IN THE SUPREME COURT OF CALIFORNIA
Plaintiff and Respondent,
RONALD WAYNE MOORE,
Defendant and Appellant.
Super. Ct. No. SS980646
Ronald Wayne Moore was convicted of and sentenced to death for the 1998
murder of 11-year-old Nicole Carnahan, which occurred during the commission of
burglary and robbery. (Pen. Code, §§ 187, 190.2, subd. (a)(17).) On automatic
appeal, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Guilt Phase Evidence
Rebecca Carnahan lived with her daughter, Nicole, on Middlefield Road in
Salinas. Defendant was their next-door neighbor. Carnahan was not friendly with
defendant, had never invited him into her home, and had told Nicole to ignore
Carnahan worked during the day; Nicole, 11 years old when she was killed,
took the bus to school and back. Nicole typically arrived home shortly after
3:00 p.m., let herself in with a front door key and, after changing her clothes, fed
the animals she was raising in the backyard, had a snack, and started her
homework. She always relocked the front door and had been told not to let
anyone in, but she did not always relock the back door after tending the animals.
On the day of her murder, March 4, 1998, Nicole left for school around
7:00 a.m., and Carnahan went to work an hour later. Before leaving, Carnahan
went into the backyard to feed the animals; at that time, she saw no holes in the
wood fence between her property and defendant‘s. At 2:15 p.m., a neighbor
noticed two or three boards were missing from the fence. When Carnahan
returned from work a little after 5:00 p.m., Nicole did not come out to the car to
greet her as usual and did not answer her knock at the front door, which
(unusually) was dead bolted.
Carnahan went around to the back door, which she found unlocked and
ajar. The house had been ransacked, ―turned upside down,‖ with things thrown
about and the telephone cords pulled from the walls. She did not see Nicole.
After less than a minute, Carnahan returned to the back door. She saw defendant
running away from her toward the back pasture, a bundle of some sort tucked
under his arm. She yelled after him, but he ran to a hole in the fence and went
through it. Through the fence she asked him what was going on and where Nicole
was, to which he eventually responded, ―I didn‘t do it.‖
After calling the police from a neighbor‘s house, Carnahan returned to her
backyard, where she again saw defendant through the fence. Asked if he had seen
Nicole, defendant replied that he had seen ―two Mexicans‖ in Carnahan‘s yard and
had tried to chase them away. While Carnahan waited by the road with neighbors
for the police to arrive, defendant approached (carrying a can of Budweiser Light
beer, the same brand Carnahan had had in her refrigerator) and told Carnahan that
he had gone to her house to ask Nicole for a glass of water because he did not have
A responding Monterey County deputy sheriff, Larry Robinson, followed a
trail in the unmown grass in Carnahan‘s yard, though the hole in the fence, to a
trailer in which he found defendant. Defendant said he had seen Nicole earlier at
her back door; she had given him a drink of water and caught him when he started
to fall. Robinson noticed a can of beer in defendant‘s trailer; it was cold to the
touch even though there was no electricity in the trailer. In defendant‘s yard
Robinson saw a guitar case, which drew his attention because, unlike the many
other objects lying around the yard, it was clean and unweathered.
Some minutes later, Deputy Robinson asked to interview defendant in his
patrol car, as defendant‘s trailer was cold and dark. Defendant agreed to be
interviewed. He told Robinson ―a couple of guys‖ had ―tried to rob‖ him; he had
heard from one neighbor of someone ―crawling around‖ in her backyard and from
another neighbor, Dennis Sullivan, that Sullivan had chased away two ―Mexican
guys‖ who had tried to break into his house.1 Defendant then saw the hole in
Carnahan‘s fence and went to warn her about the prowlers and to tell her about the
missing boards. Nicole gave him a drink of water and caught his arm when he
became dizzy. Later he saw a Mexican man in Carnahan‘s yard; the man ran off
when defendant called to him, and defendant, who could not run because of ―Lou
Gehrig‘s disease,‖ was unable to catch him. When Carnahan arrived in her
backyard, defendant urged her to call the sheriff‘s office. After the interview, as
defendant was still sitting in Robinson‘s patrol car, Carnahan began screaming.
