly entitled to provide visual evidence of Luong’s

condition to prove she had suffered great bodily injury. We therefore find the trial

court correctly allowed the People to decline the stipulation offer.

Regarding the admission of the videotape itself, we find no reversible error.

As the People observe, there would have been no bar to presenting Luong as a live

witness, yet that would likely have been even more harmful to the defense, as well

as a difficult experience for Luong and her caretakers. We also agree with the trial

court’s rejection of any distinction between an injury and the result of that injury.

If the People show the defendant’s mayhem left the victim with only two fingers

on one hand, does a photograph of the hand depict the injury or only its results?

There was thus a basis for introducing some videotape evidence of Ms.

Luong’s condition. On the other hand, the videotape was approximately 37

minutes long, and much of it was arguably cumulative. Regardless of whether the

admission of the entire videotape was proper, any possible error was harmless.

We base this conclusion on not only the overall strength of the People’s case, but

also on defendant’s offered alibi defense. Unlike a defense of mistake or accident,

the videotape would not incline the jury to convict defendant unless it found he

was the perpetrator. (Cf. People v. Scott (1988) 200 Cal.App.3d 1090, 1095 [jury

will not consider flight as inculpatory unless convinced of defendant’s identity as

perpetrator].) Furthermore, the videotape “would clearly have been admissible at

the penalty phase [to show the harm defendant inflicted] even if not at the guilt

phase [citation], thus obviating any possible prejudice at that phase.” (People v.

Smith (2003) 30 Cal.4th 581, 613.)

Although defendant asserts the standard of review is the “harmless beyond

a reasonable doubt” standard prescribed in Chapman v. California (1967) 386 U.S.

18, 24, we have held the application of ordinary rules of evidence like Evidence


Code section 352 does not implicate the federal Constitution, and thus we review

allegations of error under the “reasonable probability” standard of Watson, supra,

46 Cal.2d at page 836. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1125

(Rodrigues); People v. Fudge (1994) 7 Cal.4th 1075, 1103.) Although we apply

Watson, we note that the result would be the same under Chapman.

b) The Photographs

Defendant also objects to the admission of several photographs introduced

over his objection. These photographs included depictions of the bodies of the

two murder victims, Peter Baeza and Daniel McDermott, as well as photographs

of the crime scenes, the Gourmet Market, the Taco Bell, and McDermott’s taxicab,

and those depicting the surgery performed on Mui Luong. Some of the crime

scene photographs portrayed blood splatters and other tangible signs of injury.

The court determined the photographs were illustrative of the testimony, and

therefore found them admissible.

We find the trial court properly exercised its discretion in admitting the

photographs. “ ‘ “ ‘The jury was entitled to see how the physical details of the

scene and the bod[ies] supported the prosecution theory . . . .’ ” ’ ” (Scheid, supra,

16 Cal.4th at p. 16, quoting People v. Pride, supra, 3 Cal.4th at p. 243.) As the

United States Supreme Court has explained, the “persuasive power of the concrete

and particular is often essential to the capacity of jurors to satisfy the obligations

that the law places on them.” (Old Chief v. United States (1997) 519 U.S. 172,

187.) The admitted photographs assisted the jury in understanding the specifics of

the crimes, and the People were entitled to employ such evidence to prove their



3. Impeachment

Defendant contends the trial court denied him due process of law in

violation of the Fourteenth Amendment in allowing the People to impeach him

with two prior convictions and his parole status at the time of his arrest. We find

the trial court properly exercised its discretion.

a) The Prior Convictions

Before defendant testified, the People referred to four prior convictions with

which they wished to impeach him: a 1989 conviction for grand theft person (Pen.

Code, § 487), a 1985 conviction for sale of marijuana (Health & Saf. Code, § 11360),

a 1983 conviction for battery on a peace officer (Pen. Code, § 243, subd. (c)), and a

1980 conviction for battery with serious bodily injury (Pen. Code, § 243, subd. (d)).

The defense did not challenge the use of the theft and marijuana sale convictions for

impeachment. Although he agreed the two batteries involved moral turpitude,

defendant argued they were too remote to be valid bases for impeachment. However,

the trial court concluded the battery-with-injury conviction did not involve moral

turpitude. The court permitted impeachment through all the other convictions.

Defendant invites us to reconsider Court of Appeal decisions holding that the

sale of marijuana and the battery on a peace officer were offenses involving moral

turpitude. (See, e.g., People v. Lindsay (1989) 209 Cal.App.3d 849; People v.

Standard (1986) 181 Cal.App.3d 431.) Moreover, “ ‘[b]ecause defendant’s crimes

occurred prior to the adoption of Proposition 8 in June 1982 . . . the governing law

[for determining the admissibility of a prior conviction for impeachment] was People

v. Beagle (1972) 6 Cal.3d 441, not People v. Castro (1985) 38 Cal.3d 301.’ ” (People

v. Carpenter (1999) 21 Cal.4th 1016, 1056.) According to defendant’s interpretation,

Beagle applies so long as the prior crimes (used for impeachment) occurred prior to

June 8, 1982, regardless of when the charged offenses occurred. (But see People v.

Gurule (2002) 28 Cal.4th 557, 607.)


