Stanford Law School - Robert Crown Law Library

Filed 8/13/09



IN THE SUPREME COURT OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

S064574

v.

MICHAEL MATTHEW MARTINEZ,

Alameda County

Defendant and Appellant.

Super. Ct. No. H15696



Defendant Michael Matthew Martinez appeals from the judgment of death

imposed by the Alameda County Superior Court following his conviction of the

first degree murder of Lisa White (Pen. Code, § 187)1 and the premeditated,

attempted murder of Tara R. (§§ 187, 664, subds. (a), (f).) In connection with the

murder charge, the jury found true the allegation that defendant personally used

deadly weapons, specifically a hammer and a knife. (§ 12022, subd. (b)(1).) In

connection with the attempted murder charge, the jury found true the allegation

that defendant inflicted great bodily injury. (§ 12022.7.) The jury found true a

special circumstance allegation that the murder occurred while defendant was

engaged in the commission, or attempted commission of, or flight after the

performance of a lewd act upon a child under the age of 14 years, in violation of

section 288. (§ 190.2, subd. (a)(17)(E).) After the penalty phase of the trial, the


1

Statutory references are to the Penal Code unless otherwise indicated.

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jury returned a verdict of death and the trial court imposed a sentence of death,

also imposing a sentence of life imprisonment for the attempted murder, two one-

year terms of imprisonment for the weapons enhancements, and a three-year term

for the great-bodily-injury enhancement. Defendant‟s appeal is automatic.

(§ 1239, subd. (b).)

We affirm the judgment in its entirety for the reasons set forth below.

I.

FACTS

A. Guilt Phase Evidence

1. Prosecution evidence

The murder victim, Lisa White, resided in Hayward with her daughter

Amanda O., then two years of age. White‟s other daughter, Tara R., was 10 years

of age at the time of the charged offenses. According to Tara‟s grandmother,

Tara, after having been sexually abused by Amanda‟s father, was removed from

her mother‟s home by the local child protective services agency and was placed

for a period of approximately two years in a residential facility for psychiatric

treatment. Tara visited her mother and her sister from time to time on weekends

and for holidays.

White occasionally employed Lisa Gamaza as a babysitter. According to

Gamaza‟s testimony, White chastised Gamaza for permitting her boyfriend,

defendant, to visit while Gamaza tended Tara and Amanda. White explained to

Gamaza that Amanda‟s father had sodomized and orally copulated Tara, and that

Tara was in residential treatment as a result of that abuse. Gamaza also testified

that defendant had drawn a picture for Tara on one occasion, depicting a cross

dripping with blood, surrounded by flowers. Defendant ordinarily carried a buck

knife on his hip. Gamaza mentioned that White and defendant had engaged in

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methamphetamine sales with one another. Gamaza‟s relationship with defendant

ended in May 1989.

The charged offenses occurred in the early morning hours of December 22,

1990, when Tara was at her mother‟s residence for her Christmas visit. According

to the testimony of defendant‟s acquaintance, Ron Casuga, defendant spent the

preceding evening of December 21 at defendant‟s residence with Casuga and

Casuga‟s girlfriend, Shonette Leite. The group drank beer and smoked marijuana.

According to Casuga, they moved to a bar, where they were joined by Jennifer

Hartz. At approximately 11:00 p.m., the party returned to defendant‟s residence

and consumed more beer and marijuana. Casuga testified that defendant departed

with his neighbor, James Dyer, at approximately midnight. Casuga and the other

members of the group departed from defendant‟s residence at approximately

3:00 a.m. Casuga testified he left defendant a note explaining that because

defendant had not returned, the rest of the group had departed.

Dyer testified that late in the evening of December 21, 1989, defendant

requested a ride to a nearby residence, which Dyer identified at trial as White‟s

home. According to Dyer, defendant entered the residence, then emerged to direct

Dyer not to wait for him, because he would use the occupant‟s vehicle to return

home.

Tara testified that in the early morning hours of December 22, 1990, she

was sleeping in her mother‟s room with her younger sister, Amanda, when she felt

someone lift her up and carry her to her own room. She discovered that she had

been transported by defendant, with whom she was acquainted. Tara testified that

he ordered her to remove her clothing, then raped and sodomized her and forced

her to orally copulate him. Defendant informed Tara he would kill her and her

mother if she told anyone what he had done. Tara testified further that defendant

struck her on the head and arm with a hammer. She lost consciousness, then

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awoke to hear her mother slam the door of her automobile and approach the

residence. Defendant ran out of Tara‟s room. Tara observed him hiding behind

the front door. Tara testified that when her mother entered the residence, Tara

screamed a warning and that defendant then struck White on the head repeatedly

with a hammer. After White fell to the floor, defendant went to the kitchen and

retrieved a knife. He stabbed White in the neck. Tara testified that she ran to a

neighbor‟s residence, pursued by defendant.

Tara‟s testimony was marked by hostility to defense counsel, impulsive

outbursts, and her refusal to answer questions until ordered to do so by the court.

Her testimony contained some inaccuracies, such as her assertion she had

encountered defendant in her mother‟s residence, confronted him, and disarmed

him two days prior to the commission of the crimes — when Tara actually was in

her group home in Sacramento. In closing argument, the prosecutor

acknowledged that Tara‟s testimony was inaccurate in some relatively

unimportant respects and reflected her psychiatric problems. The prosecutor

pointed out, however, that her testimony was consistent in all significant respects

with statements she made to police officers and medical examiners immediately

following the crimes.

Prosecution witness John Feeny confirmed that in the early morning hours

of December 22, 1990, Tara appeared at his residence, which adjoined White‟s,

and tapped on his front door. He testified that she was clothed only in sweatpants,

was bleeding from the face and chest, and wept uncontrollably. At first Tara

informed him that her mother had dropped her off in downtown Hayward and a

man had beaten her. Feeny was skeptical because he had observed White leave

her home some 25 to 30 minutes prior to Tara‟s arrival. Feeny had spoken to

White, who had explained she was going to buy cigarettes. He had assumed there

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was another adult present at White‟s residence to care for Tara and Amanda

during her absence.

Feeny testified that shortly after he heard White‟s vehicle return, he heard

loud banging, as if someone were affixing a nail to a wall to hang a picture.

Approximately 10 minutes later, Tara arrived at his doorstep.

Feeny testified that when he contacted a police department emergency

dispatcher, Tara became distraught and stated that she had been beaten and raped

by her mother‟s friend Mike, that Mike had killed her mother by hitting her on the

head with a hammer, and that her mother‟s bloody body was lying on the floor of

her home. A tape-recording of the 911 call was played for the jury and confirmed

Feeny‟s account of Tara‟s statements to the police dispatcher. Feeny‟s testimony

also was confirmed by that of his stepdaughter, Kimberly Hoskins, who was

present when Tara arrived at Feeny‟s residence.

Casuga, who testified concerning defendant‟s movements on December 21,

1990, also stated that when he visited defendant on the morning of December 22,

defendant informed him he had injured someone and thus had blood on his

clothing. According to Casuga, defendant instructed him to say defendant had

been with Casuga all night if anyone should ask.

Prosecution witness Linda Pedersen testified that defendant contacted her

by telephone at approximately 3:00 a.m. on December 22, 1990. Pedersen resided

near White‟s residence. Defendant informed her that he was stranded at a gas

station located some six blocks from Pedersen‟s home, and he pleaded with her to

pick him up in her automobile. She was persuaded by his tone of desperation and

drove to the gas station. Following defendant‟s instructions, she parked at the side

of the station. Defendant emerged from a bathroom, jumped into her vehicle, and

ordered her to drive away. Pedersen noticed a red stain on defendant‟s jeans and

testified that he refused to explain his circumstances. Pedersen drove to her

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residence, where defendant used the telephone, and then drove defendant to his

own apartment.

Prosecution witness Dyer testified that in the early morning hours of

December 22, 1990, approximately three or four hours after he had driven

defendant to White‟s residence, defendant knocked at his door and requested a

ride to a grocery store. Dyer testified that defendant appeared nervous, and that he

slumped in his seat as Dyer drove. Defendant informed Dyer he had a headache

and needed to sleep. Dyer purchased a soporific for him, and then drove

defendant back to defendant‟s residence.

Pediatric emergency physician William Hawk testified that when Tara

arrived at Children‟s Hospital & Research Center Oakland (Children‟s Hospital) in

the early morning hours of December 22, 1990, both bones in her left forearm

were broken and she had suffered a laceration to her scalp that almost penetrated

to her skull. Her face, chest, and legs were bruised, and her lips were swollen and

lacerated. In Hawk‟s opinion, her head wound could have been inflicted by the

claw of a hammer.

Hawk testified that during his medical examination, Tara stated that

“Michael M.” had threatened her and raped her. She also identified her attacker as

Michael Martinez and described him as a Hispanic male who was approximately

25 years of age. Hawk testified that Tara informed him defendant had placed his

finger and his penis inside her vagina. Although she initially reported that there

had been no anal contact, subsequently she informed Hawk that defendant had

placed his penis inside her rectum. Tara also informed Hawk that she had been

attacked with a hammer. Hawk testified that his medical examination of Tara

revealed trauma in the vicinity of the anus, denoting anal penetration, but there

was no trauma to the vagina.

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Alameda County Deputy Sheriff Claudette Center testified that on

December 22, 1990, she responded to Feeny‟s residence, where she observed Tara

bleeding profusely from a large head wound. Screaming and weeping, Tara

repeatedly declared, “she‟s dead, I saw her fall down dead, he killed her, he fucked

me, he hit me — I have to go back.”

Center testified that her inspection of the crime scene at White‟s residence

revealed a pool of blood on the mattress in Tara‟s bedroom, blood spattered on the

walls of the bedroom, and drops of blood on the floor leading to the corner of the

room. White‟s body was on the floor in a doorway between the kitchen and the

living room of the residence. Her skull and face had been beaten in, and she was

impaled to the floor with a knife through her neck. Her body was warm, and

steam rose from the surrounding pools of blood. The front door was spattered

with blood.

After inspecting the crime scene, Center followed Tara to Children‟s

Hospital in Oakland. Center had past experience as a social worker treating

sexually abused children. She testified that at the hospital, Tara gave her an

anguished account of her experiences that night. She testified that Tara informed

her that defendant had carried her from her mother‟s bed to her own bed and,

using graphic terms, Tara declared that defendant had raped her, sodomized her,

and forced her to orally copulate him. Tara added that defendant warned her not

to say anything about what he had done. He left the room and returned, then

attacked her with a hammer and used “the sharp part” to strike her head. Center

testified Tara informed her she heard her mother return, heard yelling, and after

Tara left her bed, witnessed defendant strike her mother on the head multiple

times. Tara stated she fled from the house, and then returned briefly with the

objective of saving her younger sister, Amanda. She fled when she heard noises

inside the residence, and climbed over the fence to reach Feeny‟s residence.

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Center testified that Tara displayed extreme emotional turmoil throughout the

interview.

Alameda County Deputy Sheriff Dale Toussaint testified that he conducted

two tape-recorded interviews of Tara, one on the morning of December 22, 1990,

and one on the afternoon of the same date. The recordings were played for the

jury. The transcript of the recorded statements reflects that Tara was sleepy, a

condition the officer attributed to medication. Tara‟s statements were rambling,

and it is difficult to determine whether she was offering a chronological account or

merely blurting out each event as it occurred to her. The interview was terminated

and recommenced after several hours in order to accommodate Tara‟s need for

rest. At one point in her statements, Tara informed Toussaint that defendant was

present in the residence before Tara went to bed on the night of the crimes, but

subsequently she stated she was unaware of his presence until he woke her. She

stated that while she slept, “mommy left and then he watched us, and then he put

me in my room and started fucking me.” She added that defendant removed her

pants and underpants but not her shirt, and raped her and forced her to orally

copulate him; that at some point while assaulting her, he retrieved a knife; that he

left her room and returned with a hammer, with which he struck her; that she heard

her mother enter the residence and heard banging; and that she heard defendant

stab her mother and then ran to Feeny‟s residence. She would not acknowledge

that she witnessed defendant‟s attack on her mother. She repeatedly sought to

terminate the second interview.

Prosecution witness Sharon Smith, an Alameda County Sheriff‟s Office

criminalist, testified that rectal, vaginal, and oral swabs taken from Tara on

December 22, 1990, tested negative for semen. Semen was present, however, on

the exterior and interior of Tara‟s underpants, which had been removed and

examined when Tara arrived at the hospital. The underpants also bore blood and

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possible fecal stains. A sweatshirt removed from Tara‟s bedroom bore stains of

semen and either fecal material or saliva on the lower front portion of the shirt.

Tara‟s trousers bore bloodstains, but no evidence of semen was discovered on

them. Conventional testing for genetic markers indicated that defendant could not

be excluded as the source of the semen stains on the underpants, although the

result may have been influenced by the admixture of Tara‟s body fluids. Smith

also testified that jeans seized from defendant‟s apartment bore bloodstains that

were consistent with White‟s blood but not with Tara‟s or defendant‟s blood.

Blood collected from the hammer discovered near White‟s body matched White‟s

blood, but not defendant‟s or Tara‟s.

Samples from defendant‟s jeans and Tara‟s sweatshirt were submitted for

DNA testing. The stains from defendant‟s jeans matched White‟s DNA profile in

four of six chromosomal tests; the remaining two tests were inconclusive. The

blood found on the hammer did not come from defendant‟s body. The DNA of the

semen sample taken from the sweatshirt matched defendant‟s DNA profile in five

of six chromosomal tests; the sixth was inconclusive. The frequency with which

defendant‟s genetic profile would appear in the population was 1 out of 250

million persons belonging to the southwestern United States Hispanic population,

1 out of 760 million persons belonging to the Black population, 1 out of 890

million persons belonging to the White population, and 1 out of 480 million

persons belonging to the southeastern Hispanic population.

White‟s body was examined for evidence of sperm but none was found.

The cause of her death was acute trauma to the head, and her injuries were

consistent with hammer blows. She also had been stabbed twice in the neck.

When her body was discovered on the floor of her home, a knife had penetrated

her neck and the floor beneath her. The handle of the hammer that was recovered

near her body was split.

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Prosecution witnesses Pedersen and Casuga testified they were present in

defendant‟s residence on the evening of December 22, 1990, along with two other

persons, when the police arrived and knocked on the door. Both witnesses

testified that the officers announced several times that they had an arrest warrant.

According to the witnesses, defendant directed all those present to remain silent,

and then proceeded up the stairs to the second story. The police broke down the

door and ejected Pedersen and the other occupants of the room.

Sergeant John Reasoner of the Alameda County Sheriff‟s Office testified

that he and his partner went to defendant‟s residence on the evening of December

22, 1990, to serve an arrest warrant. Upon their arrival, they heard voices coming

from inside the apartment. The officers identified themselves several times, then

effected a forced entry. Reasoner testified that the arresting officers conducted a

search for defendant, and that when they announced they would release a police

dog and began to ascend the stairs to the second story, defendant surrendered and

was placed under arrest.

2. Defense evidence

Defendant testified in his own defense. He admitted that he killed White,

but denied assaulting Tara or, indeed, even having seen her or having had any

contact with her on the evening of White‟s death.

Defendant testified he had sold controlled substances to friends for

approximately 10 years prior to committing the charged offenses. He testified that

on December 21, 1990, he had been under the influence of methamphetamine and

unable to sleep for six days. He described further heavy use of this drug at various

points during that day. He felt “amped” or “unreal.”

Defendant testified that he consumed alcohol and smoked marijuana in his

apartment with Casuga and Leite. The party, joined by Hartz, proceeded to a bar.

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Defendant consumed two strong alcoholic drinks and ingested methamphetamine.

The group returned to defendant‟s residence, where defendant drank two beers and

ingested additional methamphetamine. Because White telephoned to say she

wished to purchase methamphetamine, defendant secured a ride to her residence

from Dyer. Before he reached White‟s residence, he visited Pedersen and ingested

methamphetamine. At White‟s residence, defendant requested the use of White‟s

automobile. Although they failed to agree on a price for his use of her vehicle,

defendant returned to Dyer‟s vehicle to say he would not need a ride. Defendant

gave Dyer some methamphetamine, and Dyer departed.

Defendant testified that he and White injected methamphetamine in Tara‟s

empty, darkened bedroom. According to him, he and White had sexual

intercourse on Tara‟s bed. Defendant testified he ejaculated on the bed. He

claimed that he and White argued concerning his use of her vehicle. She

demanded a gram of methamphetamine in exchange for his using the vehicle and

departed to buy cigarettes, returning after five or 10 minutes. When she returned,

the argument continued concerning trading methamphetamine for defendant‟s use

of the vehicle. After White hit him in the chest, he pushed her. She then swung at

defendant with a hammer. He became angry and struck her in the face. When she

fell to the ground, he retrieved the hammer and used it to beat White‟s face and

head. Defendant testified that the next thing he remembered was Pedersen

arriving to give him a ride to her residence, and then to his own apartment. He did

not realize he had killed White. He testified he did not observe Tara or interact

with her that evening.

Defendant further testified that when the police arrived at his residence on

December 22, 1990, they knocked on the door but failed to identify themselves.

According to defendant, because the officers did not respond when he questioned

them, he mounted the stairs to reach an upstairs window that could afford a view

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of the front door. He denied requesting that the other persons present remain

silent.

The defense presented the testimony of John Schlim, an expert on the

subject of methamphetamine use. He testified concerning the generally

deleterious effects of habitual methamphetamine use on the body, including

sleeplessness, and on behavior, noting an increased incidence of sudden bursts of

paranoia, hostility, and aggression. He also testified that tests of blood and urine

samples extracted from White‟s body indicated a high level of methamphetamine

intoxication at the time of her death. In Schlim‟s opinion, the tests demonstrated

White had ingested a large dose of methamphetamine approximately 10 to 14

hours prior to her death.

B. Penalty Phase Evidence

1. Prosecution evidence

The prosecution introduced evidence implicating defendant in the

uncharged murder of another woman, Christine Parks, whose body was discovered

on October 29, 1989, in an alleyway next to an athletic field. The victim‟s dress

had been pulled up above her waist. The entire body was smeared with blood and

dirt and bore evidence of multiple blunt force traumas. In addition, there were 22

stab wounds, including multiple injuries to the face, neck, chest, arms, and hands.

All had been inflicted while the victim was alive. Tire tread marks were evident in

the dirt next to the body. Death was caused by the stab wounds and the blunt force

injury. The latter was consistent with the victim‟s having been run over by an

automobile. An autopsy disclosed that the victim had injested multiple controlled

substances.

In connection with this earlier incident, prosecution witness Denise Alden

testified that defendant had borrowed an automobile from her. Early one morning

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in the autumn of 1989, defendant returned the vehicle in a badly damaged

condition. Defendant‟s finger was lacerated, and his clothing bore bloodstains.

The front end and one side of the vehicle had been damaged. The exterior had

been cleaned but there were puddles of blood on the front passenger seat and on

the floor.

Alden testified that defendant informed her he had witnessed a beating and

had given aid to the victim, a man. She testified that according to defendant, the

victim‟s assailants then attacked defendant. Defendant told her he had driven

away, dropping off the victim at the latter‟s request. Alden testified that she

witnessed defendant washing blood from a knife.

Alden further testified that she and defendant cleaned the interior of the

vehicle at a carwash facility. The victim‟s handbag subsequently was discovered

in a dumpster near the facility.

Alden‟s stepfather, Chester O‟Steen, testified that when defendant returned

Alden‟s vehicle in damaged condition, O‟Steen directed defendant to show him

the location where the purported attack had occurred and the vehicle had been

damaged. Defendant did so, but there was no broken glass or evidence of paint or

blood at that location to corroborate defendant‟s story.

Prosecution witness Gamaza testified that prior to defendant‟s commission

of the presently charged offenses, defendant informed her he had killed a man by

running him over with an automobile belonging to his then-girlfriend, Denise

Alden. According to Gamaza‟s testimony, defendant explained he was delivering

controlled substances when the man approached him and attacked him, cutting

defendant‟s finger. Defendant bragged that he had run over the individual several

times to make certain that he was dead.

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Prosecution witness Erik Eastman testified that in 1996, when he and

defendant were prisoners at Santa Rita Jail, defendant struck him twice without

provocation.

White‟s mother, Sondra Filson, testified concerning the impact of White‟s

death on her. She also described the traumatic effect of the crimes on Tara and

Tara‟s sister, Amanda.