Defendant first seemed to ignore her, then asked, ―Did they find her?‖
Sullivan testified he did not tell defendant two men had tried to break into
his house. Rather, he mentioned to defendant that a field worker looking for work
had knocked on his front window and looked in. Sullivan also testified defendant
had a butcher knife and a pipe-like cylinder with him when he came to Sullivan‘s
house on the afternoon of Nicole‘s death.
Defendant agreed to go to the sheriff‘s station and give a statement. At the
station, he repeated much of what he had told Deputy Robinson. He added that he
had talked to Nicole at Carnahan‘s back door and had not entered the house. He
gave a more detailed description of the ―Mexican‖ man he claimed to have seen in
Carnahan‘s backyard, specifying his hairstyle and clothing. He also said the
stranger had run toward the back of Carnahan‘s property, not toward the hole in
the fence along defendant‘s property line. Defendant also told the deputy he
carried a ―butcher‘s knife‖ in his waistband as well as a piece of pipe he called his
―club,‖ but he did not have the knife when he went to Carnahan‘s. When the
deputy told defendant Nicole had been killed and asked if he was responsible,
defendant said he could not have killed her because his degenerative muscular
illness made him too weak.2
Nicole‘s body was found stuffed between her bed and the wall of her
bedroom. She had suffered numerous wounds, the gravest of which were a four-
inch slash wound to her neck that severed her jugular vein and carotid artery (a
broken knife blade remained lodged in this wound), and a blunt force injury to her
head (inflicted by one extraordinarily heavy blow or by several strong blows) that
severely fractured her skull, resulting in laceration to her brain. Other injuries
included a set of lacerations on her face and head that were deep enough to reach
the underlying bone, a set of bruises on her face that could have been inflicted by
the piece of pipe defendant said he had been carrying earlier in the day of Nicole‘s
death, and a set of apparently defensive wounds on Nicole‘s hands and wrists.
The prosecution introduced evidence defendant had been seen walking,
riding a bicycle, doing pushups, and climbing into and out of a dumpster without
observable difficulty, but there was also evidence he sometimes used a cane,
walked ―hunched over,‖ and, in jail, used a wheelchair.
Nicole‘s blood was found spattered throughout her bedroom — on the wall,
ceiling, windowsill, furniture, bedclothes, carpet and other objects — although the
greatest concentration of blood was near her body. There was a single bloodstain
on the living room floor. Blood was also found in several areas and on objects in
defendant‘s trailer, including still damp blood on a broken cane, smears on a light
switch and in the bathroom, and on a poncho and a pair of gloves. DNA analysis
identified the blood as virtually certain to be Nicole‘s.
Carnahan identified numerous items taken from her house and found in
defendant‘s house or trailer, including several pieces of jewelry, an antique
pocketknife, food and beer, a lamp, a telephone and answering machine, $2 bills
she and Nicole had been saving, collectible coins, bottles of bubble bath, a guitar,
and stereo equipment.
On the afternoon of Nicole‘s murder, a woman visiting her daughter in
defendant and Carnahan‘s neighborhood saw a male ―Hispanic teenager‖ walking
in the street.
Analysis of defendant‘s blood and urine taken after his arrest indicated he
had consumed marijuana, cocaine, heroin, methadone and valium within hours or
days of the sample being taken. David True, an HIV-prevention educator with the
Monterey County AIDS Project, saw defendant about 5:00 p.m. on March 3, 1998,
the day before Nicole‘s murder. Defendant was agitated, under the apparent
influence of an opiate, and ―a little bit out of control.‖3
In rebuttal, a psychopharmacologist testified that the level of morphine
shown in defendant‘s blood analysis was ―not particularly high‖ for a regular
heroin user. From a review of defendant‘s arrest records and the pharmacology
report, the witness found no signs of drug-induced delirium or psychosis.