We decline to review these claims because defendant forfeited these

arguments by failing to raise them at trial.6 We have held an “ ‘objection must be

made in such a way as to alert the trial court to the nature of the anticipated

evidence and the basis on which exclusion is sought, and to afford the People an

opportunity to establish its admissibility.’ ” (People v. Holt (1997) 15 Cal.4th

619, 666-667, quoting People v. Williams (1988) 44 Cal.3d 883, 906.) A general

objection to the admission or exclusion of evidence, or one based on a different

ground from that advanced at trial, does not preserve the claim for appeal. For

example, in People v. Hill (1992) 3 Cal.4th 959 (disapproved on another ground in

Price, supra, 25 Cal.4th 1046, 1069, fn. 13), the People objected to the admission

of a hearsay statement, and the defense responded that the evidence was not

hearsay because it was in the form of a question. We held the defense could not

appeal the exclusion of the evidence on the ground that the statement was not

hearsay because it explained the defendant’s state of mind, as the defense had not

presented that ground to the court and the People at trial. (Hill, at pp. 988-989.)

Similarly, in People v. Visciotti (1992) 2 Cal.4th 1, the defense objected to only

two specific inquiries during cross-examination, and based those objections on

relevancy and assuming facts not in evidence. We therefore ruled the defendant

had failed to preserve his appellate claims that the prosecutor’s questions

amounted to improper testimony and that the cross-examination exceeded the

scope of direct examination. (Id. at pp. 51-52.) Accordingly, we find defendant

has failed to preserve his challenges to the admissibility of the marijuana or

battery convictions based on the alleged lack of moral turpitude involved or the


Furthermore, only defendant’s battery on a peace officer preceded June 8,

1982 (although his conviction occurred in 1983), and thus defendant’s proposed
rule would not apply to the theft and sale of marijuana convictions.


standards for determining the admissibility of prior convictions for impeachment

purposes. Furthermore, considering the strength of the case against defendant, as

well as the magnitude of these offenses and the relatively minor nature of the prior

convictions, we perceive no reasonable probability of a different result if the

People had not impeached defendant.

b) Defendant’s Parole Status

In his opening statement defendant explained his possession of the gun by

asserting that he was transporting the weapon in exchange for payment. The

prosecutor thus wished to cast doubt upon that explanation by informing the jury

that defendant’s status as a parolee meant that his mere possession of the weapon

could prompt his return to prison. As the trial court observed, the relevance of the

parole status was not its tendency to undermine the credibility of the witness but

the credibility of the testimony.

An analogous use of evidence might occur if a defendant were charged with

theft and his defense at trial was that he had purchased the liquor found in his

possession. The People might wish to introduce defendant’s driver’s license that

revealed he was 16 years old, not because there is anything intrinsically culpable

about being 16 years old but because it would tend to undermine his claim that he

purchased the liquor. Similarly, the evidence of defendant’s parole status was

relevant as to the likelihood that defendant would transport someone else’s gun

and thereby risk returning to prison. Defendant’s own testimony confirmed the

probative nature of his parole status. “When [the police] came up to me, all I

thought was ex-felon with a gun, five years.” Furthermore, there was minimal

prejudice attached to the evidence, in light of the nature of the charged crimes and

the prior felony convictions properly admitted. We therefore conclude the trial

court properly allowed the prosecution to elicit defendant’s parole status.


Finally, in light of the overwhelming strength of the People’s case, any

possible error regarding the admission of either the prior convictions or

defendant’s parole status was surely harmless.

4. Sufficiency of Evidence Supporting the First Degree Murder of
Daniel McDermott

Defendant contends insufficient evidence supports his conviction for the

first degree murder of Daniel McDermott. We conclude sufficient evidence

supports the conviction, on either a premeditation or a felony-murder basis.

(§ 189.)

In determining the sufficiency of the evidence proving premeditation and

deliberation, we review the entire record in the light most favorable to the People

to determine whether it contains evidence that is reasonable, credible, and of solid

value, from which a rational trier of fact could find the defendant guilty beyond a

reasonable doubt. (People v. Silva (2001) 25 Cal.4th 345, 368 (Silva).) Evidence

concerning planning, motive, and manner of killing are pertinent to this

determination, but these factors are not exclusive nor are they invariably

determinative. (Ibid.)

The shooting of Daniel McDermott manifested all three factors. Defendant

ordered Robin Menefee out of the taxi, which supports the inference that he did so

to remove her from the scene before he killed. Moreover, if he brought a gun

rather than money with which to pay for the taxi ride, it supports the inference that

he planned a violent encounter with McDermott. (People v. Adcox (1988) 47

Cal.3d 207, 240; People v. Miranda (1987) 44 Cal.3d 57, 87 (Miranda).)

Defendant was found with seven $1 bills, whereas McDermott was found with no

bills (nor was any money found in the car), which tends to show a robbery motive.

Finally, the manner of the killing, a close-range shooting, without any provocation

(defendant discussed the baseball game with McDermott before shooting him) or


evidence of struggle likewise demonstrates premeditation and deliberation.

(People v. Hawkins (1995) 10 Cal.4th 920, 956; People v. Bloyd (1987) 43 Cal.3d

333, 348.) Substantial evidence supports the jury’s finding that the murder of

Daniel McDermott was premeditated.