2. Defense evidence

Defendant‟s half brother, Steve Martinez, testified regarding the harsh

treatment received by defendant at the hands of their mother when they were

children. He recounted episodes of physical abuse inflicted on defendant by his

mother. Defendant‟s half brother and his sister, Jessica Marie Hutchinson,

testified that defendant‟s mother always blamed defendant for a brain aneurysm

that substantially disabled defendant‟s father when defendant was 14 years of age.

According to these witnesses, defendant‟s mother believed an incident in which

defendant accidentally struck his father‟s head while closing a garage door was the

cause of the aneurysm that occurred months later.

II.

DISCUSSION

A. Marsden Inquiry

Defendant contends the trial court erred (1) in failing to conduct a Marsden

hearing (People v. Marsden (1970) 2 Cal.3d 118); (2) in discussing complaints

concerning defense counsel‟s representation with counsel in defendant‟s absence;

and (3) in failing to intervene to ensure that defense counsel responded adequately

to complaints concerning his legal representation of defendant. Defendant claims

these errors violated his state and federal constitutional rights to due process of

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law and a fair trial, to reliable guilt and penalty determinations, and to be

personally present at all critical stages of the proceedings. We are not persuaded.

1. Factual background

When a complaint was filed on December 26, 1990, the Alameda County

Public Defender was appointed to represent defendant. Counsel from that office

represented defendant during his 1991 preliminary hearing and subsequently filed

a motion to suppress evidence. On February 1, 1994, prior to the hearing on the

motion to suppress, the office declared a conflict of interest and attorney Lincoln

Mintz was appointed. Jury selection commenced on March 18, 1997, and the jury

was sworn on May 5, 1997.

Defendant‟s sister, Jessica Hutchinson, wrote four letters to the Superior

Court of Alameda County during March, April, and May of 1995, approximately

two years prior to the commencement of the trial. These letters complained that

Mintz had failed to communicate adequately with defendant subsequent to the

attorney‟s initial interview with his client.

The first letter, dated March 28, 1995, addressed to the court administrator,

asserted that Hutchinson was writing “on behalf of [her] brother,” and stated, “we

are requesting” that the defendant be transported to court for the next trial-setting

hearing, then scheduled for April 4, 1995. The letter acknowledged that,

ordinarily, such requests are made by counsel, but explained that defendant had

been unable to communicate in person or by telephone with his attorney for a full

year despite defendant‟s efforts to arrange a visit. The letter referred to denial of

the “right to an adequate defense” and concluded: “[Defendant] is asking for what

he is entitled to and what Mr. Mintz was appointed to give him — a defense. He

is asking for a candid, face-to-face discussion with his attorney. Mr. Mintz has

excellent recommendations and appears to be supremely qualified and well-

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respected. However, we are all extremely frustrated with this situation and the

lack of interest displayed by Mr. Mintz. We ask that all this be taken into

consideration when deciding this basic request to appear in court.”

The second letter was dated April 4, 1995, and, like the remaining two

letters, was addressed to the Honorable William McGuiness. The letter repeated

the earlier letter‟s description of defendant‟s unsuccessful efforts to contact Mintz

personally or by telephone. It requested defendant‟s presence at the next trial-

setting hearing and added that “[a]n acknowledgement and recognition of this

problem and/or any other helpful information, conveyed to my brother, would be

greatly appreciated.”

The third letter was dated April 26, 1995, and stated Hutchinson was

communicating “regarding her brother.” The letter noted that no response to the

previous letter had been received, but stated the expectation that any response

from the court would be made “to [defendant] personally.” The letter again

asserted defendant had experienced “numerous difficulties” communicating with

Mintz. It continued: “I do not believe [defendant] wants to change his attorney

further delaying the proceedings. However, you must understand his intense

frustration and ours as we have no legal advisor or access to the system at this

current time. Not everyone enjoys the privileges of O.J. Simpson, but, regardless,

[defendant] is entitled to legal representation. If Mr. Mintz is not willing or able

to give this to him, it is the very least his obligation to let [defendant] know about

it. We respectfully ask you to intervene, in an appropriate manner, and facilitate

some communication between Mr. Mintz and [defendant]. [¶] I apologize for this

ordeal which should involve you. However, we are not sure of where to turn

either and can not see any reason for what seems to be a continual neglect of

[defendant].”

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The fourth letter was dated May 10, 1995, and again was characterized as a

communication “regarding” defendant. Defendant‟s sister requested “some kind

of acknowledgement” from the court. It noted that “to my knowledge, Mr. Mintz

has still not consulted with [defendant] at all about his case,” and asserted that

“[defendant] would simply like to meet and consult with Mr. Mintz prior to going

to trial. If it takes judicial intervention to do so, then that is what he is asking.”

On June 1, 1995, Judge McGuiness conducted a trial-setting proceeding.

Defense counsel waived defendant‟s right to be present at the hearing. The clerk

of the court noted in the record that the “[c]ourt further notes receiving

correspondence from Jessica [Hutchinson]. [Counsel] receives copies of said

correspondence and states he has ongoing contact with client and will contact

family [with] future dates.”

The reporter‟s transcript of the hearing reflects the following interchange.

“The Court: I would note parenthetically, for the record, the court received

communications on May [10] and April 26 from a Jessica [Hutchinson], directed

to the court. [¶] I have shared that correspondence, providing a copy with respect

to those letters to Mr. Mintz. [¶] Mr. Mintz, did you want to state anything on the

record with regard to that?

“[Defense counsel]: Just briefly. [¶] [Defendant] and I are in

communication, your honor, contrary to what concerned members of his family

have said. [¶] The Court, [defendant] and I have discussed the defense in this

case. And what I will do is, previous to the July 13th [trial-setting] date, I will

take up the matter of these with [defendant] and his family, and see that the court

receives a communication, and close up the matter.”

Defendant asserts that there was no further discussion of the matter on the

record.

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2. Discussion

Defendant contends the letters sent by his sister imposed a duty upon the

court to order that he be transported to the court for a hearing at which the court

could inquire into the adequacy of the legal representation provided to defendant

by Mintz. Defendant places primary reliance upon this court‟s decision in

People v. Marsden, supra, 2 Cal.3d 118 (Marsden). In that case, the defendant

complained in general terms that his appointed counsel was not providing

adequate representation, and the court inferred that he wished to discharge counsel

and substitute another appointed attorney. The court conducted a hearing, but

erred by refusing to permit defendant to list particular instances in which he felt

his counsel had performed inadequately. (Id. at p. 124.)

In Marsden, supra, 2 Cal.3d 118, we explained that although an indigent

defendant possesses a right under the Sixth Amendment to the assistance of court-

appointed counsel, he or she does not have an unlimited right to require the trial

court to discharge appointed counsel and appoint substitute counsel. (Marsden, at

p. 123.) The decision whether to substitute counsel at the defendant‟s request rests

within the trial court‟s discretion; when ineffective assistance of counsel is alleged

by the defendant, the court should grant a request to substitute counsel if there is

“ „ “a sufficient showing . . . that the right to the assistance of counsel would be

substantially impaired . . . in case the request is not granted . . . .” ‟ ” (Ibid.)

In Marsden, supra, 2 Cal.3d 118, we pointed out that a trial court cannot

discharge its duty without hearing the reasons for the defendant‟s belief that his or

her attorney has not afforded adequate representation. (Id. at pp. 123-124.) We

observed that “ „the critical factual inquiry ordinarily relates to matters outside the

trial record‟ ” (id. at p. 123), and concluded that denial of a motion to substitute

counsel based upon the court‟s observations in the courtroom — without affording

the defendant an opportunity to offer argument or evidence in support of his or her

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complaint — “ „is lacking in all the attributes of a judicial determination.‟ ” (Id. at

p. 124.)

We also rejected the position taken by the trial court in the Marsden case —

that it was prohibited from advising the defendant how to present his request to

substitute counsel. We pointed out that, on the contrary, we had commended

courts that aided unrepresented persons “ „as to the presentation of evidence, the

rules of substantive law, and legal procedure.‟ ” (Marsden, supra, 2 Cal.3d at

p. 126.) Even as to defendants who are represented, we concluded it is within the

court‟s authority to assist a defendant who is “groping for the proper manner in

which to demonstrate the alleged lack of competence of his attorney . . . .” (Ibid.)

a. Absence of request to substitute counsel

As a threshold matter, defendant‟s claim fails because a review of the

record reveals that defendant did not complain concerning counsel, nor did he

request substitution of counsel. Although a formal motion is not required, the trial

court‟s duty to conduct an inquiry into the reasons the defendant believes his or

her attorney is incompetent arises only when the defendant (or in some instances

counsel) provides “ „at least some clear indication‟ ” that the defendant wishes to

substitute counsel. (People v. Dickey (2005) 35 Cal.4th 884, 920; see People v.

Valdez (2004) 32 Cal.4th 73, 97; People v. Mendoza (2000) 24 Cal.4th 130, 157.)

Because defendant made no assertion whatsoever regarding dissatisfaction with

counsel, the trial court‟s duty under Marsden was not triggered.

Moreover, contrary to defendant‟s contention, even if we were to view the

letters sent by defendant‟s sister as emanating from defendant, those letters do not

contain a “clear indication” from the defendant that he desired substitution of

counsel on the ground of counsel‟s deficiencies. In fact, as noted above, one of

the letters states that “Mr. Mintz has excellent recommendations and appears to be

19

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supremely qualified and well-respected.” The letters do not even imply a request

to substitute counsel. Rather, they complain of lack of communication between

defendant and his counsel, and request the court‟s intervention to improve

attorney-client communication. In the absence of a request to discharge appointed

counsel, however, differences of opinion between a defendant and his or her

appointed counsel regarding the conduct of the defense do not impose a duty upon

the court to conduct a Marsden hearing. (People v. Lucky (1988) 45 Cal.3d 259,

281.)

b. Invocation of defendant’s rights under Marsden by a third

party

In addition, the circumstance that the letters were sent by a third party

renders them an insufficient basis for imposing a duty upon the court to conduct a

Marsden hearing. This is so because our decision in Marsden, supra, 2 Cal.3d

118, was intended to afford protection to the defendant‟s right to counsel as

guaranteed by the Sixth Amendment, and the constitutional right to counsel is

personal to the defendant and ordinarily cannot be asserted vicariously. (People v.

Badgett (1995) 10 Cal.4th 330, 343-344; see also People v. Tena (2007) 156

Cal.App.4th 598, 613 [describing the personal nature of the right to present a

defense, and to counsel].)2


2

We observe that persons who are not parties to litigation ordinarily cannot

be heard in the litigation. In civil litigation a nonparty who has not formally
intervened ordinarily cannot make a motion (Difani v. Riverside County Oil Co.
(1927) 201 Cal. 210, 214; Marshank v. Superior Court (1960) 180 Cal.App.2d
602, 605; see generally 6 Witkin, Cal. Procedure (5th ed. 2008) Proceedings
Without Trial, § 4, p. 430.) The same generally is true in criminal cases. As we
explained in Dix v. Superior Court (1991) 53 Cal.3d 442: “Except as specifically
provided by law, a private citizen has no personal legal interest in the outcome of
an individual criminal proceeding against another person.” (Id., at p. 451, italics
added; see also 4 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Introduction

(footnote continued on next page)

20

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It would be inappropriate to recognize a third party‟s authority to require

the court to conduct a Marsden inquiry, because the defendant‟s right to mount a

defense in the manner that he or she, under the direction of defense counsel, deems

best requires that counsel‟s independence from third party influence be protected.

The court must exercise circumspection in taking actions that may interfere with

an existing attorney-client relationship, and must remain “on [its] guard neither to

infringe upon the defendant‟s right to counsel of his choice, nor to compromise the

independence of the bar.” (Smith v. Superior Court (1968) 68 Cal.2d 547, 559

[“The value in issue . . . is „the state‟s duty to refrain from unreasonable

interference with the individual‟s desire to defend himself in whatever manner he

deems best, using every legitimate resource at his command‟ ”]; see Cannon v.

Commission on Judicial Qualifications (1975) 14 Cal.3d 678, 697; see also People

v. Jones (2004) 33 Cal.4th 234, 244; Ingraham v. Justice Court (1968) 69 Cal.2d

832, 840.) We would risk encouraging interference with the attorney-client

relationship were we to hold that a trial court must conduct a Marsden hearing

when a third party complains concerning the representation received by a

defendant.3


(footnote continued from previous page)

to Criminal Procedure, § 21, pp. 30-32); but see Cal. Const., art. I, § 28, amended
by initiative, Gen. Elec. (Nov. 4, 2008) [commonly known as Prop. 9, affording
certain rights to victims of crimes]; §§ 679.026, 1191.1-1191.2, 3041.5, 3043-
3044 [also affording certain rights to victims of crime in some instances].)

3

Defendant‟s claim that his sister acted as his agent does not assist his

position. Even lawyers may not appear on behalf of persons who are represented
by other attorneys. (1A Cal.Jur.3d (2006 ed.) Actions, § 130, p. 179; see also
Rules Prof. Conduct, rule 2-100(A); 1 Witkin, Cal. Procedure, supra, Attorneys,
§ 422, p. 536.) Indeed, with limited exceptions — including the one developed in
our Marsden decision — the client himself or herself must be heard in court
through his or her counsel. (People v. Masterson (1994) 8 Cal.4th 965, 969; 1

(footnote continued on next page)

21

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Practical considerations support the conclusion we reach. A third party

does not owe a duty of loyalty to the defendant, whereas a party‟s attorney owes

the highest fiduciary duty to his or her client. (1 Witkin, Cal. Procedure, supra,

Attorneys, § 90, pp. 125-127; id., § 101, p. 138.) The intervention of a person who

is not under such a duty could impair the defendant‟s interests, especially because

third parties may have motives that are inimical to the defense position. And

when the nonparty is not a lawyer, even a well-intentioned person adversely could

impact the defendant‟s position because of ignorance of the law. (See J.W. v.

Superior Court (1993) 17 Cal.App.4th 958, 969.) In addition, because

communication between attorney and client is confidential and privileged, third

parties are unlikely to have complete information concerning the attorney-client

relationship. Accordingly, third parties ordinarily lack a reliable basis upon which

to allege ineffective assistance of counsel.

Finally, there is no necessity to impose a duty upon the court to entertain

Marsden motions made by third parties, because even incarcerated defendants can

speak for themselves in various ways. There is no indication on the present record

that defendant was unable to communicate with the court except through his sister.

Defendant, like his sister, could have mailed a letter to the court. He also could

have complained concerning the representation afforded to him at the first

opportunity when he ultimately did appear in court.


(footnote continued from previous page)

Witkin, Cal. Procedure, supra, Attorneys, § 239, p. 312; id., § 243, p. 316; see also
People v. Carpenter (1997) 15 Cal.4th 312, 376, superseded by statute on other
grounds as recognized in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106-
1107.) In light of this circumstance, it would be anomalous to conclude that
applications made by a stranger to the litigation nonetheless must be considered
and acted upon by the court.

22

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For all these reasons, we perceive no cause to deviate from principles

recognizing the personal nature of the right to counsel and protecting the attorney-

client relationship from third-party interference. We decline to impose upon the

court a duty to conduct a hearing or respond to criticism of appointed counsel that

has been levied by a nonparty.

c. Asserted obligation to intervene on the court’s own motion

Defendant contends that trial courts are under an obligation to protect the

defendant‟s right to effective assistance of counsel through inquiry initiated in the

first instance by the court, once the court knows or should know that the adequacy

of counsel‟s representation is in question. Defendant claims the court, at the least,

should have “acknowledged” his sister‟s letters, permitted defendant to appear

before the court, and “follow[ed] up on Mr. Mintz‟s promise to furnish the court

with a „communication‟ to „close up the matter.‟ ” To the extent defendant claims

the court is under an obligation to conduct a Marsden inquiry on its own motion,

we are not persuaded. On the contrary, as suggested by the many decisions of this

court requiring some indication from the defendant (or defense counsel) (see

People v. Carter (2005) 36 Cal.4th 1114, 1194) that the defendant wishes to

substitute counsel (People v. Valdez, supra, 32 Cal.4th at p. 96; People v. Dickey,

supra, 35 Cal.4th at pp. 920-921), we agree with the decisions of the Courts of

Appeal holding specifically that the trial court is not required to conduct a

Marsden hearing on its own motion. (People v. Lara (2001) 86 Cal.App.4th 139,

150; People v. Leonard (2000) 78 Cal.App.4th 776, 787; People v. Gay (1990)

221 Cal.App.3d 1065, 1070; see also People v. Monteil (1993) 5 Cal.4th 877,

906.)

To the extent defendant‟s claim is based upon an asserted general duty on

the part of the trial court to supervise appointed counsel, any obligation that may

23

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rest upon the court to uphold a proper standard of representation by appointed

counsel (see McMann v. Richardson (1970) 397 U.S. 759, 771; People v.

McKenzie (1983) 34 Cal.3d 616, 630, disapproved on another point in People v.

Crayton, supra, 28 Cal.4th at pp. 364-365) is circumscribed and must be

understood in light of the countervailing duty of the court to respect the

inviolability of the attorney-client relationship and to permit the defendant to

present his or her defense in the manner deemed appropriate by counsel in

consultation with the defendant. (See Smith v. Superior Court, supra, 68 Cal.2d at

pp. 559-561; see also People v. Jones, supra, 33 Cal.4th at pp. 242-244.) Thus,

the trial court‟s authority to discharge an appointed attorney for misconduct or

incompetence on its own motion is limited. (See People v. Jones, supra, 33

Cal.4th at p. 243, citing Cannon v. Commission on Judicial Qualifications, supra,

14 Cal.3d at p. 697.)

In any event, whatever may be the obligation of a court to initiate a hearing

when the defendant complains to the court concerning appointed counsel‟s

performance, or when the court, in person, has observed an attorney‟s apparent

disregard for his or her client‟s interests, no such obligation falls upon a court

simply because a third party has suggested that appointed counsel — long before

the commencement of trial — has neglected a client who is equally capable of

lodging such a complaint.4


4

Defendant suggests that if the court was not inclined to assist defendant in

formulating a Marsden motion, it should have appointed independent advisory
counsel to represent him “on the issue of whether he was receiving the effective
assistance of counsel . . . .” We have rejected the same claim in a prior decision.
(People v. Hines (1997) 15 Cal.4th 997, 1024-1025.)


Defendant also relies upon a federal decision declaring that “to compel one

charged with [a] grievous crime to undergo a trial with the assistance of an
attorney with whom he has become embroiled in irreconcilable conflict is to

(footnote continued on next page)

24

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We also acknowledge that the trial court does bear a duty of inquiry on its

own motion when it knows or should know of a potential conflict of interest

between a defendant and his or her counsel. Specifically, “[w]hen a court

„ “knows or reasonably should know that a particular conflict exists,” ‟ it should

inquire into the conflict even in the absence of objection by the defendant or his or

her counsel.” (People v. Cornwell (2005) 37 Cal.4th 50, 75, disapproved on

another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; see also

People v. Rundle (2008) 43 Cal.4th 76, 176, disapproved on another point in

People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22.) Nonetheless, “the duty to

inquire is not triggered merely because of „a vague, unspecified possibility of

conflict.‟ ” (People v. Cornwell, at p. 75 [noting that not every instance of an

attorney‟s representation of multiple defendants charged with the same crime

gives rise to a duty of inquiry].) But, as with defendant‟s doubtful assertion that

the court has a general obligation to supervise counsel to ensure adequate

representation, even assuming some such limited duty under certain

circumstances, the cited decisions fall far short of suggesting a duty to initiate a

hearing whenever the court receives any indication, even one made by a third

party, that appointed counsel has failed to communicate adequately with the

defendant — a complaint that, by itself, ordinarily is not a sufficient basis to

require a court to grant even the defendant’s own request to substitute counsel.

(See People v. Cole (2004) 33 Cal.4th 1158, 1192.)


(footnote continued from previous page)

deprive him of the effective assistance of any counsel whatsoever.” (Brown v.
Craven (9th Cir. 1970) 424 F.2d 1166, 1170.) Because the defendant in that case
had complained concerning his attorney and requested substitute counsel on four
occasions, ultimately refusing entirely to cooperate at trial, that case is clearly
distinguishable.