Penalty Phase Evidence
The People presented evidence of three prior incidents involving violence.
In 1983, defendant and others burglarized a wholesale nursery business. The
evidence suggested defendant shot twice at the owner before being shot by him.
In 1997, defendant accosted a man he knew outside a methadone clinic,
threatening him with a cane and a switchblade. Finally, in March of 1998, two
days before the capital crimes, one of defendant‘s neighbors heard him arguing
loudly with two women, then saw him pull and drag one of the women back to his
trailer when she started to leave.
Both Nicole‘s parents testified regarding Nicole‘s life, activities and hopes,
and the impact her death had had on them. A criminalist who had testified at the
guilt phase gave further testimony on the bloodstain and spatter evidence in
Nicole‘s bedroom. He concluded blows had been struck to Nicole‘s head both
near her closet and, possibly, in another corner of the room.
Louise Moore DeMateo, defendant‘s sister, described their generally happy
childhood, ending with defendant‘s heavy drug use, which began when he was 19
or 20 years old. She remained close to defendant and tried to help him, taking him
to methadone treatments and visiting him and his family during the time he lived
with his wife and children. After his marriage ended and his wife took custody of
the children, defendant lived in a trailer on his mother‘s Middlefield Road
property. He continued to use heroin and marijuana and developed a physical
disability that involved difficulty walking and maintaining his balance. Defendant
designated DeMateo his payee for disability benefits, but in the autumn of 1997 he
revoked that designation at the instigation of a woman named Ladell, who was
living with him. On Christmas Eve, 1997, DeMateo and defendant‘s mother, who
was not living on the property at the time, asked DeMateo to bring defendant some
food; she tried, but Ladell and others would not let her into the house until she
obtained the assistance of the sheriff‘s office.
Two of defendant‘s daughters testified to his care for them as small
children and their love for him.
Two experts, neurologist Arthur Kowell and neuropsychologist Dale
Watson, examined, tested and interviewed defendant. Kowell found evidence of
brain dysfunction in defendant‘s frontal and temporal lobes, which could cause
problems in emotional function, impulse control, memory, and the ability to
exercise the will to change. Watson‘s testing showed mildly impaired brain
function with a significant deficit in the ability to maintain attention. Though
these deficits did not cause defendant to kill Nicole, they could have influenced his
judgment and behavior, and his ability to organize and to make decisions.
Verdicts and Sentence
In the guilt phase, the jury returned verdicts of guilty on the charges of first
degree murder, burglary and robbery (Pen. Code, §§ 187, 189, 212.5, subd. (a),
459)4 and found true the allegations that the murder was committed during the
commission of first degree robbery and burglary (§ 190.2, subd. (a)(17)) and that
defendant used a deadly weapon in the commission of the murder and robbery
(§ 12022, subd. (b)). The court found true the allegation defendant had served two
prior prison terms. (§ 667.5, subd. (b).) In the penalty phase, the jury returned a
verdict of death. The court sentenced defendant to death for the murder and to a
prison term of 11 years four months on the remaining charges and allegations;
All further unspecified statutory references are to the Penal Code.
execution of the prison term was stayed pending execution of sentence on the
I. Motion to Suppress Defendant’s Statements to Police
Defendant moved to suppress statements he made to police, beginning with
those he made to Deputy Robinson in his patrol car and including those made en
route to and at the sheriff‘s station, on grounds he was in police custody but was
not advised of his rights before questioning, as required by Miranda v. Arizona
(1966) 384 U.S. 436 (Miranda). The trial court, finding defendant was not in
custody until he was formally arrested and given Miranda advisements, denied the
An interrogation is custodial, for purposes of requiring advisements under
Miranda, when ―a person has been taken into custody or otherwise deprived of his
freedom of action in any significant way.‖ (Miranda, supra, 384 U.S. at p. 444.)