There was also circumstantial evidence supporting the finding that

defendant murdered McDermott in the commission of a robbery or attempted

robbery. Defendant was found with seven $1 bills and change. The People

presented evidence that it was McDermott’s habit to bring several $1 bills to work,

with which he could make change. Defendant was found with seven $1 bills; no

paper money was found on McDermott’s person or in his car. Moreover, although

defendant and Menefee had no money when they entered the taxi, they were able

to buy groceries later that evening. The People also showed that prior to picking

up defendant on 13th Street and Broadway, McDermott was dispatched to

Berkeley, and he did not inform the dispatcher that the passenger had failed to

show up, which he would have done had the fare been a no-show.




evidence that he took property from McDermott is

speculative as “[n]o witness saw any money being taken from Mr. McDermott.”

However, circumstantial evidence may support a first degree robbery-murder

finding, or a robbery-murder special circumstance. (People v. Lewis (2001) 26

Cal.4th 334, 367.) In Lewis, we affirmed a robbery-based special circumstance

finding. “Defendant admitted he had seen Simms keep money in her bra.

Physical evidence also showed that the top of Simms’s blouse was ripped open,

revealing her brassiere containing a folded $20 bill, and that buttons that had come

from Simms’s blouse lay near her body. There was evidence that Simms had

recently cashed a paycheck and that she normally set aside money for rent from

the paycheck and used the rest to purchase crack. Based on these facts, a

reasonable trier of fact could conclude that defendant robbed Simms.” (Ibid.)


We also approved the admission of habit evidence in People v. McPeters

(1992) 2 Cal.4th 1148, where the defendant was found in possession of an

envelope containing over $200 in cash, and evidence established it was the

victim’s habit to store money in envelopes to earmark it for special purchases. (Id.

at pp. 1178-1180.) As in the instant case, no witness observed the defendant take

money from the victim. But we nonetheless held “the jury could infer that

defendant had the opportunity to steal (he leaned into the victim’s car), did steal

(he was found in possession of an envelope with money), and killed his victim to

accomplish his crime.” (Id. at p. 1183.) The same analysis obtains here.

Finally, even if defendant had been found without any money on his

person, the jury could rationally have concluded he shot Mr. McDermott in an

attempt to obtain money. (See Silva, supra, 25 Cal.4th at pp. 368-370.) We

therefore reject defendant’s evidentiary challenge to his conviction for the first

degree murder of Daniel McDermott.

5. Sufficiency of Evidence on the Other Counts and the Multiple-
Murder Special Circumstance

Defendant challenges the validity of his other convictions. He contends

there was insufficient evidence of premeditation and deliberation regarding the

other three counts. Defendant also asserts the jury improperly relied on a felony-

murder theory in convicting him of the first degree murder of Peter Baeza.

Additionally, he contends the absence of a proper first degree murder conviction

invalidates the multiple-murder special circumstance finding. We reject all these


a) Premeditation and Deliberation

The shootings of Mui Luong, Peter Baeza, and John Myers involved a

similar factual predicate: defendant brought a gun to a place of business, shot

workers at close range without any provocation, and maintained a calm, cool


manner. Our decision in Miranda, supra, 44 Cal.3d 57, is thus dispositive. In

Miranda, we observed that the defendant’s bringing a loaded gun into a store and

using it shortly thereafter to kill an unarmed victim reasonably suggested the

defendant considered the possibility of murder in advance. The evidence of

planning is even greater with regard to the shootings of Baeza and Myers, as

defendant walked approximately 800 feet to the Gourmet Market after the Taco

Bell shootings, suggesting the subject of murder was on his mind before he shot

his next victims. Our Miranda decision also concluded the unprovoked shooting

of victims standing unarmed behind a counter a few feet away supported the

inference that the killing was the product of a deliberate plan rather than a rash

explosion of violence. (Id. at p. 87.) The “calm,” “cool,” and “focused” manner

of a shooting also supports the finding of premeditation and deliberation. (People

v. Vorise (1999) 72 Cal.App.4th 312, 319.) Furthermore, defendant shot Baeza

after Baeza had reached for a telephone to call 911. Defendant thus had a motive

to avoid apprehension and identification in shooting him.

We therefore conclude the evidence of premeditation and deliberation was

sufficient for the counts involving Peter Baeza, John Myers, and Mui Luong.

b) The Baeza Verdict

The trial court instructed the jury that “[t]he unlawful killing of a human

being . . . which occurs during the commission or attempted commission of the

crime of robbery is murder in the first degree when the perpetrator had the specific

intent to commit such crime.” Although this instruction did not specify either

victim, the instruction on the robbery-murder special circumstance7 limited its


“The murder was committed while the defendant was engaged in the

commission or attempted commission of the robbery of Daniel McDermott.”


applicability to McDermott’s murder. Defendant now contends the jury might

have erroneously based its finding of first degree murder for the killing of Baeza

on an invalid felony-murder theory. The instruction was correct, as it applied to

the McDermott robbery-murder, and if defendant perceived that the instruction

might confuse jurors, it was defendant’s obligation to seek clarification. (People

v. Arias (1996) 13 Cal.4th 92, 170-171 (Arias); Rodrigues, supra, 8 Cal.4th at p.