25

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Defendant asserts that the special need for reliability existing in capital

trials requires courts to conduct an inquiry or take some further action to ensure

diligent and competent assistance of appointed counsel under circumstances such

as occurred in the present case. Indeed, as defendant contends, high court

decisions state as a general proposition that the Eighth and Fourteenth

Amendments to the United States Constitution prescribe heightened reliability for

proceedings in capital cases. (See Zant v. Stephens (1983) 462 U.S. 862, 874-879;

Beck v. Alabama (1980) 447 U.S. 625, 637-638.) Defendant offers no authority,

however, supporting the view that this general rule requires trial courts to

intervene in the attorney-client relationship on the basis of complaints concerning

attorney-client communication brought by third parties.5


5

Defendant seeks to bolster his claim by pointing to counsel‟s conduct

throughout the trial, but the trial court‟s actions ordinarily must be reviewed on the
basis of the evidence before it at the time it made its decision concerning such a
complaint. (See People v. Berryman (1993) 6 Cal.4th 1048, 1070, disapproved on
other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) The decisions
of the trial court cannot be reviewed on the basis of the subsequent conduct of
counsel. Defendant‟s claim that the court should have “followed up on” his
sister‟s complaints ignores the circumstance that the court was not under an
obligation to respond to complaints made by third parties. In addition, defendant‟s
reference to his attorney‟s conduct of the trial principally is offered in support of
his claim that any error on the part of the court in failing to conduct a hearing on
the basis of his sister‟s letters was prejudicial, but we have concluded there was no
error, obviating the need to inquire into prejudice. Finally, although we have
taken judicial notice of certain records of professional discipline imposed on
Mintz, including disbarment subsequent to the trial in the present case (see Evid.
Code, § 452), these records are not relevant to defendant‟s claim. (See People v.
Hill, supra, 148 Cal.App.3d at p. 755 [“a court may not go outside the record of
the immediate prosecution and base the disposition of [the] defendant‟s [Marsden
motion] upon observations of the attorney on other occasions”].) There is no
indication that the court was aware of misconduct by Mintz toward his other
clients.

26

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d. Asserted error in conducting hearing in defendant’s absence

Defendant contends his rights to counsel and to be present at critical stages

of the proceedings were violated when the trial court conducted the trial-setting

hearing on June 1, 1995, and discussed defendant‟s sister‟s letters with counsel,

but failed to order that defendant be brought to court for the hearing. He contends

that his attorney failed to represent him at the hearing, leaving him “totally without

representation at a crucial hearing.”

Indeed, trial courts ordinarily should not enter into a discussion of a

defendant‟s Marsden motion with defense counsel when the defendant is absent.

(People v. Hill (1983) 148 Cal.App.3d 744, 755; 5 Witkin & Epstein, Cal.

Criminal Law, supra, Criminal Trial, § 222, p. 347; see also People v. Perry

(2006) 38 Cal.4th 302, 313 [“We do not dispute that a defendant may be entitled

to be present at a conference called to consider whether to remove his counsel for

conflict of interest or any other reason, because the removal of counsel will affect

the defendant‟s representation at trial, and is a matter on which the defendant‟s

views should be heard”].) Defendant‟s trial-setting hearing, however, did not

constitute a hearing on a Marsden motion, and the court did not consider at the

trial-setting hearing whether to substitute counsel.

With respect to defendant‟s claim that he had a right to be present at the

trial-setting hearing, “[u]nder the Sixth Amendment‟s confrontation clause, a

criminal defendant does not have a right to be personally present at a particular

proceeding unless his appearance is necessary to prevent „interference with [his]

opportunity for effective cross-examination.‟ [Citations.] [¶] Similarly, under the

Fourteenth Amendment‟s due process clause, a criminal defendant does not have a

right to be personally present at a particular proceeding unless he finds himself at a

„stage . . . that is critical to [the] outcome‟ and „his presence would contribute to

27

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the fairness of the procedure.‟ [Citation.]” (People v. Waidla (2000) 22 Cal.4th

690, 741-742.)

We need not discuss the boundaries of defendant‟s right to be present at

pretrial hearings, or whether defendant effectively waived his presence at the trial-

setting hearing, however, because any error in failing to secure his presence was

harmless beyond a reasonable doubt. (See Rushen v. Spain (1983) 464 U.S. 114,

117-118, fn. 2; see also Campbell v. Rice (9th Cir. 2005) 408 F.3d 1166, 1172-

1173; People v. Romero (2008) 44 Cal.4th 386, 419; People v. Ayala (2000) 24

Cal.4th 243, 268-269; People v. Bradford (1997) 15 Cal.4th 1229, 1357; People v.

Wright (1990) 52 Cal.3d 367, 403.) As noted, the court did not conduct a

Marsden hearing or reach any decision at the trial-setting hearing of June 1, 1995;

the court did not interpose any obstacle to defendant‟s expressing dissatisfaction

with Mintz by letter or at a later hearing actually attended by defendant;6 and the

proceedings of which defendant complains occurred approximately two years

prior to the commencement of the trial, leaving him multiple subsequent

opportunities to express — for himself — any reservations he entertained

concerning his defense counsel.

B. Exclusion of Prospective Jurors for Cause

Defendant contends the trial court improperly sustained the prosecutor‟s

challenges for cause against two prospective jurors, in violation of his state and

federal constitutional rights to due process of law, a fair and impartial jury, and a

reliable penalty verdict. (U.S. Const., 5th, 6th, 8th & 14th Amends.; Cal. Const.,

art. I, §§ 7, 15, 16 & 17.) He contends these two prospective jurors did not


6

As defendant acknowledges, he was personally present at a pretrial hearing

conducted on August 9, 1996, and at subsequent hearings and at all portions of the
trial, which commenced in March 1997.

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express views concerning capital punishment that warranted their exclusion from

the jury, that the trial court employed an incorrect standard in making its ruling,

and that the court displayed bias against prospective jurors who had reservations

concerning the death penalty.7 As we shall explain, we conclude the trial court did

not abuse its discretion and did not apply an incorrect standard or display bias.

1.

Governing principles

The state and federal Constitutions guarantee a criminal defendant the right

to a trial by an impartial jury. (Wainwright v. Witt (1985) 469 U.S. 412, 424

(Witt); People v. Wilson (2008) 44 Cal.4th 758, 778.) Decisions of the United

States Supreme Court and of this court make it clear that a prospective juror‟s

personal views concerning the death penalty do not necessarily afford a basis for

excusing the juror for bias. As the high court observed, because “ „[a] man who

opposes the death penalty, no less than one who favors it, can make the

discretionary judgment entrusted to him by the State,‟ ” it follows that “ „a

sentence of death cannot be carried out if the jury that imposed or recommended it

was chosen by excluding veniremen for cause simply because they voiced general

objections to the death penalty.‟ ” (Uttecht v. Brown (2007) 551 U.S. 1, 6.)

Rather, when a juror is challenged for cause because of his or her views

concerning capital punishment, the trial court must apply the following standard:

“ „[T]o achieve the constitutional imperative of impartiality, the law permits a

prospective juror to be challenged for cause only if his or her views in favor of or

against capital punishment “would „prevent or substantially impair the

performance of his duties as a juror in accordance with instructions and the juror‟s


7

Defendant claims that error in this regard would require reversal not only of

the penalty phase judgment but also of the guilt phase judgment. This claim lacks
merit. (People v. Heard (2003) 31 Cal.4th 946, 966.)

29

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oath.‟ ” (People v. Blair (2005) 36 Cal.4th 686, 741, quoting Witt, supra, 469 U.S.

at p. 424.)

As we have explained in many decisions, “ „ “[t]here is no requirement that

a prospective juror‟s bias against the death penalty be proven with unmistakable

clarity. [Citations.] Rather, it is sufficient that the trial judge is left with the

definite impression that a prospective juror would be unable to faithfully and

impartially apply the law in the case before the juror.” ‟ ” (People v. Abilez (2007)

41 Cal.4th 472, 497-498.)

The trial court‟s determination is reviewed for abuse of discretion. (People

v. Abilez, supra, 41 Cal.4th at pp. 497-498.) Reviewing courts defer to the trial

court on the essentially factual question of the prospective juror‟s true state of

mind. (People v. Lewis (2008) 43 Cal.4th 415, 483.) Indeed, “the [trial court‟s]

finding may be upheld even in the absence of clear statements from the juror that

he or she is impaired because „many veniremen simply cannot be asked enough

questions to reach the point where their bias has been made “unmistakably clear”;

these veniremen may not know how they will react when faced with imposing the

death sentence, or may be unable to articulate, or may wish to hide their true

feelings.‟ [Citation.] Thus, when there is ambiguity in the prospective juror‟s

statements, „the trial court, aided as it undoubtedly [is] by its assessment of [the

venireman‟s] demeanor, [is] entitled to resolve it in favor of the State.‟ ” (Uttecht

v. Brown, supra, 551 U.S. at p. 7.) In sum, even when “ „[t]he precise wording of

the question asked of [the venireman], and the answer he gave, do not by

themselves compel the conclusion that he could not under any circumstance

recommend the death penalty,‟ the need to defer to the trial court remains because

so much may turn on a potential juror‟s demeanor.” (Id. at p. 8.)

The deference owed to the trial court‟s determination bears emphasis. As

explained in a recent decision by the United States Supreme Court, “[d]eference to

30

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the trial court is appropriate because it is in a position to assess the demeanor of

the venire, and of the individuals who compose it, a factor of critical importance in

assessing the attitude and qualifications of potential jurors.” (Uttecht v. Brown,

supra, 551 U.S. at p. 9.) The trial court‟s determination whether a prospective

juror entertains disqualifying bias “ „is based upon determinations of demeanor

and credibility that are peculiarly within a trial judge‟s province.‟ ” (Id. at p. 7.)

Our own decisions are in accord: “[A]ppellate courts recognize that a trial

judge who observes and speaks with a prospective juror and hears that person‟s

responses (noting, among other things, the person‟s tone of voice, apparent level

of confidence, and demeanor) gleans valuable information that simply does not

appear on the record.” (People v. Stewart (2004) 33 Cal.4th 425, 451.)

Jurors commonly supply conflicting or equivocal responses to questions

directed at their potential bias or incapacity to serve. When such conflicting or

equivocal answers are given, the trial court, through its observation of the juror‟s

demeanor as well as through its evaluation of the juror‟s verbal responses, is best

suited to reach a conclusion regarding the juror‟s actual state of mind (People v.

Hamilton (2009) 45 Cal.4th 863, 890), and its determination “ „ “as to [the juror‟s]

true state of mind is binding on an appellate court.” ‟ ” (People v. Boyette (2002)

29 Cal.4th 381, 416, italics added.) The trial court‟s resolution of conflicts on the

question of juror bias is binding on the reviewing court if supported by substantial

evidence. (People v. Hamilton, supra, 45 Cal.4th at p. 890.)

In applying these precepts, however, we must keep in mind that a

prospective juror who is firmly opposed to the death penalty is not disqualified

from serving on a capital jury. “[N]ot all who oppose the death penalty are subject

to removal for cause in capital cases; those who firmly believe that the death

penalty is unjust may nevertheless serve as jurors in capital cases so long as they

state clearly that they are willing to temporarily set aside their own beliefs in

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deference to the rule of law.” (Lockhart v. McCree (1986) 476 U.S. 162, 176; see

People v. Stewart, supra, 33 Cal.4th at p. 446.) As this court has stated, “a

prospective juror‟s personal conscientious objection to the death penalty is not a

sufficient basis for excluding that person from jury service in a capital case . . . .

„ . . . The real question is whether the juror‟s attitude will “ „prevent or

substantially impair the performance of his duties as a juror in accordance with his

instructions and his oath.‟ ” . . . A juror whose personal opposition toward the

death penalty may predispose him to assign greater than average weight to the

mitigating factors presented at the penalty phase may not be excluded, unless that

predilection would actually preclude him from engaging in the weighing process

and returning a capital verdict.‟ ” (People v. Stewart, supra, 33 Cal.4th at p. 446,

italics omitted; see People v. Kaurish (1990) 52 Cal.3d 648, 699.)

2. Discussion

a. Prospective Juror B.S.

In her questionnaire, Prospective Juror B.S. stated she was “strongly

against” the death penalty, but she also checked a box indicating she did not “hold

any religious, moral feelings or philosophical principles that would affect [her]

ability to vote for the death penalty in this case.” She repeated that she was

“strongly against” the death penalty and would vote against a ballot measure

authorizing capital punishment, explaining that she believed such punishment

“serves no useful purpose; makes killers out of us.” At the same time, she added

that she could “see some circumstances where society would have to put an end to

someone‟s life.”

During voir dire, the court explained to Prospective Juror B.S. that it would

determine whether prospective jurors would “truly have an open mind to both

penalty choices,” permitting them to “realistically and practically, not as a matter

32

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of theory, . . . seriously consider imposing either . . . the death penalty or life in

prison without possibility of parole.” The court inquired: “What‟s your . . .

bottom line judgment here on yourself? You have some very strong views you

expressed in your questionnaire. Do you think as a practical realistic matter both

of these penalty alternatives are really available to you?”

B.S. responded: “I have some very strong views against the death penalty.

And I feel I could listen to the evidence and make a determination based on the

evidence. It‟s not something that I would look forward to doing, but I feel I could

do it.”

When the trial court noted that Prospective Juror B.S. “generally opposed

the death penalty,” she corrected the court, stating, “I would change that to

strongly” in lieu of “generally.” The court referred to her stated view that capital

punishment serves no useful purpose and “makes everyone a killer,” but that there

might be circumstances in which “society would have to put an end to someone‟s

life.” The court commented: “Now bear in mind the decision the jury would be

asked to make here is not a decision by society, it‟s a decision that you personally

would have to make. So my question [is] do you . . . realistically and practically

feel that you could ever vote for the death penalty, you yourself personally vote

for the death penalty?” B.S. responded: “I think I probably could if the evidence

warranted it. I would not do so lightly. And I would be more inclined not to.”

As defendant points out, in spite of her philosophical views Prospective

Juror B.S. did assert on several occasions that she could impose a sentence of

death. When the prosecutor asked whether there was a realistic possibility she

could “vote to end [defendant‟s] life,” B.S. responded that “I‟d [say] that I could

do it if I had to do it.” Her explanation introduced some ambiguity into her

response, however: “Even though I am philosophically opposed to the death —

I‟m strongly opposed to the death penalty —I also have thought long and hard

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about this during these last weeks and I would rather have me on a jury than

somebody who has no opinion or somebody who is vociferously for the death

penalty.”

When the prosecutor inquired as to which circumstances might lead her to

vote for the death penalty despite her belief the penalty “makes killers out of us,”

she referred to “particularly heinous” crimes, to recidivists, “or if it seemed like

this is the kind of person he was before this time as well, I‟m just kind of talking

off the top of my head, I don‟t know. I really have to . . . hear the evidence, hear

the facts . . . .”

The prosecutor commented that some persons might be unable to impose

the death penalty for crimes such as those charged against defendant, that is for a

murder in the course of a child molestation. The prosecutor continued: “Just

knowing yourself . . . and the fact that you feel that the death penalty serves no

purpose other than making killers out of us all, . . . is it realistic that you would

vote for the death penalty in this case that we have here?”

B.S. responded: “It is not realistic that I would, but it is realistic that I can,

that I could. I‟m sorry, I‟m a writer.”

When the prosecutor asked her to elaborate, she responded: “Well, I don‟t

think I can say more about it than I already have. I take this seriously. There is a

possibility that I could vote for the death penalty. I would have to have all the

evidence, all the facts, and it would have to be something that would push me

beyond the way I normally feel about the death penalty. But . . . that could

happen.”

The prosecutor pursued the point made by the prospective juror that she

could vote in favor of the death penalty only if something “pushed her beyond”

her established views, asking whether she meant that although it was possible that

certain evidence could cause her to vote for the death penalty, it was not “realistic”

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that she would. B.S. parried this question with the comment that she believed the

prosecutor was “trying to get [her] to say that [she] would never vote for the death

penalty.” The prosecutor explained that a person who automatically would reject

the death penalty would not afford the People a fair trial. He asked: “[I]s this an

appropriate case for you as far as the nature of this case [and] the imposition of the

death penalty . . . given what you have written in your questionnaire?”

B.S. responded: “I think I can hear the evidence and I think I can make a

good decision according to the law. I am not looking to be on this jury. I don‟t

especially want to, but if I am chosen for the jury I think I would make a good

decision.”

The prosecutor challenged Prospective Juror B.S. for cause. In the

prosecutor‟s view, B.S. had “engage[d] in verbal gymnastics,” was evasive, and

lacked candor. By contrast, defense counsel opposed the challenge and argued

that a juror who is strongly opposed to the death penalty and would be disinclined

to reach a verdict of death nonetheless may serve on a jury if his or her ability to

follow the law is not impaired.

In making its determination, the trial court commented that B.S. held the

strongest views opposing the death penalty of any of the prospective jurors who

had been questioned, and that “no one ha[s] articulated with such a precise and

devastating impact the depth of her feeling against capital punishment wherein she

brands anyone who would impose capital punishment a killer.” Referring to the

prosecutor‟s question whether it was realistic to suppose B.S. would vote for a

sentence of death, the court commented that her initial statement in response to the

prosecutor — that “[i]t is not realistic that I would” impose a sentence of death —

rendered the second part of her answer — “it is realistic that I . . . could” —

“essentially irrelevant. . . . I think what she’s telling me in the context of all the

statements she‟s made here, especially in the statement in the questionnaire . . . is

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that she would never vote for the death penalty under any circumstances.” (Italics

added.) The court expressed “a definite impression that she would be unable to

fulfill and impartially apply the law,” and “a definite impression based on her

questionnaire and based on what she said here in court that her views are such that

[they] would prevent or substantial[ly] impair her performance [of her] duties in

accordance with . . . instructions [and] . . . her oath. . . .”

The trial court‟s impression of the prospective juror‟s true state of mind is

entitled to deference under the circumstances apparent in the present case. This

court has considered the extensive transcript documenting the voir dire of B.S.

The trial court “supervised a diligent and thoughtful voir dire” (Uttecht v. Brown,

supra, 555 U.S. at p. 20), taking pains to state and apply the correct standard and

to explain the overall impression it received from the entire voir dire of B.S. As

required by our decisions, the court “engage[d] in a conscientious attempt to

determine [this] prospective juror‟s views regarding capital punishment . . . .”

(People v. Wilson, supra, 44 Cal.4th at p. 779.) Although the juror declared a

theoretical possibility that she could vote for the penalty of death, the court

legitimately could infer from the strength of the juror‟s views, her verbal fencing

with the prosecutor, and her equivocal statements, that she was substantially

impaired in her ability to perform her duties as a juror.

Defendant claims that deference to the trial court is unwarranted because, in

his view, the prospective juror did not equivocate on any significant point during

her voir dire. We disagree. She equivocated when the trial court inquired whether

she “realistically and practically” believed she could “personally vote for the death

penalty,” to which she replied, “I think I probably could if the evidence warranted

it.” (Italics added.) It appeared she proposed to hold to her views unless

something “push[ed] [her] beyond the way [she] normally [felt] about the death

penalty.” Finally, when the prosecutor legitimately inquired whether it was

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realistic to suppose she would vote in favor of the penalty of death for a murder

committed in connection with a child molestation (see People v. Hill (1992) 3

Cal.4th 959, 1003, disapproved on another point in Price v. Superior Court (2001)

25 Cal.4th 1046, 1069, fn. 13; People v. Pinholster (1992) 1 Cal.4th 865, 917-

918), her response — that it was “not realistic that I would, but it is realistic that I

can, that I could” impose the death penalty (italics added) — appeared to the court

in the context of the questioning to be “verbal gymnastics,” as the prosecutor

alleged, rather than an exercise in grammar, as defendant claims. (See People v.

DePriest (2007) 42 Cal.4th 1, 21 [noting the significance of a prospective juror‟s

avoidance of the prosecutor‟s questions].) The trial court explained that the

response persuaded it that B.S.‟s actual state of mind was such that there was no

realistic possibility she ever would vote in favor of a penalty of death. (The court

evidently paid attention to the demeanor of prospective jurors throughout the voir

dire, stating later in the proceedings that “I‟m very sensitive to . . . such things as

body language, unspoken pauses . . . .” [See p. 56; see also pp. 53, 55, post].) The

court‟s determination concerning the prospective juror‟s true state of mind is

entitled to deference.