Custody consists of a formal arrest or a restraint on freedom of movement of the
degree associated with a formal arrest. (People v. Leonard (2007) 40 Cal.4th
1370, 1400; People v. Boyer (1989) 48 Cal.3d 247, 271.) When there has been no
formal arrest, the question is how a reasonable person in the defendant‘s position
would have understood his situation. (Boyer, at p. 272.) All the circumstances of
the interrogation are relevant to this inquiry, including the location, length and
form of the interrogation, the degree to which the investigation was focused on the
defendant, and whether any indicia of arrest were present. (Ibid.)
―Whether a defendant was in custody for Miranda purposes is a mixed
question of law and fact. [Citation.] When reviewing a trial court‘s determination
that a defendant did not undergo custodial interrogation, an appellate court must
‗apply a deferential substantial evidence standard‘ [citation] to the trial court‘s
factual findings regarding the circumstances surrounding the interrogation, and it
must independently decide whether, given those circumstances, ‗a reasonable
person in [the] defendant‘s position would have felt free to end the questioning
and leave‘ [citation].‖ (People v. Leonard, supra, 40 Cal.4th at p. 1400.)
We examine in sequence each of the three sets of statements defendant
claims should have been excluded — those made in the patrol car parked at the
scene, in the patrol car en route to the sheriff‘s station, and in an interview room at
the sheriff‘s station.
A. Patrol Car Interview
Sheriff‘s Deputy Robinson testified that after he talked briefly with
defendant at defendant‘s trailer and searched the trailer, he asked if defendant
would talk with him further in the deputy‘s patrol car. Deputy Robinson chose the
patrol car over defendant‘s residence because night was beginning to fall, it was
getting cold and dark, and the trailer had no electricity. Defendant agreed.
Robinson was in uniform and carrying a firearm, but he did not draw his weapon
or handcuff or patsearch defendant before interviewing him in the patrol car.
Defendant was not a suspect; Robinson considered him an important witness
because he had said he had seen the victim that afternoon. Though the back doors
of the patrol car automatically locked when closed, defendant would have been
permitted to leave had he sought to do so.
At the beginning of the taped interview, defendant said that he ―would
invite you guys in if I had, uh, had power.‖ He seated himself in the vehicle‘s
backseat and asked for the windows to be rolled up. Before he was even asked a
question, defendant volunteered that a neighbor, Ms. Hooper, had ―seen somebody
. . . crawling around in the back‖ at night. Deputy Robinson then questioned
defendant about when he noticed the fence boards were missing, what Dennis
Sullivan had told him about ―two Mexican guys‖ on Sullivan‘s property,
defendant‘s contact with Nicole when he went to warn Carnahan about the
prowlers and the missing boards, and the man he had seen in Carnahan‘s
backyard. None of Robinson‘s questioning contained express or implied
accusations against defendant.
At the conclusion of the interview, which lasted less than 15 minutes,
Robinson told defendant he appreciated his cooperation and asked him to ―hang
tight‖ for a short time. Robinson left the car. When he returned a few minutes
later, defendant was still sitting in the backseat, but the door was open.
Defendant‘s feet were outside the car, and he was smoking a cigarette.
That the patrol car interview was not custodial is clear. Defendant‘s
participation was requested and readily given. The location was chosen because
the alternative, defendant‘s residence, was cold and dark; defendant himself
agreed it was not suitable. No indicia of arrest were present. Defendant was
neither searched nor handcuffed. No evidence indicated he knew the car doors
were locked, and the windows were closed only at his request; later a back door
was opened, and defendant partly exited to smoke a cigarette. The interview itself
was short, and the questions focused on information defendant had indicated he
possessed rather than on defendant‘s potential responsibility for the crimes.
Nothing in the interview or its circumstances, in short, would have led a
reasonable person to think he was not free to end the questioning and leave.
(People v. Leonard, supra, 40 Cal.4th at p. 1400.)