Furthermore, even if we assume that the jury considered the felony-murder

theory and insufficient evidence supported it, defendant’s first degree murder

conviction remains valid. Where the jury considers both a factually sufficient and

a factually insufficient ground for conviction, and it cannot be determined on

which ground the jury relied, we affirm the conviction unless there is an

affirmative indication that the jury relied on the invalid ground. (Silva, supra, 25

Cal.4th at pp. 370-371; People v. Guiton (1993) 4 Cal.4th 1116, 1128-1129.)

Thus, in a recent case where we observed there was sufficient evidence that the

defendant premeditated and deliberated the murder, we held that if there was

insufficient evidence of felony murder, we could assume the jury relied on the

factually sufficient ground of premeditation. (Silva, at pp. 370-371.) Because

there was sufficient evidence showing Baeza’s murder was premeditated and

deliberate, there is no basis for reversal. (Ibid.)

c) The Multiple-Murder Special Circumstance

The jury thus validly convicted defendant of first degree murder regarding

the murders of both Daniel McDermott and Peter Baeza. Accordingly, the

multiple-murder special circumstance finding was valid.


C. Penalty Phase

1. The Transportation-Worker Special Circumstance

Defendant contends the penalty phase verdict is invalid because one of the

special circumstances found by the jury, the murder of a transportation worker,

does not support a sentence of death, only life imprisonment without parole.

(§ 190.25.) He contends this error violated the heightened reliability requirement

imposed in capital prosecutions by the Eighth and Fourteenth Amendments to the

United States Constitution.

To render a defendant eligible for the death penalty, the jury must find true

at least one of the special circumstances listed in section 190.2. Once it does so,

the jury must then decide in a penalty phase whether the defendant should be

sentenced to death or to life imprisonment without possibility of parole. The jury

weighs the factors listed in section 190.3 in making this determination.

The jury below found three special circumstances: (1) the defendant

committed multiple murders (§ 190.2, subd. (a)(3)); (2) the murder was committed

during a robbery (§ 190.2, subd. (a)(17)(A)); and (3) the victim was a

transportation worker (§ 190.25). Although the transportation-worker special

circumstance is not a special circumstance that supports a death sentence, thereby

leading to a penalty phase, the two section 190.2 special circumstances properly

rendered the defendant death-eligible, subject to the penalty phase, where the jury

would apply the section 190.3 factors. (People v. Hamilton (1988) 45 Cal.3d 351,

364, fn. 7.)

Defendant claims, however, “It does not make any difference whether the

other special circumstances were proved because we have no way of telling for

sure whether it was special circumstance [No.] 1, or 2, or 3, or some combination

. . . which caused the jury to return the death verdict.” But once the jury has found

a section 190.2 special circumstance, the determination of whether to sentence the


defendant to death or life imprisonment without the possibility of parole depends

on the section 190.3 factors. Among these factors is factor (a): “The

circumstances of the crime of which the defendant was convicted in the instant

proceeding and the existence of any special circumstances found to be true

pursuant to Section 190.1.” Accordingly, there was nothing improper about the

prosecutor’s emphasizing that defendant murdered McDermott while he was doing

his job as a taxicab driver, as this was a circumstance of the charged crime.

Section 190.25, subdivision (c) specifically provides “Nothing in this

section shall be construed to prohibit the charging of any [other] special

circumstance.” “While the statute does not authorize the death penalty, it does not

prohibit that penalty if other special circumstances are proved.” (3 Witkin &

Epstein, Cal. Criminal Law (3d ed. 2000) Punishment, § 459, p. 612.) If we were

to accept defendant’s argument, it would turn the circumstance of killing a taxi

driver on duty, a fact the Legislature has deemed worthy of special sanction (albeit

less than some other special circumstances), into a shield from liability. If the

Legislature had never enacted section 190.25, the prosecutor still would have been

free to argue that the circumstances of the killing, which included the killing of a

taxi driver doing his job, supported a death verdict. (§ 190.3, factor (a).) There

would be no basis for reversal, as both the multiple-murder and robbery-murder

special circumstance findings were valid. By contrast, according to defendant,

because the Legislature decided the killing of a taxi driver supported a sentence of

life imprisonment without parole, we must now reverse. We decline to infer such

an exculpatory effect from the Legislature’s decision to increase the penalty for

murdering transportation workers in cases where there are no other special



2. Defendant’s Prior Conviction of Battery on a Peace Officer

Defendant asserts a violation of his rights under the Fifth, Sixth, Eighth, and

Fourteenth Amendments, and the California Constitution, because the trial court

instructed the jury that evidence had been introduced to show defendant had four prior

convictions (which the jury had previously determined), including battery on a police

officer. (§ 243, subd. (c).) The jury was further instructed that before it could

consider any alleged crime as an aggravating circumstance, it must be satisfied

beyond a reasonable doubt that defendant was in fact convicted of the prior crime.

Defendant now claims this instruction was error, because there was insufficient

evidence the police officer suffered injury within the meaning of section 243,

subdivision (c). A defendant may collaterally attack a prior conviction, but must

overcome a strong presumption of constitutional validity. (People v. Cunningham

(2001) 25 Cal.4th 926, 1013.) Defendant has never established the invalidity of his

prior conviction, and therefore the instruction was proper.