Defendant objects to the trial court‟s reliance upon the strength of the

prospective juror‟s opposition to the death penalty. As defendant urges, jurors

who are firmly opposed to the death penalty are qualified to serve if they “state

clearly that they are willing to temporarily set aside their own beliefs in deference

to the rule of law.” (Lockhart v. McCree, supra, 476 U.S. at p. 176; see also

People v. Wilson, supra, 44 Cal.4th at pp. 785-786).) Prospective Juror B.S. did

not make such a statement, however. Indeed, she said on five occasions that she

was “strongly” or “very strongly” opposed to the death penalty, and confirmed

that she believed “philosophically” that capital punishment “serves no useful

purpose” and “makes killers out of us.” In the absence of a clear indication that

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she was willing to set aside those views and apply the law, the trial court

legitimately took into account her insistent, repeated, and forcefully worded

references to her strong opposition to the death penalty when it considered the

equivocal nature of some of her responses. (See People v. Hamilton, supra, 45

Cal.4th at p. 891 [trial court referred to the excused juror as “a man of pretty

strong convictions” who did not wish to appear closed minded but who would, in

actuality, always vote against the penalty of death]; People v. Avila (2007) 38

Cal.4th 491, 531 [referring to jurors‟ having disclosed views against the death

penalty “so strong as to disqualify them for duty on a death penalty case”]; see

also United States v. Fell (2d Cir. 2008) 531 F.3d 197, 213.)

Defendant also points to statements made by the prospective juror

indicating she was not opposed to imposition of the death penalty in every case,

contending these established her qualification to serve. The court legitimately

could view these statements, however, as in tension with her view that a vote in

favor of the penalty of death would serve no purpose and would render the

prospective juror a killer. (See People v. DePriest, supra, 42 Cal.4th at pp. 21-22;

see also People v. Salcido (2007) 44 Cal.4th 93, 133.) When a prospective juror

has made statements that tend to support the trial court‟s conclusion that the juror

is not qualified, “[t]he fact that [the juror] also gave statements that might have

warranted keeping [her] as [a juror] does not change [the] conclusion” that

substantial evidence supports the trial court‟s ruling. (People v. Thornton (2007)

41 Cal.4th 391, 414.)

The trial court was justified in concluding that the prospective juror‟s

responses, rather than suggesting she could set aside her own personal views,

constituted merely a grudging acknowledgment that those views might include

some narrow exception — or at least an abstract possibility she would consider the

statutory penalty of death. But the mere theoretical possibility that a prospective

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juror might be able to reach a verdict of death in some case does not necessarily

render the dismissal of the juror an abuse of discretion. (People v. Wharton (1991)

53 Cal.3d 522, 588-589; see also People v. Lancaster (2007) 41 Cal.4th 50, 80.)

Excusal for cause is not limited to a juror who “ „zealously opposes or supports the

death penalty in every case.‟ ” (People v. Riggs (2008) 44 Cal.4th 248, 282.)

Defendant, objecting that the trial court employed an incorrect standard,

asserts the court failed to understand that a person who is opposed to the death

penalty nevertheless may be qualified to serve. Defendant contends the

prospective juror‟s responses merely demonstrated she had a high threshold for

imposing the death penalty — a circumstance we acknowledge does not

necessarily mean the juror is substantially impaired within the meaning of Witt,

supra, 469 U.S. 412. (People v. Stewart, supra, 33 Cal.4th at p. 447; People v.

Kaurish, supra, 52 Cal.3d at p. 699.)

We are not persuaded. The court did not limit its inquiry to whether B.S.

was opposed to the death penalty. Rather, the court correctly enunciated the Witt

standard and inquired of B.S. and other prospective jurors whether there was a

realistic, practical possibility the juror could consider either penalty option — a

formulation we have concluded satisfies the standard set forth by the high court in

Witt. (People v. Mason (1991) 52 Cal.3d 909, 954; see also People v. Lancaster,

supra, 41 Cal.4th at p. 80.)

Defendant counters that the trial court must have employed an erroneous

standard, because it believed B.S.‟s views concerning capital punishment were

“far stronger, far more compelling than any of the answers that the Supreme Court

reviewed and upheld as constituting a valid challenge for cause” in People v. Hill,

supra, 3 Cal.4th 959, whereas the jurors in that case stated they “probably” could

not or “didn‟t think” they could, or “would feel uneasy about” imposing the death

penalty. By contrast, defendant points out, B.S. affirmed that there was a

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possibility she could vote for the maximum penalty. Unlike B.S. in the present

case, however, the prospective jurors in the Hill case did not stress their strong

opposition to the death penalty and did not state that the death penalty serves no

purpose and “makes killers out of us” all — a view that cast doubt upon B.S.‟s

claim she could vote to impose the penalty of death in an appropriate case.

In sum, in the circumstances of the present case it is appropriate to defer to

the trial court, which conducted a careful voir dire and was able to observe the

prospective juror‟s demeanor. Substantial evidence supports the trial court‟s

conclusion that Prospective Juror B.S. held views that would render her unable

“ „realistically and honestly‟ ” to give the prosecution “ „a fair hearing and a fair

opportunity to at least persuade [her] to [vote for] the death penalty.‟ ” (People v.

Hamilton, supra, 45 Cal.4th at p. 891; see also People v. DePriest, supra, 42

Cal.4th at p. 22 [jurors properly excused who would experience “extreme

difficulty imposing capital punishment, even in an appropriate case,” and whose

responses and demeanor produced a “ „definite impression that [their] views on the

death penalty would substantially impair the performance of [their] duties‟ ”].)

b. Prospective Juror E.H.

In her response to the juror questionnaire, when asked to describe her

general feelings regarding the death penalty, Prospective Juror E.H. wrote: “I

used to be strictly against it — particularly because it was applied to poor or

minority persons more so than others. Now — I might be able to vote for the

death penalty — if a crime was really, really awful.” She added that her views had

moved from “strongly against” to “moderately against” capital punishment, “based

on hearing of awful crimes and repeat offenders.” Her questionnaire also noted

that she would vote against a ballot measure authorizing the penalty of death,

because “it‟s applied more often to minority and poor” defendants. She

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nonetheless checked the box on the questionnaire indicating that she did not “hold

any religious, moral feelings or philosophical principle that would affect [her]

ability to vote for the death penalty in this case.”

During voir dire, the trial court inquired whether, in light of her views, both

the punishment of death and the punishment of life in prison without the

possibility of parole “are realistically available to you?” E.H. responded in the

affirmative, explaining: “I just mean because there are the two choices, I‟m more

inclined to go for life [in prison] without [the possibility of parole], instead of the

death penalty, but there could be situations where I could vote for the death

penalty.”

The court inquired whether in “the situations that you are contemplating,

are they the kind of thing that you would call realistic and practical possibilities, or

do you think they fall into the category of something that is theoretically available

but not really realistic, practical, common sense.” E.H. responded: “No I think

they‟re realistic for a . . . crime or crimes that were — had such aggravating, is

that the word, circumstances.”

Under questioning by the prosecutor, E.H. acknowledged that she was

philosophically opposed to the death penalty and that if the choice were hers, the

state would not authorize capital punishment.

The prosecutor asked in what circumstances E.H. envisioned being able to

impose a sentence of death, and she responded: “I guess it would be . . . if there

were lots of people killed . . . I guess if you can‟t take into account someone‟s

previous history, so I guess you‟re just looking at the current case, so I guess it

would be just how awful . . . the current situation was.”

The prosecutor stated: “The nature of the case that we have here does not

fit what you‟ve described. So I ask . . . is this one that raises its level . . . to really,

really awful, where you could consider imposing the death penalty?” E.H.

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responded that “[i]t might.” She agreed when the prosecutor added, “you‟ve told

me that you haven‟t thought too much about it because it‟s unpleasant to you.”

When asked whether she could impose the ultimate penalty, she replied: “I‟d have

to . . . hear the case. I didn‟t want to think about it in the abstract.”

The prosecutor explained that “in order for the punishment of the death

penalty being realistic for a — juror, they have to actually be capable of voting to

end another person‟s life. And if they can‟t do that, if they couldn‟t bring

themselves to do that because they couldn‟t live with themselves, or for any

number of reasons, then the reality is that the death penalty isn‟t an option for

them because they couldn‟t actually vote for it, no matter what [t]he evidence was.

[¶] So I ask . . . knowing yourself and given your philosophical base, and that you

oppose the death penalty and don‟t think we should have death penalty on the

books, do you really believe that you could actually vote to end the life of another

person?”

E.H. responded: “Depending on the facts of the case, that‟s a possibility

that I could.” The prosecutor inquired what facts she was referring to, and E.H.

responded: “It just seems strange to discuss this because we‟re discussing the end

of the case, and we haven‟t even . . . heard the evidence.”

The prosecutor explained that just as the law provides that the jury in a

capital case should not be composed of persons who automatically would vote in

favor of death for all murders, the law also provides that the jury should not be

composed of persons who never could vote for the death penalty because

“realistically, the option of the death penalty doesn‟t exist for them. [¶] But if we

don‟t ask these questions, we can‟t get to those people to confront the issue as to

whether this is something that they could actually do.”

The prosecutor noted E.H.‟s emotional state, asking: “Now, does that upset

you? I get a sense that this is very, very uncomfortable for you, and you know,

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it[‟s] very . . . irritating.” E.H. confirmed that the prosecutor‟s observation

concerning her emotional state was correct.

The prosecutor remarked further on the prospective juror‟s apparent unease

during voir dire: “And the idea of being in the situation of being asked, could I

actually vote to kill another human being, given the fact that you don‟t think we

should have a death penalty, sort of makes the situation even more

uncomfortable?” E.H. answered in the affirmative. The prosecutor inquired

whether “realistically, is this an appropriate case for you . . . given your attitudes

and your feelings about the death penalty?”

E.H. responded that she “probably” did not agree “with the philosophy that

people that are opposed to the death penalty . . . should be excluded from the case.

But I think, besides that, that given the case, that I would consider the case, and

there is a possibility I could vote for the death penalty in certain cases.” She

confirmed that she had “strong feelings” against the rule that a person who could

never impose the death penalty should be excluded from a capital jury.

The prosecutor asked whether E.H. believed that capital punishment is

“applied more often to minorities and the poor,” and she confirmed she held that

belief, and that it applied to persons of Hispanic background such as defendant.

She nevertheless averred that she could vote to impose the death penalty on a

member of a minority group, explaining that “each case is different, [and] . . . if

the facts warranted it, I could vote for the death penalty.”

The prosecutor pursued the topic of the influence of the juror‟s views on

her performance of her duties in the present case, stating: “When you say it is

possible, I mean you‟re an educated woman, the court didn‟t haphazardly choose

the words, a realistic possibility. Given your attitude against, your opposition to

the death penalty, that we shouldn‟t have it on the books, your attitude that people

who oppose the death penalty shouldn‟t be excluded from death-penalty juries,

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your long-held position that minorities and the poor are more frequently recipients

of the death penalty than other folks, is it truly realistic now that you would ever

actually vote to impose the death penalty, honestly?”

E.H. responded: “Well, it‟s a small percentage, but it‟s in the realm of

possibility.” The prosecutor replied: “We‟re not talking about remote

possibilities. We‟re talking about practical application. [¶] Can you sit there and

honestly tell me, ma‟am, that you would vote to end his life realistically?” E.H.

answered: “It sounds like you and I define realistically differently.”

After the prosecutor moved to challenge E.H. for cause, the court posed

additional questions, and E.H. explained her view that persons who never would

vote for a sentence of death should be permitted to serve on capital juries. She

stated: “I think the full range of possibilities should be allowed, particularly if —

when you get to the penalty phase, it isn‟t automatic that it‟s the death penalty,

that there are two choices, that you should have the full range of the community‟s

input.”

The court then inquired whether, if a prospective juror informed the court

he or she never could impose the death penalty, the juror should be permitted to

serve on the jury, and she responded that if she were a legislator, that would be her

position.

The court pointed out that the result of such a position would be that the

jury never would be able to impose a sentence of death. E.H. responded that

perhaps the juror who was a death penalty opponent would “get changed or

swayed by the actual situation.”

The court continued: “I‟m certainly not trying to argue with you, nor am I

trying to put words in your mouth or tilt this out of context, but it‟s that kind of

response . . . sounds like there might be an agenda here, an agenda to achieve

some social or political end. And I‟m concerned about that. If I‟m wrong, please

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tell me. And I may very well be wrong.” (Italics added.) E.H. declared that the

court was in error, adding, “I‟m just trying to be as candid about where I am, and

I‟m not coming with a hidden agenda, and I have thought about things, and

realistically, if I had to put a number on it, it would be like, say 10 percent

possibility I could vote for the death penalty.”

In ruling upon the prosecutor‟s challenge, the trial court expressed its

concern that Prospective Juror E.H. had “an agenda,” also referring to E.H.‟s

belief that persons who never would impose the death penalty should be permitted

to serve as jurors in capital cases. E.H.‟s opinion on this point emerged in the

questioning during which E.H., evidently through her demeanor, displayed signs

that she was “upset” and “irritated.” The court added: “Although agenda is too

strong a word for [E.H.]. I don‟t believe she is lying here. I don‟t believe she

came into court to thwart the process. But I am very concerned with any [juror]

who will state in an unequivocal way that she . . . disapprove[s] of a law that

would allow the court to excuse someone who is emphatically opposed to the

death penalty in all circumstances and wouldn‟t vote for it, no matter what the

evidence showed at a penalty trial,” pointing out that such a juror inevitably would

prevent the imposition of the death penalty. According to the court, E.H.‟s view

that such a law concerning jury selection is improper — when combined with

other circumstances that the court acknowledged separately would not be grounds

for challenge, such as her “moderate” opposition to the death penalty and her view

it was imposed more frequently on minorities and the poor — gave the court the

“definite impression that she would be unable to faithfully and impartially apply

the law.”

Reviewing the cold record with the appropriate level of deference, we

conclude that the trial court did not abuse its discretion. Again, this court has

reviewed the full transcript of the extensive voir dire of E.H., and is impressed

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with the court‟s care and thoughtfulness. The court stated the correct standard and

acknowledged that persons who are opposed to the death penalty may not be

excused for that reason alone. In addition, the court evidently was sensitive to the

demeanor of the jurors. (See pp. 53, 55, 56, post.) The record reflects that E.H.

displayed visible emotion when challenged concerning her ability to consider

imposing the death penalty, as well as when she learned that the law permitted the

exclusion of prospective jurors who were unalterably opposed to the death penalty.

She characterized herself as strongly opposed to the latter rule. Although the court

rejected the notion that E.H. had committed perjury during voir dire, she evidently

gave the court the impression that, even if she did not have a precise “agenda,” her

attitude toward the process of imposing punishment was far from open minded.

Like Prospective Juror B.S., E.H. acknowledged there was merely a small

possibility she ever could vote in favor of a verdict of death. Moreover, as with

B.S., the record supports the inference that E.H. was resistant to the prosecutor‟s

efforts to probe her willingness to return such a verdict. Also, like B.S., E.H. did

not suggest she could put aside her own views concerning the death penalty and

participate in the trial purely on the basis of the law under which she was

instructed. Rather than deferring to existing law, the prospective juror offered

merely a small possibility that her own scruples would permit her to reach a

verdict of death for an especially heinous crime. The court could infer she would

be unable to afford the prosecution “ „a fair hearing and a fair opportunity to at

least persuade [her] to [vote for] the death penalty.‟ ” (People v. Hamilton, supra,

45 Cal.4th at p. 891.)

Defendant seizes upon the court‟s reference to E.H.‟s opposition to the

death penalty, relying upon the rule that we have acknowledged above that firm

opposition to the death penalty does not disqualify jurors who clearly state a

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willingness to “set aside their own beliefs in deference to the rule of law.”

(Lockhart v. McCree, supra, 476 U.S. at p. 176.)

Examining the voir dire of Prospective Juror E.H. as a whole, and applying

the appropriate deferential standard, we conclude that this juror was not excused

simply because of her opposition to the death penalty. The trial court in the

present case referred to a number of circumstances it believed combined to

disqualify her, including her views on the composition of capital juries and on the

application of the death penalty to members of ethnic minorities. As noted, E.H.

also displayed visible emotion during the prosecutor‟s questioning, a circumstance

that supports the trial court‟s evaluation of her demeanor. She agreed with the

prosecutor‟s characterization of her as upset, uncomfortable, and irritated by

questioning on a topic considered significant by the trial court, namely the juror‟s

view that persons unalterably opposed to the death penalty should be permitted to

serve on capital juries. The trial court was concerned that Prospective Juror E.H.

had, if not exactly “an agenda,” at least a combination of views that would, despite

the potential juror‟s evident good faith, substantially impair her ability to abide by

her oath as a juror. In distinguishing the present case from those in which a trial

court has excused a potential juror simply because of the individual‟s opposition to

the death penalty, we also observe that it is significant the trial court stated it

understood that a juror who is opposed to the death penalty cannot properly be

excused for cause for this reason alone.

The United States Supreme Court has counseled reviewing courts to afford

considerable deference to the trial court‟s impressions concerning the ability of a

prospective juror to serve on a capital case. (Uttecht v. Brown, supra, 551 U.S. at

pp. 7-9.) As the high court commented in Uttecht, the trial court is in the best

position to view the juror‟s demeanor and to give weight to the juror‟s body

language, demeanor, and attitude. We defer to the trial court‟s superior ability to

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assess the prospective juror‟s demeanor and, in view of all the circumstances,

conclude that substantial evidence supports the trial court‟s conclusion that this

prospective juror‟s views would prevent or substantially impair her ability to

perform her duties according to the law.

Accordingly, we reject defendant‟s claim that the trial court improperly

excused Prospective Jurors B.S. and E.H. for cause.

3. Asserted unfairness in the application of the Witt standard

Defendant contends the trial court applied a stricter standard to prospective

jurors who disfavored the death penalty than the court applied to prospective

jurors who favored that penalty. Defendant describes the trial court‟s asserted

standard as follows: “For pro-death jurors, the standard was: a pro-death juror is

qualified if he or she makes a commitment to listen to mitigating evidence and

consider life [in prison] without parole as a possible sentence, regardless of the

strength of his or her general feelings about the need to impose the death penalty.

. . . For pro-life jurors, the standard was that a pro-life juror is disqualified if he or

she not only makes a commitment to listen to the evidence and consider a death

verdict as a realistic possibility, but also has general philosophical views which the

trial judge views as not too strong.”

Defendant also claims the trial court displayed a bias in favor of

prospective jurors who supported the death penalty, using its “power to question

prospective jurors disparately to ask favorable, rehabilitating questions to pro-

death jurors and hostile, disqualifying questions to pro-life jurors.” Defendant

summarizes: “The point here is not that it was in any way improper for the trial

judge to attempt to rehabilitate pro-death jurors. The point is that the judge took

no similar steps to rehabilitate pro-life jurors. [Indeed] [t]he court‟s brief

questioning of [B.S.] was framed to elicit disqualifying answers.”

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Defendant claims that the actions of the trial court violated his federal

constitutional guarantees of due process of law, trial before an impartial jury, and

equal protection of the laws. He contends that the trial court‟s asserted bias should

cause this court to withdraw any deference otherwise owed to the trial court‟s

conclusions concerning the challenges to Prospective Jurors B.S. and E.H. 8

Defendant‟s argument rests upon the record of the voir dire of three

persons, two of whom ultimately did not serve as jurors, and one of whom served

only as an alternate but was not called upon to deliberate. Defendant places

principal reliance upon the examination of Prospective Juror D.F., as to whom the

court denied a defense challenge for cause. Defendant claims D.F. was less

qualified to serve than either B.S. or E.H.

In questioning D.F., as in its questioning of B.S. and E.H., the court

attempted to ascertain whether both punishment options were realistic and

8

Respondent contends defendant‟s claim that the trial court employed

different standards for the two types of jurors and exhibited bias in its questioning
is forfeited because it was not raised below. Although we previously have
determined that a claim that the trial court committed misconduct during its voir
dire examination — for instance, by assertedly posing questions implying the
court believed the defendant to be guilty — is forfeited if not raised at trial
(People v. Seaton (2001) 26 Cal.4th 598, 635; see also People v. Heard, supra, 31
Cal.4th at p. 958, fn. 8; People v. Freeman (1994) 8 Cal.4th 450, 487), the issue in
the present case appears to be somewhat different. Defendant claims that the
responses of the other jurors, along with the court‟s asserted lack of
evenhandedness, demonstrate that the court erred in applying the Witt standard to
B.S. and E.H. We reached the merits of similar claims in People v. Thornton,
supra, 41 Cal.4th 391. In addition, during an examination discussed post, at pages
55-56, defense counsel did compare his own belief that the prospective juror had a
pro-death “agenda” with earlier questioning that, he noted, had been regarded by
the trial court as having disclosed an anti-death-penalty agenda on the part of
another prospective juror, and in response the trial court considered whether it had
been evenhanded. (See pp. 56-57, post.)

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practical possibilities in the mind of the juror — as opposed to being foreclosed by

personal views. The court stated: “It‟s not enough that they might both be

theoretically available or hypothetically available, we‟re interested to know if they

are both in realistic practical terms available to choose from . . . depending entirely

on what the evidence showed that juror and how that juror evaluated that

evidence.”

Prospective Juror D.F. responded that both punishment options were open

to him. Although he “leaned” toward the death penalty, he also referred to the

need to hear all the evidence and agreed that the lesser punishment would be a

practical possibility for him. He was cautious concerning his ability to reach a

decision to impose the death penalty, stating: “It would be very definitely a very

big decision, a very tough decision, but I think if I heard enough facts that sounded

something very severe, I think I could do it.” The prosecutor identified the

charges in the present case and described the process of lethal injection, asking

whether D.F. actually could supply the 12th vote to impose a sentence of death

upon defendant. D.F. responded: “To be honest I don‟t really know unless the

time came, but I would think if I truly thought, you know, that these criteria were

met, I think I could. But yeah, to be honest until that time happens I don‟t know.”

D.F. added, “I could reasonably vote for the death penalty, I could

reasonably vote for life without parole, even though I have a leaning.” The

prosecutor asked whether D.F. fell into the automatic-vote-for-death category or

the leaning-toward-death category. D.F. stated: “I would think I would wait until I

hear all the evidence before I truly made up my mind one way or the other. I may

be leaning but yeah, I would still want to hear all the evidence.” On a scale of one

to 10, D.F. explained he was an “eight-and-a half” in support of the death penalty.

Defendant suggests D.F.‟s further responses under defense questioning also

disclosed he was less qualified to serve than B.S. or E.H., and defendant asserts

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that the court‟s failure to excuse D.F. supports defendant‟s claim the court applied

a different standard to the two categories of prospective jurors. D.F. agreed that it

was possible he could vote for life imprisonment, stating, “I would definitely be

leaning towards death, but possibly.” He continued: “Probably if I had to really

think more in depth about what possibility would lead me to vote for life in prison

without the possibility of parole, I probably couldn‟t come up with any examples.

It probably would have to be something really fairly substantial which I can‟t even

think of to lean towards the other sentence.” He added: “It‟s really tough without

knowing everything else but just from that sound alone I don‟t think I could. I

would definitely lean towards [the] death penalty.” Defense counsel pursued the

point: “Well, lean towards is not close my mind, right?” D.F. responded: “Yeah,

well to say yeah, I would vote for the death penalty in those circumstances without

knowing anything else about the case.”

D.F. agreed with defense counsel that “there‟s no information to which [he]

would foreclose [himself],” but when defense counsel inquired whether if the

charges were proven, a verdict of death would be a foregone conclusion, D.F.

responded: “From the sound of it now, from just the little I know, I would

undoubtedly be leaning that way, yeah. It would be a foregone conclusion. I can‟t

think of anything that would change my mind to think that would not be the right

punishment.”

D.F. further acknowledged that in his response to the questionnaire, he

stated the penalty should be based upon the nature of the crime, not the evidence

in mitigation. Defense counsel inquired: “So no matter how much good we

showed you about someone who did murder and murder in the course of child

molest, you would always vote for the death penalty?” D.F. responded: “Yeah, I

would agree with that. I would think I would think in these terms without — it

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wouldn‟t matter what this other stuff was about; what you are saying I think, yes, I

would vote for the death penalty.”

The court thereafter posed supplemental questions, and defense counsel

subsequently conceded that if the court relied upon D.F.‟s response to these

supplemental questions, there would not be a basis for a challenge for cause. On

appeal, however, defendant claims the court purposefully rehabilitated D.F., but

refrained from similar rehabilitative questioning of Prospective Jurors B.S. and

E.H., thereby assertedly demonstrating bias in its decision to excuse the latter

prospective jurors.

In its supplemental questions, the court explained the meaning of mitigating

and aggravating evidence and other matters peculiar to the penalty phase. The

court inquired of D.F. whether he believed that if the defendant was guilty of

murder and murder in connection with a child molestation, “there is no mitigating

circumstance — which would be defined as not constituting a justification or

excuse for the crime in question, but which could be considered as an extenuating

circumstance in determining the appropriateness of the death penalty — there is no

such mitigating evidence that would be sufficient for you to . . . vote for anything

but the death penalty?” D.F. responded: “Not that I can think of. It‟s really tough

without hearing it, but hearing these crimes, yeah, I would answer I can‟t think of

anything else and I can‟t imagine not voting for the death penalty.”

The court responded that it recognized it was difficult to decide the matter

in the abstract. But, the court asked, assuming there was some evidence in

mitigation, “would you still be receptive to listening to that evidence? And when I

say listen to it having as a possibility, something more than just theory, but a

practical possibility that it might sway, it might convince you that . . . you might

still evaluate the case as one where . . . life in prison is appropriate?” D.F.

responded: “Possibly, but . . . I have a real hard time because I don‟t know what it

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can be, yeah, but if there was something out there that definitely could, there was

some sort of extenuating circumstance I would definitely be willing to listen to it.”

The court inquired whether D.F. not only could listen, “but there is a part of your

mental process reserved for choosing either penalty option or do you think the

listening is simply a formality, but that your mind could not be swayed?” D.F.

responded: “No, if those mitigating circumstances were there, something

substantive like how I could change my mind, yeah, then I could be swayed.”

Defense counsel moved to excuse D.F. for cause, although he offered a

concession that D.F.‟s answers to the court‟s supplemental questions made it “real

clear to me that those questions of the court undermine my challenge for cause.

And that my challenge for cause is appropriate only if your honor is willing to

draw the inference that this juror was being more revealing of his true state of

mind when he said he „can‟t imagine not voting for the death penalty‟ [than] in his

direct response to the court‟s question.”

The court denied the challenge, stating: “I‟m couching my ruling not only

on the discussion I had earlier which I will incorporate, but I did ask him

supplementary questions and, you know, I think the supplemental questions that I

asked have indicate[d] that while he may be leaning towards the death penalty

based on hypothetical questions being asked in this case by [the prosecutor], I

don‟t believe he has foreclosed the possibility and I judge him from looking at his

demeanor and listening to the way in which he answers questions. In watching

him I don‟t believe he has foreclosed a realistic and practical possibility that he

could impose either punishment.” (Italics added.) The court explained further that

lay persons naturally cannot imagine the nature of mitigating evidence, and the

court posited this was why D.F. stated he could not imagine voting for any

sentence other than death. The court observed that it “will excuse if it has a

definite impression that the juror‟s views prevent or substantially impair the

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performance of his duties in according with the instructions of his oath . . . and

that involves a lot of subjective decisions . . . on the part of the trial judge.”

On appeal, defendant also refers to the questioning of Prospective

Juror 16.9 The court overruled the defense challenge for cause as to this

prospective juror, who ultimately served as an alternate but was not called upon to

deliberate.

In her questionnaire, Prospective Juror 16 indicated support for capital

punishment, a belief that capital punishment serves as a deterrent, and an

assumption that a person found guilty of murder deserves the penalty of death.

During voir dire, the court inquired whether she believed that only the

death penalty would be appropriate for the crime of murder. The prospective juror

responded: “Not necessarily. I‟ve been thinking a lot after filling this out. It

would all depend on, you know, my impression [of] whatever we heard as a juror.

The — I‟m an honest and truthful person, and I think that if I felt that that was

what the person deserved, then that‟s the way I would vote, but if there was any

doubt, then I wouldn‟t.” The court asked whether, even if she found defendant

guilty of murder and found the special circumstance true, “are you saying that

there would still be a reasonable, realistic possibility that, despite what you‟ve said

here and what you feel, you could vote for life in prison?” The prospective juror

answered: “As you said, you have to balance it out and — whatever the

information is, then you would have to balance it truthfully or honestly and decide

if you felt that what the circumstances were warranted it or not. It could go either

way.”


9

Some of the prospective jurors evidently were addressed by name, whereas

some were addressed by number.

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The court responded that its initial impression of the prospective juror was

that she would not be able to consider any penalty but death if the murder and

special circumstance were proven, and the court suggested: “I thought maybe that

might be your frame of mind.” The prospective juror responded: “Not

necessarily,” again confirming that both penalties were a realistic and practical

possible choice for her.

In response to the prosecution‟s questions, Prospective Juror 16 stated it

would be difficult and emotional for her to make a decision to impose the death

penalty, but she believed she could reach such a decision. She acknowledged she

had strong feelings concerning crimes against children, but stated she would be

capable of listening and making up her own mind concerning penalty, and would

“not necessarily” vote for death. She rated herself as a 7 out of 10 in terms of her

support for capital punishment.

When the defense inquired whether she always would vote for the death

penalty in cases involving child molestation, she responded: “I find that hard to

say, just to say yes. Then you‟re saying, you know, that I‟ve made up my mind.”

She repeated that she could vote for either penalty, depending upon the evidence.

Defense counsel inquired whether she believed prison constituted an adequate

penalty, and she equivocated, characterizing some prisons as resembling “Club

Med.” Again, she informed counsel that she found it difficult to predict her vote

when she was unaware of the circumstances of the case, and never had

participated in a capital trial. She reminded counsel that jurors are instructed to

approach the evidence with an open mind, but that he was asking her to admit “it

is in cement that I would vote for the death penalty. And I say I don‟t know.” She

stated she would give defendant a fair hearing.

Defense counsel moved to excuse the juror, referring to her manner and to

defense counsel‟s belief that she “had an agenda.” Counsel stated: “It just looks

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that way to me as firmly as it looked that other people have had an agenda for the

defense.”

The court acknowledged that demeanor was important to its determination,

and invited defense counsel to explain aspects of the prospective juror‟s demeanor

that suggested an “agenda.” Defense counsel responded that the prospective

juror‟s answer referring to some prisons as resembling “Club Med” indicated a

view that prison did not constitute severe punishment, and counsel also referred to

“the various relatively lengthy pauses that she had at one point or another.”

Defense counsel expressed disbelief in the juror‟s claim that she had softened her

views since the time she completed the juror questionnaire.

The court observed that it had been “sensitive to jurors who might be

perceived to have an agenda,” adding it did not believe Prospective Juror 16

“wants to get on this jury to achieve some goal.” The court stated its view that the

prospective juror‟s answers to the written questionnaire reflected a person who

“has, for practical purposes, excluded one of the two penalty options.” At the

same time, the court credited the juror‟s claim that she had thought more deeply

concerning capital punishment after completing the questionnaire. The court

noted its view that the juror‟s pauses during questioning arose from the

forcefulness of the defense questioning, and commented it did not believe the

prospective juror was lying.

The court also observed that it had reflected upon whether it was “being

consistent with myself in this analysis, and I think I am.” The court added: “I‟m

very sensitive to . . . such things as body language, unspoken pauses . . . . But I

don‟t see those things in her spoken words or unspoken communications as

indicating she can‟t serve.” The court denied the defense challenge.

The court subsequently set aside its decision denying the defense challenge,

expressing the concern that it should not have compared Prospective Juror 16 to

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other prospective jurors, and also noting that at one point the court had interjected

an unfounded criticism of defense counsel (for suggesting the court had directed

the juror to change her views).

When the court reconsidered the challenge (ultimately overruling it again),

it stated that the juror‟s questionnaire in isolation would disqualify her, but that her

answers to the court‟s and counsel‟s questions reflected she had thought deeply

about the matter after completing the questionnaire. The court added that it

believed her “post-questionnaire conversion” was sincere and genuine. The court

noted that it had “looked at her demeanor, . . . watched and listened to the pauses,

and tried to see whether or not they reflected . . . intent to deceive . . . us or

deceive herself. [¶] I didn‟t read it that way. I really did not.” As noted, the court

then again overruled the defense challenge for cause as to this juror, allowing her

to serve (as an alternate).

Defendant also refers briefly to the court‟s questioning of Prospective Juror

A.S., who supported the death penalty “for an offense as capital as taking a life

unless there are extenuating circumstances.” In response to the court‟s questions

concerning his willingness to consider both penalties, the prospective juror

responded he could consider both penalties, but had “a tough time understanding”

the purpose of life imprisonment for someone who is judged so dangerous he can

never return to society. “Maybe that‟s a narrow-minded thought, but . . . what

would be the evidence that would support life [in prison] without possibility of

parole, but yet wouldn‟t support the death penalty? I guess I‟m a little confused

where the line would be drawn.”

The court expressed “serious concerns” that A.S. might not be able to

return any verdict but death for murder with special circumstances. A.S.

responded that he supported death for murder with special circumstances as an

abstract matter, but “I haven‟t heard everything there is to hear.” As the court had

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done with other jurors, it acknowledged the difficulty of predicting a decision on

the basis of speculation, but asked for the juror‟s best judgment, inquiring: “Given

the fact that you may have leanings towards the death penalty, do you believe that

it is still a realistic and practical possibility that there could be extenuating

evidence, for example presented [at] a penalty phase trial that could nevertheless

convince you that in this particular case life in prison is the appropriate choice?”

The prospective juror conceded it was possible for him to change his mind.

We have considered the questions posed by the court to Prospective Jurors

D.F., 16, and A.S., but reject defendant‟s claim that the court‟s inquiry exhibits

bias or the application of inconsistent standards with respect to Prospective Jurors

B.S. and E.H. Decisions concerning the qualifications of prospective jurors to

serve rest within the “ „wide discretion‟ ” of the trial court, and the manner of the

court‟s conduct of voir dire is “ „seldom disturbed on appeal.‟ ” (People v.

Thornton, supra, 41 Cal.4th at p. 420.) Moreover, the record does not establish

that the court applied different standards to the prospective jurors identified by

defendant, depending upon their attitude toward the death penalty.

The court inquired of each prospective juror whether there was a practical,

realistic possibility that he or she could vote in favor of either penalty verdict.

Moreover, we are not persuaded that Prospective Jurors B.S. and E.H. were so

demonstrably more open minded concerning penalty than Prospective Jurors D.F.,

16, or A.S. that the court must have employed different standards or been

motivated by bias in ruling on the challenges to each juror. Rather, unlike B.S.

and E.H., whose answers supplied a substantial basis for concluding that they

never would vote for the penalty of death, or in any case would not afford the

prosecution a fair hearing and opportunity to persuade them to vote for the penalty

of death, “the death-favorable jurors of whom defendant complains clearly

indicated their ability to consider circumstances in mitigation, to withhold

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judgment upon the question of penalty until the evidence was before them, and

seriously to entertain the option of imposing a sentence of life [in prison] without

possibility of parole.” (People v. Jenkins (2000) 22 Cal.4th 900, 989.)

Additionally, the court‟s statements indicated it was particularly “sensitive” to and

observant of the demeanor of prospective jurors in reaching its conclusion

regarding eligibility for jury service in a capital case, and nothing in the court‟s

conduct of voir dire indicates we should withhold deference to its ability to

evaluate and rely upon the jurors‟ demeanor in making its rulings in this matter.

As for the court‟s asserted efforts to “rehabilitate” Prospective Jurors D.F.,

16, and A.S., and the claim these efforts disclosed bias on the part of the court, we

ordinarily defer to the court‟s determination that a prospective juror‟s answers

require clarification. Although the prospective jurors challenged by the defense

and identified on appeal initially may have appeared unable to be fair to defendant,

after questioning the court legitimately was satisfied that they were eligible to

serve. As in People v. Thornton, supra, 41 Cal.4th 391, “it is evident that the

court found it necessary to ask the prospective juror[s] questions to reach a

decision about [them], and doing so worked no unfairness to defendant.” (Id. at

p. 422.) And as we commented in that decision, “[w]e see nothing improper in the

court‟s explaining the law to the prospective juror, nor in its failing to engage in a

similar dialogue with other prospective jurors whose voir dire did not give rise to

the same concerns . . . .” (Ibid.)

Although trial courts “ „should be evenhanded in their questions to

prospective jurors during the “death-qualification” portion of the voir dire,‟ ” on

appeal “[a] reviewing court should not require a trial court‟s questioning of each

prospective juror in the Witherspoon-Witt context ( . . . Witherspoon v. Illinois

(1968) 391 U.S. 510) to be similar in each case in which the court has questions,

lest the court feel compelled to conduct a needlessly broad voir dire, receiving

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answers to questions it does not need to ask.” (People v. Thornton, supra, 41

Cal.4th at p. 425.)

We observe finally that defendant supplied three examples of asserted

rehabilitation of persons who generally supported the death penalty, and compared

these examples with the voir dire of two persons who were opposed to the death

penalty. The examination of such a small number of prospective jurors constitutes

an extremely limited sample of the trial court‟s overall performance, thereby

diminishing the probative value of the examples proffered by defendant to support

the inference he would have us draw. More than 150 prospective jurors were

examined concerning their views related to the death penalty, during 15 court days

of voir dire. When considered in this context, and for the reasons explained

above, the examples supplied by defendant fail to establish that the court applied

incorrect or inconsistent standards or followed a practice exhibiting bias against

prospective jurors who opposed the death penalty.

C. Asserted Instructional Error at the Guilt Phase

1. CALJIC No. 2.21.2

Defendant claims the trial court‟s instruction based upon CALJIC No.

2.21.2, concerning the jury‟s consideration of the testimony of a willfully

untruthful witness, violated his constitutional right to due process of law. He

contends the instruction served to shift the burden of proof to defendant and

rendered the verdict unreliable.10


10

The trial court delivered the following instruction based upon CALJIC No.

2.21.2: “A witness, who is willfully false in one material part of his or her
testimony, is to be distrusted in others. You may reject the whole testimony of a
witness who willfully has testified falsely as to a material point, unless, from all
the evidence, you believe the probability of truth favors his or her testimony in
other particulars.” The court already had cautioned the jury that “[d]iscrepancies

(footnote continued on next page)

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Defendant complains specifically of language authorizing the jury “to reject

the whole testimony” of defendant himself if the jury found he willfully testified

falsely on a material point, “unless, from all the evidence, you believe the

probability of truth favors his or her testimony in other particulars.” According to

defendant, this language permitted the jury to reject all of defendant‟s testimony,

even if that testimony raised a reasonable doubt as to some element of the charged

offenses, unless the instruction improperly imposed the burden on defendant of

proving that the “probability of truth favors his or her testimony in other

particulars.”

We have rejected substantially identical attacks upon CALJIC No. 2.21.2

on many occasions, and decline to reconsider our conclusion. (People v. Crew

(2003) 31 Cal.4th 822, 848; People v. Maury (2003) 30 Cal.4th 342, 428-429;

People v. Beardslee (1991) 53 Cal.3d 68, 94-95.) “ „The qualification attacked by

defendant as shifting the burden of proof . . . is merely a statement of the

obvious — that the jury should refrain from rejecting the whole of a witness‟s

testimony if it believes that the probability of truth favors any part of it. [¶] “Thus

[the instruction] does nothing more than explain to a jury one of the tests they may

use in resolving a credibility dispute.” ‟ . . . When [the instruction] is considered in

context with CALJIC Nos. 1.01 (consider instructions as a whole) and 2.90

(burden of proof), „the jury was adequately told to apply CALJIC No. 2.21.2 “only

as part of the process of determining whether the prosecution had met its


(footnote continued from previous page)

in a witness‟ testimony or between his or her testimony and that of others, if there
were any, do not necessarily mean that the witness should be discredited,” and that
“[w]hether a discrepancy pertains to a fact of importance or only to a trivial detail
should be considered in weighing its significance.” (See CALJIC No. 2.21.1.)

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fundamental burden of proving [defendant‟s] guilt beyond a reasonable doubt.” ‟ ”

(People v. Maury, supra, 30 Cal.4th at pp. 428-429.)

Defendant contends the burden-shifting effect he detects in the pattern

instruction was exacerbated in the present case by the prosecutor‟s closing

argument. In our view, however, that argument does not provide a basis for

distinguishing the present case from the cases cited above.

The prosecutor discussed various aspects of the evidence presented by the

prosecution that cast doubt upon defendant‟s testimony that he killed White during

an altercation but had no contact with Tara. The prosecutor carefully reviewed

each element of defendant‟s testimony and suggested that defendant willfully

fabricated numerous aspects of that testimony to rebut the inculpatory evidence

presented by the prosecution. The prosecutor directed the jury to consider the

instruction concerning untruthful witnesses. He paraphrased CALJIC No. 2.21.2,

stating: “A witness willfully false in one material part of his testimony is to be

distrusted in others. You may reject the whole testimony . . . if [he] willfully

testified falsely as to a material fact. Reject everything he said. Unless from all

the evidence you believe the probability of the truth favors his testimony in other

particulars.”