3. The Victim Impact Testimony of Thomas Carter

Defendant contends the trial court violated his Eighth and Fourteenth

Amendment rights by allowing Thomas Carter to testify about the impact of Peter

Baeza’s death. We conclude the trial court properly admitted the testimony.

Carter testified that because he suffered from a seizure disorder, nobody

would give him a job—except Baeza, who treated him like a son. Baeza helped

Carter in getting financial assistance for his disability. Baeza treated Carter like a

human being, whereas others did not. Prior to Baeza’s death, Carter’s seizures had

improved and were almost gone. Since Baeza’s death, Carter lost his job and was

unable to find any other work. His physical condition deteriorated, and his fiancée

left him. Baeza extended credit to many elderly people.

Defendant contends the evidence should have been excluded because Carter

was not a relative of Baeza’s. The United States Supreme Court has not restricted


the admissibility of victim impact evidence to relatives, however. The court has

recognized the People are entitled to show “the victim is an individual whose

death represents a unique loss to society and in particular to his family.” (Payne v.

Tennessee (1991) 501 U.S. 808, 825.) Furthermore, the separate opinions in

Payne recognized the broad scope of victim impact evidence. The jury may know

“the full extent of the harm caused by the crime, including its impact on the

victim’s family and community.” (Payne v. Tennessee, supra, 501 U.S. 808, 830

(conc. opn. of O’Connor, J.), italics added.) Murderers know their victims

“probably ha[ve] close associates, ‘survivors,’ who will suffer harms and

deprivations from the victim’s death . . . . [T]hey know that their victims are not

human islands, but individuals with parents or children, spouses or friends or

dependents.” (Payne v. Tennessee, supra, 501 U.S. 808, 838 (conc. opn. of

Souter, J.), italics added.) We therefore have drawn from Payne that it is proper to

refer “to the status of the victim and the effect of his loss on friends, loved ones,

and the community as a whole.” (People v. Fierro (1991) 1 Cal.4th 173, 236.)

Defendant’s argument thus must rest on a purported distinction between the

admissibility of evidence describing the murder’s impact on nonrelatives, which

we have permitted, and testimony by nonrelatives, to which defendant now

objects. This distinction is unsound, however, and would prove unworkable in

cases where the only available witnesses were not formally related to the victim.

We therefore hold the trial court properly admitted the testimony of Thomas


4. The Trial Court’s Rereading of CALJIC No. 8.88

During the penalty phase deliberations, the jury passed a note to the court

stating, “We, the jury in the above entitled cause request the following: ‘If a

juror(s) comes to the conclusion that the aggravating circumstances far outweigh


the mitigating circumstances must the juror(s) then automatically choose the death

penalty?’ ” The court answered by reading an excerpt from CALJIC No. 8.88.8

Defendant asserts this reading violated his rights under the Fifth, Sixth, Eighth,

and Fourteenth Amendments of the United States Constitution, and sections 7, 15,

and 17 of article I of the California Constitution. Defendant contends the trial

court “failed to correctly answer” the jury and should have instead given a shorter

answer: “No.” The instruction is a correct statement of law, however, and if

defendant favored further clarification, he needed to request it. His failure to do so

waives this claim. (Arias, supra, 13 Cal.4th at pp. 170-171; Rodrigues, supra, 8

Cal.4th at p. 1192.)


CALJIC No. 8.88 reads: “After having heard all of the evidence and after

having heard and considered the arguments of counsel, you shall consider, take
into account and be guided by the applicable factors, aggravating and mitigating
circumstances upon which you have been instructed. [¶] An aggravating factor is
any fact, condition or event attending the commission of a crime which increases
its guilt or enormity or adds to its injurious consequences which is above and
beyond an element of the crime itself. [¶] A mitigating circumstance is any fact,
condition, or event which as such does not constitute a justification or excuse for
the crime in question, but may be considered as an extenuating circumstance in
determining the appropriateness of the death penalty. [¶] The weighing of
aggravating and mitigating circumstances does not mean a mere mechanical
counting of factors on each side of an imaginary scale or the arbitrary assignment
of weight to any of them. You are free to assign[] whatever moral or sympathetic
value you deem appropriate to each and all of the various factors you are permitted
to consider. In weighing the various circumstances you determine under the
relevant evidence which penalty is justified and appropriate by considering the
totality of the aggravating circumstances with the totality of the mitigating
circumstances. To return a judgment of death each of you must be persuaded that
the aggravating circumstances are so substantial in comparison with the mitigating
circumstances that it warrants death instead of life without parole.”


5. Constitutional Challenges

Defendant finally raises numerous challenges to the constitutionality of

California’s capital procedures. We have rejected these claims and do so again.

Accordingly, we reiterate the following holdings: California’s death penalty law

sufficiently narrows the class of death-eligible defendants. (People v. Lewis

(2001) 25 Cal.4th 610, 676; People v. Anderson (2001) 25 Cal.4th 543, 601.) The

law does not impose overly broad death-eligibility for felony murder. (Lewis, at p.