The prosecutor continued: “In other words, you can reject all his testimony

if he testified falsely as to a material fact, and you‟re to distrust everything else he

has to say. And the only time you can accept anything he has to say as true after

you have caught him in a lie on a material issue, is if all the other evidence, not his

testimony, but all the other evidence goes to show the probability that what he said

is true. And you don‟t have that here because all the other evidence points in the

opposite direction, of complete falsehood and lies by him.” (Italics added.) The

prosecutor then specifically acknowledged the People‟s burden of proof: “What

has to be established by the evidence, what I have to do is to prove beyond a

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reasonable doubt that these crimes have been committed and that he did it. And

you‟ve heard for the last two hours . . . that that evidence proves beyond a

reasonable doubt that he did it and that he committed these crimes.”

Defendant contends it is reasonably probable this argument misled the jury

into shifting the burden of proof. We disagree. It is highly unlikely that the

prosecutor‟s argument persuaded the jury to ignore defendant‟s entire testimony,

because much of that testimony was inculpatory and supported the case against

defendant for the murder of White. (See People v. Beardslee, supra, 53 Cal.3d at

pp. 94-95.) Moreover, the jury was directed to follow the instructions on the law

as given to it by the court, and to disregard any contrary statements by counsel.

The instruction given to the jury “at no point require[d] the jury to reject any

testimony; it simply state[d] circumstances under which it may do so.” (Id. at p.

95.)

2. Consciousness of guilt instructions

Defendant contends that the court committed error by delivering pattern

instructions permitting the jury to infer consciousness of guilt from defendant‟s

attempt to persuade a witness to provide false evidence, or from evidence of his

flight from the crime scene. (See CALJIC Nos. 2.04, 2.52.)11 He argues that in


11

The court delivered the following instruction based upon CALJIC No. 2.04:

“If you find that the defendant attempted to or did persuade a witness to provide
false evidence, such conduct may be considered by you as a circumstance tending
to show a consciousness of guilt. However, such conduct is not sufficient by itself
to prove guilt, and its weight and significance, if any, are matters for your
determination.” The court also delivered the following instruction based upon
CALJIC No. 2.52: “The flight of a person immediately after the commission of a
crime, or after he is accused of a crime, is not sufficient in itself to establish his
guilt; but is a fact which, if proved, may be considered by you in the light of all
other proved facts in deciding the question of his guilt or innocence. The weight
to which such circumstance is entitled is a matter for the jury to determine.”

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cases in which a defendant has admitted his identity as the perpetrator of a crime,

the instructions “invite the jury to use evidence whose only rational use is to

determine the identity of a perpetrator for an irrational purpose — as evidence that

other elements of the crime[ had] been established.”

We have rejected this argument in prior decisions, and defendant proffers

no persuasive basis for reconsideration. (See People v. Zambrano (2007) 41

Cal.4th 1082, 1159-1160, disapproved on other grounds in People v. Doolin,

supra, 45 Cal.4th at p. 421, fn. 22, and cases cited; People v. Jackson (1996) 13

Cal.4th 1164, 1224.) Contrary to defendant‟s claims, the instructions do not

suggest that evidence of a defendant‟s consciousness of guilt serves to support an

inference of the existence of a particular mental state or degree of culpability.

(People v. Jackson, supra, 13 Cal.4th at p. 1224.) “[W]e have repeatedly rejected

the argument that instructions on consciousness of guilt, including instructions

regarding the defendant‟s flight following the crime, permit the jury to draw

impermissible inferences about the defendant‟s mental state, or are otherwise

inappropriate where mental state, not identity, is the principal disputed issue.”

(People v. Zambrano, supra, 41 Cal.4th at p. 1160.)

D. Appellate Counsel’s Access to Tara’s Juvenile Dependency Case

File

Prior to the preliminary hearing and almost six years prior to the trial, the

defense requested to inspect Tara‟s juvenile dependency case file. The request

was granted in part. On appeal, defendant‟s counsel sought full access to the

undisclosed portions of the confidential juvenile file, both through his briefing and

through a separate request for an order granting him access. Appellate counsel

asserted in his request and in his opening brief that denying him unrestricted

access to the file would violate defendant‟s rights to fundamental fairness, due

process of law, confrontation, and a reliable penalty determination within the

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meaning of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United

States Constitution. Defendant contends that, should we deny appellate counsel

further access to the juvenile file, this court must review the file to determine

whether the trial court erred in failing to afford the defense access to material

information contained therein.

As we shall explain, defendant is not entitled to inspect the undisclosed

portion of Tara‟s juvenile file. We have reviewed the undisclosed portion of the

file and conclude it did not contain material evidence.

1. Background

At the time of the charged crimes, Tara was under the supervision of the

juvenile court as a result of sexual abuse by several men. In 1991, prior to the

preliminary hearing, the defense moved in the juvenile court to inspect her file on

the theory that Tara‟s credibility would constitute a critical issue at trial. The

motion sought access to materials that indicated “some level of mental

instability, . . . prior sexual knowledge due to a previous unrelated molest[ation],

. . . or a proclivity for telling falsehoods . . . .”

After reviewing the entire file at a hearing conducted on May 31, 1991, the

juvenile court ordered that certain portions of the file be disclosed to the defense,

because they indicated that Tara had been sexually abused in the past and also

were pertinent to the issue of Tara‟s credibility. The juvenile court denied the

request with respect to the remainder of the file. The disclosed material

principally consisted of psychological assessments of Tara that had been

performed at various times between November 1988 and February 1989. In

addition, the court ordered the disclosure of recommendations prepared for a 1989

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detention hearing in the juvenile court and a jurisdictional report dated January 24,

1991.12

The defense filed another motion in the municipal court for inspection of

additional records concerning Tara that were subpoenaed from Stanford

Children‟s Hospital. Tara had undergone residential psychiatric treatment at the

hospital in 1988 and again in 1989, prior to the charged offenses, and had

undergone further residential psychiatric treatment in 1991 following the charged

offenses. The municipal court conducted a hearing, after which it concluded that

the complete records documenting all three periods of psychiatric treatment at

Stanford Children‟s Hospital were to be disclosed to the defense but to be

maintained in the court‟s file under seal.


12

Specifically, the court directed disclosure of a jurisdictional report dated

January 24, 1991; a confidential psychological evaluation prepared by the New
Haven Unified School District dated February 14, 1989; a psychological
assessment report dated January 17, 1989, on the letterhead of Alameda County
Health Care Services; a psychological evaluation dated November 11, 1988, on
the letterhead of Lucile Packard Children‟s Hospital at Stanford (Stanford
Children‟s Hospital); a report, on the letterhead of Stanford Children‟s Hospital,
having an admission date of November 3, 1988, and a discharge date of November
28, 1988; and a document entitled “Recommendation for Order of Detention” in
Tara‟s case, undated, with a handwritten notation concerning a six-month review
with the date of December 20, 1989. The documents that the juvenile court
declined to disclose to the defense were not listed. During record-correction
proceedings, the superior court ordered that the juvenile court file be delivered
under seal to this court. The file as originally sent to us, however, did not contain
the material that was ordered disclosed. After diligent efforts by our clerk‟s office
and the clerk‟s office of the Alameda County Superior Court, the disclosed portion
of the juvenile file was discovered in storage and subsequently was delivered to
this court, rendering the juvenile file complete.

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On September 15, 2004, this court denied defendant‟s request for an order

providing appellate counsel with access to the undisclosed portion of Tara‟s

confidential juvenile court file.

2. Discussion

Our order denying appellate counsel‟s request for access to the undisclosed

portion of the sealed file cited Pennsylvania v. Ritchie (1987) 480 U.S. 39, 59-61,

in support. In that case, the defendant was charged with committing sexual

offenses against his daughter, and sought to examine confidential records

concerning her, compiled by the state child protective services agency in

connection with the alleged abuse. He claimed the file “might contain the names

of favorable witnesses, as well as other, unspecified exculpatory evidence.” (Id. at

p. 44.) The United States Supreme Court determined that the trial court had erred

by denying the request without inspecting the file. The high court reasoned that

the principle of due process of law requires the government to disclose evidence in

its possession that is both “favorable to the accused and material to guilt or

punishment.” (Id. at p. 57.) Because pertinent state statutes provided certain

exceptions to the general rule of confidentiality for the records at issue, including

one applicable when a court of competent jurisdiction orders their disclosure, there

was no absolute bar to disclosure. “In the absence of any apparent state policy to

the contrary, we therefore have no reason to believe that relevant information

would not be disclosed when a court of competent jurisdiction determines that the

information is „material‟ to the defense of the accused.” (Id. at p. 58.)

The high court concluded the defendant was “entitled to have the

[confidential] file reviewed by the trial court to determine whether it contains

information that probably would have changed the outcome of his trial.”

(Pennsylvania v. Ritchie, supra, 480 U.S. at p. 58, italics added.) The court

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emphasized that defense counsel was not entitled to review the entire file to search

for evidence that might have some utility in preparing his case. Using language

that is particularly relevant here, the court stated: “A defendant‟s right to discover

exculpatory evidence does not include the unsupervised authority to search

through the Commonwealth‟s files. [Citations.] Although the eye of an advocate

may be helpful to a defendant in ferreting out information, [citation], this Court

has never held — even in the absence of a statute restricting disclosure — that a

defendant alone may make the determination as to the materiality of the

information. Settled practice is to the contrary. . . . Defense counsel has no

constitutional right to conduct his own search of the State‟s files to argue

relevance. [Citation.]” (Pennsylvania v. Ritchie, supra, 480 U.S. at pp. 59-60, fn.

omitted.)

The juvenile court in the present case followed the rule established in the

Ritchie decision and, pursuant to its authority under Welfare and Institutions Code

section 827, reviewed the entire file to determine whether it contained material

evidence. As noted, several documents from the juvenile court file were disclosed

to the defense.

Defendant contends that Pennsylvania v. Ritchie, supra, 480 U.S. 39, is

inapposite, because it concerned the accused‟s right to pretrial discovery, whereas

defendant‟s claim in the present case is that appellate counsel must be afforded

access to the complete juvenile file for the purpose of determining whether it

contains any information that might be helpful to the defense on appeal.

As has been demonstrated, however, even at trial the defense is not entitled

to review confidential documents to determine which are material for its purposes;

rather, as occurred in the present case, it is the trial court‟s duty to review the

documents and to determine which, if any, are material and should be disclosed.

We perceive no reason that the defense should have a broader right of access to

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privileged material on appeal, particularly when we consider that the defense

request concedes that the juvenile and municipal courts ordered disclosure of

substantial sensitive and embarrassing material from the file and that, on appeal,

appellate counsel offers mere speculation that the file might disclose something

that could be the basis for a claim on appeal.

Appellate counsel contends that Tara has a diminished interest in

maintaining the confidentiality of the juvenile file because the passage of time has

rendered the contents stale. Appellate counsel further contends that because so

much information of a highly personal nature was disclosed by the orders of the

trial court and the juvenile court, “it is highly doubtful” that disclosure of the

remainder of the file‟s contents “would reveal anything more intrusive than the

material already disclosed.” Finally, counsel asserts that because Tara is no longer

a minor or within the jurisdiction of the juvenile court, one of the rationales for

maintaining the confidentiality of the juvenile court file — to avoid interference

with the rehabilitative purposes of juvenile court proceedings — is absent. These

arguments fail to afford appropriate deference to the statutory policy of

maintaining the confidentiality of juvenile case files, and to Tara‟s interest in

avoiding public revelation of additional painful and embarrassing circumstances in

her early life.

In sum, contrary to defendant‟s claim that he is entitled to inspect the entire

file, “[p]arties who challenge on appeal trial court orders withholding information

as privileged or otherwise nondiscoverable „must do the best they can with the

information they have, and the appellate court will fill the gap by objectively

reviewing the whole record.‟ ” (People v. Price (1991) 1 Cal.4th 324, 493; see

also People v. Avila (2006) 38 Cal.4th 491, 606.)

This court‟s function is to review the confidential records that the juvenile

court declined to disclose, in order to determine whether they were material and

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should have been disclosed. (See People v. Price, supra, 1 Cal.4th at p. 493.)

“Although courts have used different terminologies to define „materiality,‟ a

majority of [the United States Supreme] Court has agreed, „[e]vidence is material

only if there is a reasonable probability that, had the evidence been disclosed to

the defense, the result of the proceeding would have been different. A “reasonable

probability” is a probability sufficient to undermine confidence in the outcome.‟ ”

(Pennsylvania v. Ritchie, supra, 480 U.S. at p. 57, quoting United States v. Bagley

(1985) 473 U.S. 667, 682.) We also consider the effect of nondisclosure on the

investigations conducted by counsel and on their trial strategy. (People v.

Zambrano, supra, 41 Cal.4th at p. 1132.)

We have reviewed the entire confidential juvenile court and superior court

files, and have concluded that the undisclosed information was not material to the

defense.13 In addition, having reviewed the confidential file, we conclude the

contents do not support any claim that further disclosure is required to protect

defendant‟s right to a fair appeal. (See People v. Gurule (2002) 28 Cal.4th 557,

595.)


13

Defendant does not explain his reliance upon the right of confrontation

guaranteed by the Sixth and Fourteenth Amendments. The plurality opinion in
Pennsylvania v. Ritchie, supra, 480 U.S. 39, interpreted the right of confrontation
as a trial right. (Id. at pp. 52-54.) The defendant has no right to confront
witnesses against him during an appeal. To the extent defendant claims error
under the confrontation clause on the basis of the juvenile court‟s refusal to order
pretrial disclosure of the entire file, we have rejected claims that the Sixth
Amendment right of confrontation extends to requiring the granting of pretrial
discovery motions. (People v. Hammon (1997) 15 Cal.4th 1117, 1128 [“we
decline to extend the defendant‟s Sixth Amendment right[] of confrontation . . . to
authorize pretrial disclosure of privileged information”].) Even if the Sixth
Amendment right of confrontation applied to the discovery request made in the
trial court, our review of the entire file establishes that the trial court‟s order did
not deprive defendant of any material evidence.

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E. Challenges to California’s Death Penalty Scheme

Defendant contends California‟s death penalty statute, as interpreted by this

court and applied at defendant‟s trial, violates federal constitutional provisions in

various respects. These claims have been rejected in many prior decisions of this

court, and defendant offers no persuasive grounds for reconsideration.

The California death penalty statute is not impermissibly broad within the

meaning of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United

States Constitution, whether the statute is considered on its face or as applied.

(People v. Mungia (2008) 44 Cal.4th 1101, 1141; People v. Snow (2003) 30

Cal.4th 43, 125-126.)

Section 190.3, factor (a) does not permit arbitrary or capricious imposition

of a sentence of death in violation of the Fifth, Sixth, Eighth, and Fourteenth

Amendments to the United States Constitution, whether considered on its face or

as applied. (Tuilaepa v. California (1994) 512 U.S. 967, 975-977; People v.

Williams (2008) 43 Cal.4th 584, 648.)

Nothing in the federal Constitution requires a penalty phase jury to reach

unanimity on the presence of aggravating factors or to agree unanimously that

aggravating factors outweigh mitigating factors. (People v. Williams, supra, 43

Cal.4th at pp. 648-649; People v. Morrison (2004) 34 Cal.4th 698, 730.) Except

for prior-violent-crimes evidence and prior felony convictions under section 190.3,

factors (b) and (c), the court is not required to instruct on any burden of proof,

whether for finding aggravating factors, for determining that aggravating factors

outweigh mitigating factors, or for reaching the conclusion that death is the

appropriate penalty. (People v. Cruz (2008) 44 Cal.4th 636, 681.) In addition,

the United States Supreme Court decisions in Cunningham v. California (2007)
549 U.S. 270, Ring v. Arizona (2002) 536 U.S. 584, and Apprendi v. New Jersey

(2000) 530 U.S. 466 do not compel a different result. (People v. Williams, supra,

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43 Cal.4th at p. 649.) Rather, “ „[u]nlike the guilt determination, “the sentencing

function is inherently moral and normative, not factual” [citation] and, hence, not

susceptible to a burden-of-proof quantification.‟ ” (People v. Manriquez (2005)

37 Cal.4th 547, 589.)

The federal Constitution does not require the jury to make penalty phase

findings, written or otherwise. (People v. Williams, supra, 43 Cal.4th at pp. 648-

649.)

The absence of intercase proportionality review does not violate state or

federal constitutional principles. (People v. Crittenden (1994) 9 Cal.4th 83, 156-

157; see also People v. Cruz, supra, 44 Cal.4th at p. 681; People v. Harris (2008)

43 Cal.4th 1269, 1323 [questioning the defendant‟s assertion that this court has

“categorically forbidden such review”].)

The use of unadjudicated criminal activity as a circumstance in aggravation

does not violate the guarantee of due process of law or render a judgment of death

unreliable, and the jury is not constitutionally required to agree unanimously that

the prior violent criminal activity has been proven. (People v. Morrison, supra, 34

Cal.4th at p. 729.)

As we have held, “[u]se in the sentencing factors of such adjectives as

„extreme‟ (factors (d), (g)) and „substantial‟ (factor (g)) does not act as a barrier to

the consideration of mitigating evidence in violation of the federal Constitution.”

(People v. Morrison, supra, 34 Cal.4th at pp. 729-730.)

It is not required by the federal Constitution that the jury be instructed that

certain factors may be considered solely in mitigation. (People v. Morrison,

supra, 34 Cal.4th at p. 730.) The statute and the instruction based upon the statute

directing the jury to consider “whether or not” mitigating facts are present, are

consistent with the Eighth and Fourteenth Amendments. (People v. Morrison, at

p. 730.)

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The California death penalty scheme does not violate the guarantee of equal

protection of the laws by virtue of its failure to afford various procedural

safeguards to capital defendants that are applicable in noncapital trials. (People v.

Mungia, supra, 44 Cal.4th at p. 1142; People v. Cruz, supra, 44 Cal.4th at p. 681.)

We have rejected the contention that the California death penalty scheme

violates international law. (People v. Cruz, supra, 44 Cal.4th at p. 689; People v.

Brown (2004) 33 Cal.4th 382, 403.)

III.

CONCLUSION

For the foregoing reasons, the judgment is affirmed in its entirety.

GEORGE, C. J.

WE CONCUR:


KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.


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CONCURRING AND DISSENTING OPINION BY MORENO, J.

I concur in the majority opinion insofar as it affirms the guilt verdict and

special circumstance finding. I dissent with respect to the penalty verdict. In my

view, Prospective Juror E.H. was improperly excused for cause because of the trial

court‟s determination that E.H. was unable to realistically impose the death

penalty. Notwithstanding the deference appellate courts owe to a trial court‟s

determination of such matters, I conclude the trial court erred. Although E.H.

professed to be against the death penalty, she was also unequivocal in her

willingness to impose that penalty in some circumstances, and to do so in a way

that was consistent with California death penalty law, and that therefore she was

able and willing to perform her duties as a juror in a capital case. Moreover, the

trial court explicitly stated that it did not doubt her credibility. I therefore

conclude that the trial court erred in determining she would be substantially

impaired in performing her duty as a juror. Such error requires reversal of the

death penalty verdict.

I.

I begin with review of pertinent case law. In Witherspoon v. Illinois (1968)
391 U.S. 510 (Witherspoon), the United States Supreme Court considered a capital

jury selection regime governed by a statute that permitted a challenge for cause

whenever a prospective juror was opposed to capital punishment or expressed

“conscientious scruples” against such punishment. (Id. at p. 512.) In the case

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before the court, almost half the veniremen had been excused because of qualms

about capital punishment. (Id. at p. 513.) The Witherspoon court concluded that

such a regime would deny a capital defendant the Sixth Amendment right to an

impartial jury, because a jury in which all persons with reservations about the

death penalty were excluded would be a panel “uncommonly willing to condemn a

man to die.” (Witherspoon, at p. 521.) Instead, the court held that jurors may be

excluded for cause if they make it “unmistakably clear (1) that they would

automatically vote against the imposition of capital punishment without regard to

any evidence that might be developed at the trial of the case before them, or (2)

that their attitude toward the death penalty would prevent them from making an

impartial decision as to the defendant‟s guilt.” (Id. at pp. 522-523, fn. 21, italics in

original.)

In Wainwright v. Witt (1985) 469 U.S. 412 (Witt), the court, while

reaffirming that the Sixth Amendment is violated by categorically excluding from

capital juries those opposed to the death penalty, criticized the Witherspoon

court‟s formulation of the proper standard for challenging prospective jurors. In

that case, notwithstanding a prospective juror‟s admission that she believed her

personal objections to the death penalty would interfere with her ability to sit as a

juror and to determine both defendant‟s guilt and innocence, the Eleventh Circuit

Court of Appeal had concluded that the juror‟s expression had not met the

Witherspoon standard of unequivocally stating that she would never vote for the

death penalty, and reversed the death judgment. The Supreme Court reversed.

The court noted that the jury in Witherspoon was given unfettered discretion to

impose the death penalty, whereas jurors after Gregg v. Georgia (1976) 428 U.S.

153 had their discretion limited and directed by certain statutory criteria.

Therefore, the fact that a prospective juror would not “automatically” vote against

death was insufficient to protect the state‟s interest in having jurors who would

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comply with its statutory capital sentencing scheme. (Witt, supra, 469 U.S. at

pp. 420-423.) Instead, the court permitted removal for cause when the juror‟s

views would “ „prevent or substantially impair the performance of his duties as a

juror in accordance with his instructions and his oath.‟ ” (Id. at p. 424.)

The Witt court further elaborated that “in addition to dispensing with

Witherspoon‟s reference to „automatic‟ decisionmaking, this standard likewise

does not require that a juror‟s bias be proved with „unmistakable clarity.‟ This is

because determinations of juror bias cannot be reduced to question-and-answer

sessions which obtain results in the manner of a catechism. What common sense

should have realized experience has proved: many veniremen simply cannot be

asked enough questions to reach the point where their bias has been made

„unmistakably clear‟; these veniremen may not know how they will react when

faced with imposing the death sentence, or may be unable to articulate, or may

wish to hide their true feelings. Despite this lack of clarity in the printed record,

however, there will be situations where the trial judge is left with the definite

impression that a prospective juror would be unable to faithfully and impartially

apply the law.” (Witt, supra, 469 U.S. at pp. 424-426, fn. omitted.) The Witt court

also emphasized that, as in other situations involving juror bias, a capital juror‟s

bias based on opposition to the death penalty “involves credibility findings whose

basis cannot be easily discerned from an appellate record, “and therefore requires

considerable deference to the trial court‟s determination. (Id. at p. 429.) The

question on review “is not whether a reviewing court might disagree with the trial

court‟s findings, but whether those findings are fairly supported by the record.”

(Id. at p. 434.)

In California, our capital statutory scheme requires that penalty phase jurors

weigh various aggravating and mitigating factors in order to determine whether

death or life imprisonment without possibility of parole is the proper sentence.

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Although jurors are statutorily directed to consider such aggravating and

mitigating factors, their evaluation of those factors is by its very nature subjective:

“ „Each juror is free to assign whatever moral or sympathetic value he deems

appropriate to each and all of the various factors he is permitted to consider. . . .‟ ”

(People v. Boyde (1988) 46 Cal.3d, 212, 253.) For this reason, the standard and

burden of proof requirements for determining guilt in criminal proceedings are

neither required nor appropriate at the penalty phase of a capital trial. “ „Unlike

the guilt determination, “the sentencing function is inherently moral and

normative, not factual” [citation] and, hence, not susceptible to a burden-of-proof

quantification.‟ ” (People v. Box (2000) 23 Cal.4th 1153, 1216.)

Accordingly, it is understood that jurors will bring their values, beliefs, and

opinions into the jury room when determining the proper penalty. As we

explained in People v. Kaurish (1990) 52 Cal.3d 648, 699 (Kaurish): “A

prospective juror personally opposed to the death penalty may nonetheless be

capable of following his oath and the law. A juror whose personal opposition

toward the death penalty may predispose him to assign greater than average

weight to the mitigating factors presented at the penalty phase may not be

excluded, unless that predilection would actually preclude him from engaging in

the weighing process and returning a capital verdict.”

As we elaborated in People v. Stewart (2004) 33 Cal.4th 425, 447

(Stewart): “Kaurish, supra, 52 Cal.3d 648, recognizes that a prospective juror may

not be excluded for cause simply because his or her conscientious views relating

to the death penalty would lead the juror to impose a higher threshold before

concluding that the death penalty is appropriate or because such views would

make it very difficult for the juror ever to impose the death penalty. Because the

California death penalty sentencing process contemplates that jurors will take into

account their own values in determining whether aggravating factors outweigh

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mitigating factors such that the death penalty is warranted, the circumstance that a

juror‟s conscientious opinions or beliefs concerning the death penalty would make

it very difficult for the juror ever to impose the death penalty is not equivalent to a

determination that such beliefs will „substantially impair the performance of his

[or her] duties as a juror‟ under Witt, supra, 469 U.S. 412. . . . A juror might find

it very difficult to vote to impose the death penalty, and yet such a juror‟s

performance still would not be substantially impaired under Witt, unless he or she

were unwilling or unable to follow the trial court‟s instructions by weighing the

aggravating and mitigating circumstances of the case and determining whether

death is the appropriate penalty under the law.” (First italics added.)

Thus, although we require jurors to set aside their values and biases when

determining guilt, and to objectively apply the law as described to them in the jury

instructions to the evidence presented, at the penalty phase of a capital trial

something quite different is expected. Values, far from being set aside, are the

very basis for the juror‟s decision, albeit guided by certain statutory markers.

Accordingly, if we can imagine a hypothetical system in which jurors serve on

multiple capital juries, and their voting records can be discovered, juror A, who

voted 5 times for life imprisonment without parole and 5 times for death, would

not necessarily be a more objective or conscientious juror than juror B, who served

on the same 10 juries but voted for death 9 times out of 10, or juror C, who voted

for life imprisonment without parole 9 out of 10 times. Although juror B may be

strongly predisposed to vote for the death penalty, and juror C against, each would

be following his or her oath as long as he or she followed the statutory directive to

choose a penalty by weighing aggravating and mitigating circumstances, even

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though their attitudes toward the death penalty would cause them to differ from

each other, and from juror A, as to the weights given.1

There are two types of challenges that prosecution and defense counsel may

exercise to remove prospective jurors, challenges for cause (Code Civ. Proc.,

§ 227) and peremptory challenges (id., § 231), and in a capital case, each side has

20 peremptory challenges (ibid.). In practice, peremptory challenges often are

used to remove prospective jurors in whom bias is perceived, but where that bias

does not rise to the level of a challenge for cause. (See People v. Wheeler (1978)

22 Cal.3d 258, 278-279.)

Therefore, in a capital case, when a prosecutor is faced with a prospective

juror who expresses opposition to the death penalty, he or she may pursue two

routes to removing that person. First, if it can be gleaned from voir dire that such

opposition would essentially prevent the prospective juror from voting for the

death penalty, or from following the statutory scheme governing capital cases, he

or she may be removed for cause. If, on the other hand, it appears from voir dire

that the prospective juror can set aside categorical opposition to the death penalty,

can engage in the weighing process and under some realistic circumstances

impose the death penalty, but the person‟s opposition to the death penalty makes it


1

I note that the problem of how to deal with prospective jurors in capital

cases who oppose the death penalty may well be a large and growing one. Polls
show that about one-third of those surveyed in this state oppose the death penalty,
up from only 14 percent in 1989. (See Field Research Corp., The Field Poll,
Release #2183 (Mar. 3, 2006) 1-2, 6 (The Field Poll) [poll conducted February 12-
26, 2006, showed 63 percent favored and 32 percent opposed the death penalty in
California].) The exclusion of one out of three potential jurors because the
attitudes toward the death penalty might predispose them to vote for life
imprisonment without parole would indeed result in a jury panel “uncommonly
willing to condemn a man to die” in violation of the defendant‟s Sixth
Amendment rights. (Witherspoon, supra, 391 U.S. at p. 521.)

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less likely that he or she will impose that penalty, the prosecution may exercise a

peremptory challenge to remove the juror. Although the determination is not

necessarily easy, a trial court must not confuse the two types of jurors, and if it

appears from the record that the trial court excused for cause a juror who was able

to engage in the weighing process and impose the death penalty, even though that

juror‟s opposition to capital punishment would “make it very difficult for the juror

ever to impose the death penalty . . .” (Stewart, supra, 33 Cal.4th at p. 447), an

appellate court must find error.

On the other hand if a prospective juror equivocates during voir dire on the

question of whether she can fulfill her oath in a capital case, the trial court‟s

determination that she should be removed for cause is binding on appellate courts.

(See People v. Roldan (2005) 35 Cal.4th 646, 696.) This is because in evaluating

whether equivocal answers indicate substantial impairment, the trial court takes

into account the credibility and demeanor of the prospective juror, which appellate

courts cannot do. (See id. at p. 697.)

II.

Turning to the present case, as the majority recounts: “In her response to

the juror questionnaire, when asked to describe her general feelings regarding the

death penalty, Prospective Juror E.H. wrote: „I used to be strictly against it —

particularly because it was applied to poor or minority persons more so than

others. Now — I might be able to vote for the death penalty — if a crime was

really, really awful.‟ She added that her views had moved from „strongly against‟

to „moderately against‟ capital punishment, „based on hearing of awful crimes and

repeat offenders.‟ Her questionnaire also noted that she would vote against a

ballot measure authorizing the penalty of death, because „it‟s applied more often to

minority and poor‟ defendants. She nonetheless checked the box on the

questionnaire indicating that she did not „hold any religious, moral feelings or

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philosophical principle that would affect [her] ability to vote for the death penalty

in this case.‟ ” (Maj. opn., ante, at pp. 40-41.)

In response to her initial questioning by the trial court, she candidly

admitted that she was more inclined to vote for life without parole instead of

death. She nonetheless affirmed that she could vote for death, that such a vote was

not merely a remote possibility but a realistic one “for a crime or crimes that . . .

had such aggravating . . . circumstances.”

In response to questioning by the prosecution, E.H. affirmed that she could

vote in favor of the death penalty, for example, in situations in which a lot of

people were killed, or in which torture was involved. She never indicated that

these were the sole sets of circumstances that would warrant her vote in favor of

the death penalty. When the prosecutor pointed out that neither was involved in

the present case, and that the special circumstance at issue was a murder connected

with lewd and lascivious acts on a child under the age of 14, she indicated that she

“might” be able to impose the death penalty, and that she would have to hear the

facts of the case. In the course of the prosecutor‟s voir dire, E.H. stated her

disagreement with the rule that people opposed to the death penalty who state that

there was no realistic possibility of them imposing the death penalty should be

excluded from juries, although she reiterated that she did not fall into that

category. She also affirmed that, notwithstanding her view that minorities are

disproportionately subject to the death penalty, she could impose the death penalty

on a member of minority group because “each case is different. . . . [I]f the facts

warrant it, I could vote for the death penalty.” Pressed by the prosecution about

whether her possibility of imposing the death penalty was realistic, she stated: “It

sounds like you and I define realistically differently.” In the course of their

colloquy, in the prosecutor‟s attempt to probe whether imposition of the death

penalty was a realistic possibility for her, he stated that “I get a sense that this is

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very, very uncomfortable for you, and, you know it‟s very — it‟s irritating. Am I

right?” E.H. agreed that he was.

Defense counsel declined to question E.H., and the trial court conducted

further voir dire. The court stated its particular concern with her position that

people categorically opposed to imposing the death penalty should not be

excluded from juries, and that if that were the case, there would be no death

penalty verdicts. E.H. affirmed that if she were a legislator, that would be her

position, and that such a rule would not necessarily result in no death penalty

verdicts because “perhaps that person, with that belief, might get changed or

swayed by the actual situation.” The trial court expressed concern that her

response sounded like “there may be an agenda here. An agenda to achieve some

social or political end.” E.H. denied having any “hidden agenda” and stated that

“realistically, if I had to put a number on it, it would be like, say, 10 percent

possibility I could vote for the death penalty.”

After hearing from the prosecution and defense counsel, the latter of whom

argued vigorously that E.H. should not be excused for cause, the trial court ruled

in favor of the prosecution. The court stated that it was a “close and troubling

call.” It noted again E.H.‟s moderate opposition to the death penalty and her view

that minorities are disproportionately given the death penalty and stated that it was

“troubled, to a degree, by all these things,” but acknowledged that they were not,

by themselves, reasons to excuse a juror. The court then stated: “I don‟t believe

she is lying here. I don‟t believe she came into court with the intent to thwart the

process. But I am very concerned with any [juror] who will state in [the]

unequivocal way that she did in response to one of my questions, I disagree and

disapprove of the law that would allow the court to excuse someone who is

emphatically opposed to the death penalty in all circumstances and wouldn‟t vote

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for it, no matter what the evidence showed at a penalty trial. And she did state

that.

“Now, I made it clear that I did not believe that it was her — and I don‟t

and it‟s clear from her questionnaire and her questions here that that isn‟t

necessarily her. But if that is her view, for someone who does fall into that

position, that is a criteri[on] that I need to evaluate[. I]n terms of whether or not it

is a realistic and practical possibility that she would ever, under any

circumstances, impose the death penalty. In other words, it‟s a factor for the court

to determine in deciding whether or not I have a definite impression that she

would be unable to perform her oath.

“Adding all these things together, I have the definite impression that she

could not do this, that she could not perform her duty, in accordance with her oath.

And by adding all these things together, I am adding together all the various things

that we‟ve ascribed to her, the fact that she equates this defendant with a class that

she believes are disproportionately the target of capital punishment and the various

other things that she‟s expressed here. All things considered, I thought about this

as carefully as I can. I am left with the definite impression that she would be

unable to faithfully and impartially apply the law.

“I do not believe she is perjuring herself here. I do not believe she is lying

to us. I believe she is honestly expressing her views, as best she can.

“But that‟s my ruling. And I will excuse her.”

Although no one can fault the trial court for what was obviously a

conscientious and earnest effort to grapple with this difficult question, the record

does not support the determination that E.H. was unable to fulfill her oath. In

arriving at this conclusion I first consider the trial court‟s negative findings. The

court concluded that E.H. was not lying, and did not have a hidden agenda. Thus,

although reviewing courts will generally defer to trial courts on matters of

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credibility, here the trial court made clear it found that E.H.‟s statements were

credible.

If that is the case, then E.H. was not lying when she said that she could

impose the death penalty in some cases, if the circumstances were truly

aggravating. Indeed, the trial court expressly concluded that E.H. was not among

the class of persons who could never vote for the death penalty. Nor did E.H. take

the position that only certain of the statutory special circumstances were worthy of

the death penalty. She did not rule out the possibility that she could impose the

death penalty in the present case in which the special circumstance was that the

murder was committed in connection with the commission of lewd acts on a child

under the age of 14.

The trial court found significant E.H.‟s view that those categorically

opposed to imposing the death penalty should be allowed on juries. But her view

on this matter was largely irrelevant to the question of whether she could follow

her oath. She merely stated that, if she were a legislator, she would support that

rule. She never stated that she would be unable to serve on a jury that would

exclude such strong opponents of the death penalty. The question of who should

be allowed to serve on a capital jury is a complex one that has bedeviled lawyers,

courts and scholars alike. While E.H.‟s views on this question were perhaps not

fully formed, and she might have altered them with further discussion, she was

not, in her view, advocating a method of jury selection that would result in no

death verdicts. She believed that some people who professed to be categorically

against the imposition of the death penalty might change their mind when asked to

serve on a jury sitting in judgment of an aggravated murder — in other words that

some of those jurors might undergo the transformation that she herself had

experienced of modifying her opposition to the death penalty when faced with the

facts of a very aggravated murder. To be sure, if her rule was adopted, fewer

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death penalty verdicts would result. But her opinion on who should qualify for a

capital jury would have bearing on her fitness to serve on a capital jury herself

only if it reflected some kind of hidden agenda to qualify for a capital jury in order

to vote against the death penalty. As discussed, the trial court explicitly rejected

the notion that E.H. had such a hidden agenda. Indeed, a person with such an

agenda would tend to hide or understate his or her true feelings about the death

penalty whereas E.H. was, in the trial court‟s words, “honestly expressing her

views.”

Nor did her view that minority jurors are disproportionately subject to the

death penalty disqualify her. That view does have a basis in fact and is widely

shared.2 As long as this view will not prevent a juror from imposing the death

penalty on a minority defendant, it cannot be a basis for disqualifying a juror for

cause. Here, E.H. specifically stated that she could impose the death penalty on a

minority defendant if the facts warranted it, and the record indicates the trial court

believed her statement.

In sum, there is nothing in the record, nor anything in the trial court‟s

remarks, to suggest that E.H. would have subverted a proper determination of guilt

2

Although the case for the race of the defendant, as an independent factor,

affecting the charging and sentencing practices of prosecutors and juries in capital
cases is inconclusive (see Liptak, New Look at Death Sentences and Race, N.Y.
Times (Apr. 29, 2008) p. A10), there is no question that African-Americans in
particular make up a much larger proportion of the death row population than of
the general population. (NAACP Legal Defense and Educational Fund, Inc.,
Death Row U.S.A. (Winter 2009) 35 [42 percent of those on death row are
African-American, as opposed to approximately 12 percent of the general
population].) The February 2006 Field Poll on the subject reports that 40 percent
of those surveyed agree with the statement “racial discrimination is a big factor in
deciding who gets the death penalty with whites not as likely as blacks, Latinos,
and other minorities,” with 51 percent disagreeing and 9 percent having no
opinion. (The Field Poll, supra, at p. 5.)

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or special circumstances. At most, the record supports the conclusion that E.H.‟s

moderate opposition to the death penalty would “make it very difficult for [her]

ever to impose the death penalty . . . .” (Stewart, supra, 33 Cal.4th at p. 447.) But

as we have held, that difficulty is not to be equated with substantial impairment of

a juror‟s duties. (Ibid.) Indeed, Juror D.F., who was not excused for cause, had a

strong predilection in favor of the death penalty. Although the prosecution may

well have found a peremptory challenge of E.H. appropriate, there is nothing in

the record, particularly in light of the trial court finding in favor of E.H.‟s

credibility, to indicate a substantial impairment that would support a challenge for

cause. Whether the trial court misapprehended the distinction that we made

explicit in Stewart between substantial impairment of a juror‟s performance of the

prescribed duties and a juror‟s great difficulty in imposing the death penalty,

and/or because the court was distracted by the irrelevancy of E.H.‟s position

regarding who should serve on a capital jury, or for some other reason, the trial

court erred in granting the prosecutor‟s challenge of E.H. for cause.

The majority comes to the contrary conclusion, relying on several

considerations. The majority makes much of the fact that E.H. “displayed visible

emotion when challenged concerning her ability to consider imposing the death

penalty, as well as when she learned that the law permitted exclusion of

prospective jurors who were unalterably opposed to the death penalty.” (Maj.

opn., ante, at p. 46.) But neither E.H.‟s irritation with the prosecutor‟s line of

somewhat repetitious questioning, nor her expression of emotion when articulating

and defending her positions in an intimidating setting, pointed to her inability or

unwillingness to follow her oath. Indeed, if voir dire produces tension between

prospective jurors and prosecutors, or otherwise exposes temperamental unfitness,

it is a peremptory challenge rather than a challenge for cause that is appropriately

exercised. As the United States Supreme Court stated in Swain v. Alabama (1965)

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380 U.S. 202, 219-220 (overruled on other grounds in Batson v. Kentucky (1986)
476 U.S. 79): “[T]he very availability of peremptories allows counsel to ascertain

the possibility of bias through probing questions on the voir dire and facilitates the

exercise of challenges for cause by removing the fear of incurring a juror‟s

hostility through examination and challenge for cause.” Furthermore, the trial

court in its extensive statement of reasons for granting the challenge for cause did

not rely on E.H.‟s emotional response during voir dire.

The majority also states: “E.H. did not suggest she could put aside her own

views concerning the death penalty and participate in the trial purely on the basis

of the law under which she was instructed. Rather than deferring to existing law,

the prospective juror offered merely a small possibility that her own scruples

would permit her to reach a verdict of death for an especially heinous crime.”

(Maj. opn., ante, at p. 46.) I respectfully disagree with the majority‟s

characterization of E.H.‟s responses during voir dire. Although E.H. did not

employ the legal jargon that belongs to penalty phase jurisprudence, she did

evince an understanding of her role as a juror that is perfectly consistent with our

death penalty law. She affirmed that she could realistically impose the death

penalty “for a crime or crimes that . . . had such aggravating . . . circumstances,”

and that she had relaxed her previous strong opposition to the death penalty due to

“awful crimes and repeat offenders.” Thus, although she was not explicitly asked

about weighing aggravating and mitigating circumstances, she avowed that she

could and would impose the death penalty for certain murders when there were

aggravating circumstances involving either the crime or the criminal record of the

defendant. Nor, as discussed above, did she unduly restrict what types of

aggravating circumstances could lead her to vote for the death penalty — she

mentioned torture murder and multiple murder as examples but she did not rule

out murder in the course of committing lewd and lascivious acts on a minor as also

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worthy of the death penalty if aggravating circumstances were present. She

appeared to be describing, albeit in layman‟s terms, precisely the kind of weighing

of aggravating and mitigating circumstances that penalty phase juries are required

to perform.