676; Anderson, at p. 601.) The discretion exercised by California prosecutors is

proper. (Lewis, at p. 676; Anderson, at p. 601; People v. Ochoa (2001) 26 Cal.4th

398, 462.) A trial court need not instruct the jury that they must find beyond a

reasonable doubt the following: (1) the existence of aggravating circumstances

except other crimes evidence; (2) that aggravation outweighs mitigation; and (3)

that death is the appropriate penalty (Anderson, at p. 601). The federal

Constitution does not require intercase proportionality review (Pulley v. Harris

(1984) 465 U.S. 37, 50-51), and we perform intracase proportionality review “to

determine whether the penalty is disproportionate to defendant’s personal

culpability.” (People v. Steele (2002) 27 Cal.4th 1230, 1269.) Section 190.3,

factor (a) is not impermissibly vague. (Tuilaepa v. California (1994) 512 U.S.

967, 975-980; Anderson, at p. 601.) It also does not require written findings of

aggravating factors (Tuilaepa, at pp. 975-980; Anderson, at p. 601), bar the

consideration of unadjudicated criminal activity (Tuilaepa, at pp. 976-977;

Anderson, at p. 601; People v. Cain (1995) 10 Cal.4th 1, 69), or require instruction

as to which factors are aggravating and which are mitigating (Anderson, at p. 601;

People v. Box (2000) 23 Cal.4th 1153, 1217). The passing of time between

conviction and execution does not violate the federal Constitution (Ochoa, at pp.

462-464), and lethal injection is a constitutional means of execution (Ochoa, at p.




For the reasons stated herein, the judgment is affirmed.

















I concur fully in the majority opinion, including its conclusion that

defendant’s arguments regarding impeachment with some of his prior convictions

are not cognizable. (Maj. opn., ante, at pp. 36-38.) I write separately only to note

that the arguments also lack merit.

The California electorate passed Proposition 8 in June 1982. A short time

later, we held that it “applies only to prosecutions for crimes committed on or after

its effective date.” (People v. Smith (1983) 34 Cal.3d 251, 258.) Accordingly,

when the charged crime predated Proposition 8, trial courts had to apply the law

that existed before its adoption, including the law relating to impeachment with a

prior conviction. (See, e.g., People v. Carpenter (1999) 21 Cal.4th 1016, 1056.)

Defendant, however, committed the charged crimes in 1990. Thus, this

prosecution is for crimes committed long after Proposition 8’s effective date. The

date of the charged crime matters, not the date of the prior conviction or its

underlying crime. (People v. Gurule (2002) 28 Cal.4th 557, 607.) Accordingly,

and contrary to defendant’s assertion, Proposition 8 applies to this trial. (E.g.,

People v. Sandoval (1992) 4 Cal.4th 155, 177-178, 186 [applying post-Proposition

8 law to impeachment with a 1979 conviction where the charged crimes occurred

in 1984]; see also People v. Jackson (1985) 37 Cal.3d 826, 833 [Proposition 8’s

five-year enhancement for serious felony convictions applies when the prior

conviction predates, but the charged crime postdates, Proposition 8].)


It has also long been settled that defendant’s prior convictions involve

moral turpitude. (People v. Lindsay (1989) 209 Cal.App.3d 849, 854-858 [battery

on a peace officer]; People v. Clarida (1987) 197 Cal.App.3d 547, 552 [same];

People v. Standard (1986) 181 Cal.App.3d 431, 435 [possession of marijuana for

sale, noting that possession for sale, unlike simple possession, involves the intent

to corrupt others].)

The court’s choice not to discuss the merits of these forfeited arguments

should not be read as casting doubt on any of this settled law.




See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Marks

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted
Rehearing Granted


Opinion No.
Date Filed: July 24, 2003

County: Alameda
Judge: Jeffrey W. Horner and Michael E. Ballachey


Attorneys for Appellant:

Richard Power, under appointment by the Supreme Court, for Defendant and Appellant.


Attorneys for Respondent:

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Ronald A. Bass
and Dane R. Gillette, Assistant Attorneys General, and Sharon R. Wooden, Deputy Attorney General, for
Plaintiff and Respondent.


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

Richard Power
P.O. Box 476
Shingle Springs, CA 95682-0476
(530) 677-6344

Sharon R. Wooden
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5966


Opinion Information
Date:Docket Number:
Thu, 07/24/2003S040575

1The People (Respondent)
Represented by Attorney General - San Francisco Office
Sharon Wooden, Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA

2Marks, Delaney Geral (Appellant)
San Quentin State Prison
Represented by Habeas Corpus Resource Center
Gary Sowards, Staff Attorney
50 Fremont Street, Suite 1800
San Francisco, CA

3Marks, Delaney Geral (Appellant)
San Quentin State Prison
Represented by Richard C. Power
Attorney at Law
P. O. Box 476
Shingle Springs, CA