The majority compares E.H. to Prospective Juror B.S., who was also

excused for cause and also espoused anti-death-penalty views. I believe a

comparison between the two jurors is useful but again, I draw a different

conclusion. B.S. indicated on her questionnaire that she was strongly opposed to

the death penalty and stated that the death penalty “serves no useful purpose” and

“makes killers out of us.” (See maj. opn., ante, at p. 32.) When asked by the

prosecutor if it is realistic that she would ever vote for the death penalty, she

responded that “it is not realistic that I would” but “it is realistic that I . . . could,”

a response the trial court characterized as “verbal gymnastics.” The trial court

reasonably concluded that a person with such strong views against the death

penalty would not follow her oath, notwithstanding the lip service she gave to her

ability to impose it. E.H., in contrast, was consistent in explaining that her

opposition to the death penalty had moderated and that she could impose the death

penalty in some cases of murder with aggravating circumstances. She never

expressed the kind of grave moral reservations stated by B.S. — the death penalty

makes killers out of us — nor engaged in B.S.‟s type of verbal evasion, both of

which taken together justifiably led to B.S.‟s removal for cause. She made clear

that her general opposition, based in large part on her view that minorities and the

poor are disproportionately subject to the death penalty, would not preclude her

from imposing that penalty on a particular minority defendant when warranted by

the facts.

I agree with the majority that E.H. was not disqualified simply because she

was opposed to the death penalty. Rather, the trial court appeared to disqualify her

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because of the views she held — that minorities and the poor are punished

disproportionately, that people categorically impose the death penalty should serve

on juries — and the court‟s belief that such views would make it difficult for her

to impose the death penalty. But as discussed above, that difficulty does not

constitute a substantial impairment of her ability to perform her duty as a juror,

and there was no indication of substantial impairment, particularly in light of the

trial court‟s credibility findings in favor of E.H. I see nothing in the record, nor in

the trial court‟s reasons for granting the prosecution‟s motion, that would call into

question her ability to engage in the weighing process required by the death

penalty statute and, in appropriate cases, vote to impose the death penalty.

The commission of Witt error by wrongfully excusing a prospective juror in

a capital case requires automatic reversal of the death judgment, but does not

disturb the guilt and special circumstance verdicts. (People v. Heard (2003) 31

Cal.4th 946, 966.) Accordingly, I would reverse the capital sentence and remand

for a new penalty phase trial.

MORENO, J.

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Martinez
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S064574
Date Filed: August 13, 2009
__________________________________________________________________________________

Court: Superior
County: Alameda
Judge: Jeffrey W. Horner

__________________________________________________________________________________

Attorneys for Appellant:

Paul J. Spiegelman, under appointment by the Supreme Court, for Defendant and Appellant.




__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney
General, Gerald A. Engler, Assistant Attorney General, Bruce Ortega and Jill M. Thayer, Deputy Attorneys
General, for Plaintiff and Respondent.

---

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

Paul J. Spiegelman
P. O. Box 22575
San Diego, CA 92192-2575
(858) 452-7121

Jill M. Thayer
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5954

---

Automatic appeal from a judgment of death.

Opinion Information

Date:	Citation:	Docket Number:	Category:	Status:
Thu, 08/13/2009	47 Cal. 4th 399, 213 P.3d 77, 97 Cal. Rptr. 3d 732	S064574	Automatic Appeal	opinion issued

Opinion Authors
Opinion	Chief Justice Ronald M. George
Dissent	Justice Carlos R. Moreno

Disposition
Aug 13 2009	Opinion: Affirmed

Dockets
Aug 29 1997	Judgment of death
Sep 25 1997	Filed certified copy of Judgment of Death Rendered 8-29-97.
Sep 25 1997	Penal Code sections 190.6 et seq. apply to this case
Nov 10 1998	Record certified for completeness
Jun 11 1999	Change of Address filed for: Attorney General - S.F. Office.
Mar 13 2002	Counsel appointment order filed appointing Paul J. Spiegelman to represent applt for the direct appeal.
Mar 13 2002	Compensation awarded counsel Atty Spiegelman
Apr 1 2002	Date trial court delivered record to appellant's counsel (26,402 pp. record) (see Calif. Rules of Court, rule 39.50(c); the date of delivery is the date of mailing plus five days.) (Note: record was transmitted on 3-25-2002.)
Apr 11 2002	Received: notice from superior court that the 26,402 pp. record was transmitted to appellant's counsel on 3-25-2002.
Apr 15 2002	Appellant's opening brief letter sent, due: June 23, 2003.
May 17 2002	Counsel's status report received (confidential) from atty Spiegelman.
Jul 18 2002	Counsel's status report received (confidential) from atty Spiegelman.
Sep 19 2002	Counsel's status report received (confidential) from atty Spiegelman.
Dec 2 2002	Counsel's status report received (confidential) from atty Spiegelman.
Jan 28 2003	Counsel's status report received (confidential) from atty Spiegelman.
Mar 28 2003	Counsel's status report received (confidential) from atty Spiegelman.
Apr 25 2003	Received copy of appellant's record correction motion Applt's request for correction of transcripts, additional record on appeal, to examine sealed documents, for permission to submit proposed settled statements and for other assistance to complete record. (25 pp.)
Apr 30 2003	Compensation awarded counsel Atty Spiegelman
Jun 2 2003	Counsel's status report received (confidential) from atty Spiegelman.
Jun 17 2003	Request for extension of time filed to file appellant's opening brief. (1st request)
Jun 23 2003	Extension of time granted to 8/22/2003 to file appellant's opening brief. The court anticipates that after that date, only three further extensions totaling 180 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Aug 18 2003	Request for extension of time filed to file appellant's opening brief. (2nd request)
Aug 19 2003	Extension of time granted to 10/21/2003 to file appellant's opening brief. The court anticipates that after that date, only three further extensions totaling 180 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Oct 17 2003	Request for extension of time filed to file appellant's opening brief. (3rd request)
Oct 21 2003	Extension of time granted to 12/22/2003 to file appellant's opening brief. The court anticipates that after that date, only two further extensions totaling 120 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Oct 21 2003	Counsel's status report received (confidential) from attorney Spiegelman.
Dec 18 2003	Request for extension of time filed to file appellant's opening brief. (4th request)
Dec 26 2003	Extension of time granted to 2/23/2004 to file appellant's opening brief. After that date, only two further extensions totaling 130 additional days will be granted. Extension is granted based upon counsel Paul J. Spiegelman's representation that he anticipates filing that brief by 6/30/2004.
Feb 17 2004	Request for extension of time filed to file appellant's opening brief. (5th request)
Feb 23 2004	Counsel's status report received (confidential) from atty Spiegelman.
Feb 23 2004	Extension of time granted to 4-23-2004 to file AOB. After that date, only one further extension totaling about 70 additional days will be granted. Extension granted based upon counsel Paul J. Spiegelman's representation that he anticipates filing the brief by 6-30-2004.
Apr 15 2004	Request for extension of time filed to file appellant's opening brief. (6th request)
Apr 19 2004	Extension of time granted to June 21, 2004 to file appellant's opening brief. After that date, only one further extensions totaling about 70 additional days will be granted. Extension is granted based upon counsel Paul J. Spiegelman's representation that he anticipates filing that brief by August 31, 2004.
Apr 30 2004	Counsel's status report received (confidential) from atty Spiegelman.
May 13 2004	Record certified for accuracy
May 18 2004	Compensation awarded counsel Atty Speigelman
May 19 2004	Compensation awarded counsel Atty Spiegelman
Jun 17 2004	Request for extension of time filed to file appellant's opening brief. (7th request)
Jun 21 2004	Extension of time granted to 8/31/2004 to file appellant's opening brief. Extension is granted based upon counsel Paul J. Speigeleman's represenation that he anticipates filing that brief by 8/31/2004. After that date, no further extension will be granted.
Jul 7 2004	Counsel's status report received (confidential) from atty Spiegelman.
Jul 26 2004	Motion for access to sealed record filed Request for order permitting appellate counsel to view sealed juvenile file.
Aug 5 2004	Compensation awarded counsel Atty Spiegelman
Aug 23 2004	Request for extension of time filed to file appellant's opening brief. (8th request)
Aug 25 2004	Compensation awarded counsel Atty Spiegelman
Aug 26 2004	Extension of time granted to 9/17/2004 to file appellant's opening brief. Extension is granted based upon counsel Paul J. Spiegelman's representation that he anticipates filing that brief by 9/17/2004. After that date, no further extension will be granted.
Sep 3 2004	Filed: Supplemental declaration of service of appellant's request for order to view sealed juvenile file.
Sep 13 2004	Opposition filed by respondent to appellant's request for order permitting appellate counsel to view sealed juvenile file.
Sep 14 2004	Record on appeal filed Clerk's transcript 74 volumes (21221 pp.) and reporter's transcript 47 volumes (5692 pp.), including material under seal; ASCII disks. Clerk's transcript includes 18495 pages of juror questionnaires.
Sep 15 2004	Motion denied The Request for Order Permitting Appellate Counsel to View Sealed Juvenile File in Order to Determine Whether Potentially Meritorious Appellate Issue Exists and, if so, Have Sufficient Information to Present that Issue to This Court, filed on July 26, 2004, is denied. (See Pennsylvania v. Ritchie (1987) 480 U.S. 39, 59-61.)
Sep 16 2004	Appellant's opening brief filed (80,167 words; 214 pp.)
Sep 16 2004	Request for judicial notice filed (AA) appellant's request.
Sep 20 2004	Respondent's brief letter sent; due: September 15, 2005.
Sep 22 2004	Compensation awarded counsel Atty Spiegelman
Sep 29 2004	Compensation awarded counsel Atty Spiegelman
Aug 31 2005	Respondent's brief filed (23243 words; 77 pp.)
Aug 31 2005	Filed: Supplemental declaration of service of respondent's brief.
Oct 31 2005	Request for extension of time filed to file appellant's reply brief. (1st request)
Nov 1 2005	Extension of time granted to 12/30/2005 to file appellant's reply brief.
Dec 20 2005	Request for extension of time filed to file appellant's reply brief. (2nd request)
Dec 22 2005	Extension of time granted to 2/9/2006 to file the appellant's reply brief.
Feb 6 2006	Request for extension of time filed to file appellant's reply brief. (3rd request)
Feb 8 2006	Extension of time granted to 3/27/2006 to file appellant's reply brief. Extension is granted based upon counsel Paul J. Spiegelman's representation that he anticipates filing that brief by 3/27/2006. After that date, no further extension will be granted.
Mar 24 2006	Appellant's reply brief filed (27,529 words; 75 pp.)
Apr 11 2006	Compensation awarded counsel atty Spiegelman
Feb 26 2009	Exhibit(s) lodged People's exhibits, nos. 3 (a tape-recorded 911 call) and 3A (transcript).
Mar 13 2009	Oral argument letter sent advising counsel that the court could schedule this case for argument as early as the May calendars, to be held the week of May 4 and the week of May 25, 2009, in San Francisco. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument.
Mar 16 2009	Received: letter from Deputy Attorney General Jill Thayer, dated March 16, 2009, requesting that the case not be scheduled for oral argument on May 26, 2009.
Apr 22 2009	Case ordered on calendar to be argued Thursday, May 28, 2009, at 1:30 p.m., in San Francisco
Apr 27 2009	Received: appearance sheet from Deputy Attorney General Jill Thayer, indicating 20 minutes for oral argument for respondent.
May 4 2009	Received: appearance sheet from Attorney Paul Spiegelman, indicating 45 minutes for oral argument for appellant.
May 4 2009	Filed: appellant's focus issues letter, dated May 1, 2009.
May 15 2009	Request for judicial notice granted The request for judicial notice filed on September 16, 2004, is hereby granted.
May 28 2009	Cause argued and submitted
Jun 8 2009	Compensation awarded counsel Atty Spiegelman
Aug 12 2009	Notice of forthcoming opinion posted To be filed Thursday, August 13, 2009 at 10 a.m.
Aug 13 2009	Opinion filed: Judgment affirmed in full Majority Opinion by George, C.J. -----joined by Kennard, Baxter, Werdegar, Chin and Corrigan, JJ. Concurring and Dissenting Opinion by Moreno, J.
Aug 28 2009	Rehearing petition filed by appellant. (3,858 words; 13 pp.)

Briefs
Sep 16 2004	Appellant's opening brief filed (80,167 words; 214 pp.)
Aug 31 2005	Respondent's brief filed (23243 words; 77 pp.)
Mar 24 2006	Appellant's reply brief filed (27,529 words; 75 pp.)

Brief Downloads
Opening Brief.docx (309264 bytes)
Reply Brief.docx (112042 bytes)

If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website

May 14, 2010 Annotated by djwolff

FACTS: This case represents an automatic appeal from a judgment of death issued against Defendant Michael Matthew Martinez for the first degree murder of Lisa White and the premeditated attempted murder of Tara R. The jury found that the defendant personally used deadly weapons, including a hammer and a knife, in relation to the first degree murder charge. The jury also found that the defendant had inflicted great bodily injury in relation to the attempted murder charge. Furthermore, the jury found true the special circumstance that the “murder occurred while defendant was engaged in the commission, or attempted commission of, or flight after the performance of a lewd act upon a child under the age of 14 years….” The jury imposed a verdict of death for the first degree murder charge, “a sentence of life imprisonment for the attempted murder, two one-year terms of imprisonment for the weapons enhancements, and a three-year term for the great-bodily-injury enhancement.” In the Supreme Court, the Defendant challenged his conviction on several grounds. First, he alleged that the trial court failed to conduct a Marsden hearing and in failing to intervene to ensure that defense counsel was adequately responsive to complaints about Defendant’s representation. Second, Defendant argues that the trial court excluded several jurors for cause for that had not expressed “views concerning capital punishment that warranted their exclusion from the jury,” and that the trial court was biased against jurors who had reservations about the death penalty. Third, the Defendant argues that the trial court violated his due process rights by issuing a CALJIC No. 2.21.2 instruction that authorized the jury to reject the defendant’s whole testimony if they found he “willfully testified falsely on a material point.” Fourth, the Defendant argues that the Supreme Court erred in not granting his appellate counsel access to the juvenile records of one of the victims. Finally, the defendant broadly challenges the California death penalty statute as unconstitutional. PROCEDURAL HISTORY: The case represents an automatic appeal to the California Supreme Court from the Alameda County Superior Court’s conviction of first degree murder and death penalty sentence. ISSUES: The case is an automatic appeal from a judgment of death. HOLDING: The trial court’s judgment is affirmed in its entirety and the conviction is upheld. REASONING (George, C.J.) Marsden Inquiry: This claim is based on four letters writing by Defendant’s sister, Jessica Hutchinson, to the Superior Court alleging that Defendant’s attorney was failing to communicate adequately with Defendant. Defendant claims that under People v. Marsden (2 Cal.3d 118) these letters created a duty for the court to transport him to a hearing regarding these allegations. In this instance however, the majority holds that the trial court was under no duty to hold such a hearing as the Defendant never complained to the court regarding his counsel. In other words, the court is under no duty to respond to the complaints of a third party. Furthermore, even if there were such a duty, the letters never requested a substitution of counsel; instead, they merely raised a potential issue to the court’s awareness. As a result, there was no need to conduct a Marsden hearing regarding counsel substitution. Finally, the Defendant was himself in court on several subsequent occasions before the start of trial and he failed to use that opportunity to identify any potential issues with his representation. As a result, the trial court was under no duty to conduct a special hearing in his presence regarding a potential request for substitute counsel. Prospective Jurors: The Defendant challenges the trial court’s exclusion of a number of jurors based on their views concerning capital punishment. The Defendant contends that these jurors had indicated that while they were personally opposed to capital punishment, they would be willing to vote for it if the law and circumstances so required. The California Supreme Court began their discussion by outlining the general principles governing for-cause challenges to jurors based on their opposition to capital punishment. According to the U.S. Supreme Court, a “prospective juror’s personal views concerning the death penalty do not necessarily afford a basis for excusing the juror for bias.” Instead, “the law permits a prospective juror to be challenged for cause only if his or her views in favor or against capital punishment ‘would prevent or substantially impair the performance of his duties in accordance with instructions and the juror’s oath.’” (quoting Wainwright v. Witt, 469 U.S. 412, 424 (1985)). Furthermore, reviewing courts are to “defer to the trial court on the essentially factual question of the prospective juror’s true state of mind,” and review only on an abuse of discretion standard upholding the decision if it’s based on “substantial evidence.” The Defendant specifically challenged two potential jurors, B.S. and E.H., who had been struck by the court on admittedly close judgment calls. Nevertheless, after reviewing the entire voir dire record for each of the 150 potential jurors interviewed, the California Supreme Court upheld the trial court’s determinations, noting that the trial court had conducted a “careful voir dire,” “correctly enunciated the Witt standard,” and appeared to have based its opinions on the essentially unreviewable demeanor of the potential juror. The California Supreme Court also rejected the Defendant’s claim that the trial court had unfairly applied the Witt standard, granting more lenience to pro-death penalty jurors than to pro-life jurors. The Court noted that the trial courts have “wide discretion” in their conduct of voir dire and their decisions regarding a juror’s qualifications. The Court further noted that there is “nothing improper in the court’s explaining the law to the prospective juror, nor in its failing to engage in a similar dialogue with other prospective jurors whose voir dire did not give rise to the same concerns.” CALJIC Instruction No. 2.21.2: The Defendant challenges the use of Instruction No. 2.21.2, arguing that it violated his due process rights by shifting the burden of proof onto him. The Defendant argued that the instruction permitted the jury “to reject all of defendant’s testimony, even if that testimony raised a reasonable doubt as to some element of the charged offenses” based purely on his willful misstatements in other elements of his testimony. The California Supreme Court rejected this argument, noting that it had “rejected substantially identical attacks upon CALJIC No. 2.21.2 on many occasions, and decline to reconsider our conclusion.” Access to Juvenile Records: Defendant also argues that on appeal, his appellate counsel should have been given access to undisclosed elements of Tara R.’s juvenile dependency case file in order to determine if it contains material evidence. The California Supreme Court rejected this argument, noting that the defendant is only entitled to access evidence that is material, which occurs “only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). After reviewing the entire record itself, the California Supreme Court “concluded that the undisclosed information was not material to the defense.” As a result, the Defendant and his appellate counsel had no right to access it. Death Penalty Challenge: The court summarily dismissed Defendant’s challenge to California’s death penalty statute, noting that “[t]hese claims have been rejected in many prior decisions of this court, and defendant offers no persuasive groups for reconsideration.” Kennard, J., Baxter, J., Werdegar, J., Chin, J., Corrigan, J. joined. CONCURRING AND DISSENTING OPINION: (Moreno, J.) Justice Moreno concurred in the guilt and special circumstance findings, but dissented as to the penalty verdict. Justice Moreno argued that Prospective Juror E.H. was “improperly excused for cause” because despite her professed opposition to the death penalty, “she was able and willing to perform her duties as a juror in a capital case.” The dissenting opinion reviewed the relevant standards for excusing a juror for cause based on opposition to the death penalty. Agreeing with the majority, the dissent argued that the appropriate standard should be derived from Wainwright v. Witt, (469 U.S. 412) (1985); removal for cause is only permitted “when the juror’s views would ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’” Furthermore, while the trial court should be granted considerable deference to credibility determinations, the reviewing court’s analysis should focus on whether the trial court’s “findings are fairly supported by the record.” In this case, Justice Moreno argued that the trial court had erred in upholding the challenge for cause vis-à-vis Prospective Juror E.H. [“E.H.”] While she had initially indicated strong opposition to the death penalty, she had subsequently moderated her views to “moderate” opposition. More importantly, E.H. indicated that there were situations in which “she could vote in favor of the death penalty….” E.H. never indicated the type of strong moral reservations evinced by the other prospective jurors, nor did she ever indicate that her views would “preclude her from imposing [the death] penalty on a particular minority defendant when warranted by the facts.” As a result, according to Justice Moreno, the trial court committed a “Witt error by wrongfully excusing a prospective juror in a capital case” which “requires automatic reversal of the death judgment, but does not disturb the guilt and special circumstance verdicts.” Accordingly, Justice Moreno “would reverse the capital sentence and remand for a new penalty phase trial.” KEY TERMS: CALJIC No. 2.21.2, challenge for cause, constitutionality of death penalty statute, death penalty appeal, Marden Inquiry, Marsden Motion, Wainwright, Witt. ~Annotated by Dj Wolff, SLS 2010

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