Jul 24 2003Opinion: Affirmed

Jun 3 1994Judgment of death
Jun 22 1994Filed certified copy of Judgment of Death Rendered
Sep 22 1998Counsel appointment order filed
  Richard Power Is appointed to represent Applt for the direct Appeal.
Nov 2 1998Application for Extension of Time filed
  By Applt to request correction of the Record.
Nov 3 1998Extension of Time application Granted
  To Applt To 12-28-98 To request Corr. of Record.
Nov 23 1998Compensation awarded counsel
Dec 14 1998Compensation awarded counsel
Dec 28 1998Application for Extension of Time filed
  By Applt to request Record correction
Jan 4 1999Extension of Time application Granted
  To 2-26-99 To request Record correction
Feb 25 1999Application for Extension of Time filed
  By Applt to request correction of the Record.
Mar 1 1999Filed:
  Suppl Proof of Service of request for Eot.
Mar 3 1999Extension of Time application Granted
  To 4-27-99 To request Record correction
Mar 18 1999Order filed appointing H.C. Resource Center
  The Habeas Corpus Resource Center is appointed to represent applt for habeas corpus/executive clemency proceedings related to the automatic appeal.
Apr 28 1999Application for Extension of Time filed
  By Applt to request correction of the Record.
Apr 29 1999Extension of Time application Granted
  To 5-27-99 To request Record correction
Jun 2 1999Application for Extension of Time filed
  By Applt to request correction of the Record.
Jun 3 1999Extension of Time application Granted
  To 6-16-99 To request Record correction
Jun 11 1999Received:
  Copy of Applt's request for correction, Augmentation; Viewing & Distribution of Sealed Record; Preparation of Settled Statement (12 Pp.)
Jun 16 1999Compensation awarded counsel
Jan 14 2000Record on appeal filed
  C-36 (9,838 Pps.) and R-82 (8,598 Pps.); Clerk's Transcript includes 7,175 pages of Juror Questionnaires.
Jan 21 2000Appellant's opening brief letter sent, due:
Jan 24 2000Compensation awarded counsel
  Atty Power
Feb 23 2000Application for Extension of Time filed
  To file Aob.
Mar 2 2000Extension of Time application Granted
  To 3/24/2000 To file Aob.
Mar 29 2000Application for Extension of Time filed
  To file Aob.
Mar 30 2000Extension of Time application Granted
  To 4/24/2000 To file Aob.
Apr 20 2000Application for Extension of Time filed
  To file Aob.
Apr 24 2000Extension of Time application Granted
  To 5/24/2000 To file Aob.
May 15 2000Application for Extension of Time filed
  To file Aob.
May 17 2000Filed:
  Supplement to Applic for Eot to file Aob.
May 18 2000Extension of Time application Granted
  To 6/23/2000 To file Aob.
Jun 22 2000Application for Extension of Time filed
  To file Aob.
Jun 26 2000Extension of Time application Granted
  To 7/24/2000 To file Aob.
Jul 10 2000Counsel's status report received (confidential)
  from HCRC.
Jul 19 2000Counsel's status report received (confidential)
  from atty Richard Power.
Jul 25 2000Application for Extension of Time filed
  To file AOB. (6th request)
Aug 7 2000Filed:
  supplemental declaration of Richard Power (in support of request for ext. of time.)
Aug 8 2000Extension of Time application Granted
  To 8/23/2000 to file AOB.
Aug 24 2000Application for Extension of Time filed
  To file AOB. (7th request)
Aug 25 2000Extension of Time application Granted
  To 9/22/2000 to file AOB.
Sep 8 2000Counsel's status report received (confidential)
  from HCRC.
Sep 13 2000Counsel's status report received (confidential)
  from atty Power.
Sep 22 2000Application for Extension of Time filed
  To file AOB. (8th request)
Sep 28 2000Extension of Time application Granted
  To 10/23/2000 to file AOB.
Oct 20 2000Application for Extension of Time filed
  To file AOB. (9th request)
Oct 27 2000Extension of Time application Granted
  To 11/22/2000 to file AOB. No further ext. of time are contemplated.
Nov 7 2000Counsel's status report received (confidential)
  from HCRC.
Nov 15 2000Counsel's status report received (confidential)
  from atty Power.
Nov 17 2000Application for Extension of Time filed
  To file AOB. (10th request)
Dec 12 2000Extension of Time application Granted
  To 12/22/2000 to file AOB. No further ext. of time are contemplated.
Dec 26 2000Application to file over-length brief filed
  To file AOB. (340 page AOB submitted under separate cover)
Jan 3 2001Order filed:
  Applt's application for leave to file AOB in excess of 240 pages is granted.
Jan 3 2001Appellant's opening brief filed
  (2 volumes; 340 pages)
Jan 5 2001Compensation awarded counsel
  Atty Power
Jan 8 2001Counsel's status report received (confidential)
  from HCRC.
Jan 10 2001Counsel's status report received (confidential)
Jan 31 2001Application for Extension of Time filed
  To file resp's brief. (1st request)
Feb 5 2001Extension of Time application Granted
  To 4/3/2001 to file resp's brief.
Mar 8 2001Counsel's status report received (confidential)
  from HCRC.
Mar 13 2001Counsel's status report received (confidential)
  from atty Power.
Apr 2 2001Application for Extension of Time filed
  To file Respondent's Brief. (2nd request)
Apr 6 2001Extension of Time application Granted
  To 6/4/2001 to file Resp. Brief.
May 2 2001Counsel's status report received (confidential)
  from HCRC.
May 10 2001Counsel's status report received (confidential)
  from atty Power.
May 30 2001Application for Extension of Time filed
  To file respondent's brief. (3rd request)
Jun 4 2001Extension of Time application Granted
  To 8/3/2001 to file respondent's brief.
Jun 7 2001Supplemental record/transcript filed
  Augmented Clerk's Transcript (14 pp.)
Jul 6 2001Counsel's status report received (confidential)
  from HCRC.
Aug 3 2001Application for Extension of Time filed
  To file resp.'s brief. (4th request)
Aug 16 2001Extension of Time application Granted
  To 10/2/2001 to file resp.'s brief.
Aug 31 2001Counsel's status report received (confidential)
  from HCRC.
Oct 3 2001Application for relief from default filed
  (155 pp. respondent's brief submitted under separate cover)
Oct 10 2001Filed:
  Resp.'s application for relief from default to file resp.'s brief is granted.
Oct 10 2001Respondent's Brief filed. (155 pp.)
Oct 12 2001Filed:
  Amended declaration of service of the resp.'s brief.
Oct 29 2001Application for Extension of Time filed
  To file reply brief. (1st request)
Nov 1 2001Extension of Time application Granted
  To 11/29/2001 to file reply brief.
Nov 5 2001Counsel's status report received (confidential)
  from HCRC.
Nov 26 2001Request for extension of time filed
  To file reply brief. (2nd request)
Nov 30 2001Extension of time granted
  To 12/31/2001 to file reply brief.
Dec 10 2001Counsel's status report received (confidential)
  from HCRC.
Dec 27 2001Request for extension of time filed
  To file reply brief. (3rd request)
Jan 3 2002Filed:
  Amended declaration in support of application for extention of time to file reply brief.
Jan 7 2002Counsel's status report received (confidential)
  from HCRC.
Jan 15 2002Extension of time granted
  To 1/30/2002 to file reply brief. Counsel anticipates filing the brief by 1/30/2002. After that date, no further extension is contemplated.
Jan 28 2002Request for extension of time filed
  To file reply brief. (4th request)
Jan 31 2002Extension of time granted
  To 3/1/2002 to file reply brief. Counsel anticipates filing the brief by 3/1/2002. After that date, no further extension is contemplated.
Feb 25 2002Request for extension of time filed
  To file reply brief. (5th request)
Mar 1 2002Extension of time granted
  To 5/1/2002 to file reply brief. Counsel anticipates filing the brief by 5/1/2002. No further extensions will be granted.
Mar 6 2002Counsel's status report received (confidential)
  from HCRC.
Apr 22 2002Appellant's reply brief filed
  (105 pp.)
Apr 29 2002Compensation awarded counsel
  Atty Power
May 2 2002Counsel's status report received (confidential)
  from HCRC.
Jul 1 2002Counsel's status report received (confidential)
  from HCRC.
Jul 3 2002Motion filed
  by HCRC for clarification of date by which petn in habeas corpus proceedings will be deemed filed without substantial delay.
Jul 9 2002Filed:
  Notice of service of applt. w/motion for clarification of date by whcih petn for writ of habeas corpus will be deemed filed without substantial delay.
Sep 3 2002Counsel's status report received (confidential)
  from HCRC.
Oct 29 2002Related habeas corpus petition filed (concurrent)
  (No. S110988)
Jan 22 2003Motion denied
  The motion for clarification filed by the Habeas Corpus Resource Center on July 3, 2002, is denied as moot.
Feb 5 2003Exhibits lodged
  People's 12A-12R, 16, 32A-32D, 35A-35D and 40A-40O.
Feb 21 2003Oral argument letter sent
  to counsel advising case could be scheduled for oral argument as early as April calendar. Any request for additional time to argue, notification of requirement for two counsel, or advisement of "focus issues" due no later than 10 days after the case has been set for oral argument.
Apr 9 2003Case ordered on calendar
  5-6-03, 1:30pm, S.F.
Apr 18 2003Filed letter from:
  Respondent's counsel, dated 4/18/2003, re focus issues for oral argument.
Apr 22 2003Filed letter from:
  Appellant's counsel, dated 4/22/2003, re focus issues for oral argument.
May 6 2003Cause argued and submitted
May 14 2003Compensation awarded counsel
  Atty Power
Jul 24 2003Opinion filed: Judgment affirmed in full
  Majority Opinion by Brown, J. ----- Joined by George, CJ., Kennard, Baxter, Werdegar, Chin and Moreno, JJ. Concurring Opinion by Chin, J.
Aug 8 2003Rehearing petition filed
  by appellant. (13 pp.)
Aug 12 2003Time extended to consider modification or rehearing
  to 10/22/2003, or the date upon which rehearing is either granted or denied, whichever occurs first.
Oct 1 2003Rehearing denied
Oct 1 2003Remittitur issued (AA)
Oct 2 2003Exhibit(s) returned
  to superior court.
Oct 3 2003Received:
  Acknowledgment of receipt of remittitur.
Oct 6 2003Received:
  Acknowledgment of receipt of exhibits.
Dec 17 2003Order filed (150 day statement)
Dec 29 2003Received:
  Copy of appellant's cert petition. (24 pp. - excluding attached appendices)
Mar 8 2004Received:
  Letter from U.S.S.C., dated 3/3/2004, advising cert petition filed 3/3/2004 as No. 03-9205.
May 6 2004Certiorari denied by U.S. Supreme Court

Jan 3 2001Appellant's opening brief filed
Oct 10 2001Respondent's Brief filed. (155 pp.)
Apr 22 2002Appellant's reply brief filed
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