B. Conversation en Route to Sheriff’s Station
After defendant, sitting in the patrol car‘s backseat with the door open, had
smoked a cigarette, sheriff‘s investigator John Hanson approached to speak with
him. Hanson confirmed that defendant had seen the victim earlier that day and
asked: ―[W]ould you volunteer to come down to the station and talk to me? I
need to take a real detailed statement about it.‖ Defendant asked, ―Right now?‖
and, when Hanson answered affirmatively, further asked, ―[C]an we do it in the
morning?‖ Hanson responded, ―No, we have to do [it] now.‖ Hanson twice
assured defendant he would be given a ride back home, and defendant said,
―Okay‖ and ―Very good.‖
Sheriff‘s Deputy Michael Shapiro then drove defendant to the station, using
the same patrol car in which defendant had been interviewed. He did not handcuff
or patdown defendant before they both got into the vehicle. Shapiro did not
attempt to interview defendant while transporting him, but the two did engage in
conversation. Just as they left the scene, defendant asked why Carnahan was
screaming, to which Shapiro answered he did not know. Defendant observed
Carnahan had been upset at the length of time the sheriff‘s department had taken
in responding to her call, and Shapiro noted that ―she really gave me a hard time‖
on a previous occasion, when he had responded to a call on a domestic matter.
Defendant said he had been getting along ―pretty good‖ with Carnahan, but that
she had a temper, which he had heard displayed in arguments with her boyfriend,
Mike. The arguments, defendant suggested, were prompted by a ―Black guy‖
renting a unit in the back of Carnahan‘s property. Without being questioned,
defendant also mentioned that Dennis Sullivan had said two men had tried to rob
him, that there were ―a couple of guys going around doing burglaries,‖ that he,
defendant, always tried to get along with his neighbors and was unable to run and
lift heavy objects because of Lou Gehrig‘s disease, and that Nicole ―seemed all
right‖ when he saw her earlier that day.
Beyond that, the conversation ranged over several topics, including
Sullivan‘s business and back problems, defendant‘s previous burglary sentence
and the shooting injury he had sustained during the burglary (a topic defendant
raised), the prognosis for defendant‘s illness, an AIDS test defendant had just had,
and how defendant kept food fresh without electricity (in a small ice chest). At
one point, defendant asked Shapiro for an assurance he would not have to walk
back from the sheriff‘s station; Shapiro answered, ―Oh, no. No-no-no-no-no.
We‘ll give you a ride back.‖ On arriving at the station, defendant asked, ―You
guys just want a statement?‖ Shapiro answered, ―Yeah,‖ and ―They‘re just going
to talk to you, that‘s all.‖ Defendant said, ―Okay.‖
As with the patrol car interview, Deputy Shapiro‘s conversation with
defendant en route to the station was plainly not a custodial interrogation. There
were, as before, no indicia of arrest. Defendant had told several people, including
Deputy Robinson and investigator Hanson, that he had seen the victim in the
afternoon, not long before she was killed. Obviously an important witness,
defendant was asked to go to the station voluntarily to give a statement. Though
he apparently would have preferred doing so later, he acceded to Hanson‘s
reasonable explanation that time was of the essence. His only other reservation —
the need for assurance he would be given transportation home when finished —
having been satisfied, he agreed. Deputy Shapiro did not interrogate defendant
during the ride; defendant was at the least an equal partner in initiating and
maintaining the conversation, which ranged widely in subject matter. On arriving
at the station, defendant sought confirmation that the officers only wanted a
statement and would drive him home afterward. Receiving that confirmation, he
again agreed to give the statement. Nothing indicates defendant thought he was
not free to leave during the ride to the station, and no reasonable person would
have thought so in these circumstances.
C. Sheriff’s Station Interview
On arriving at the station, Deputy Shapiro escorted defendant to the
investigations section. Defendant was taken to an interview room, where he was
interviewed by investigator Hanson, later joined by investigator Ed Lorenzano.
The interview was audio- and videotaped. Hanson testified defendant was not
handcuffed or otherwise restrained and he, Hanson, was not wearing a gun. The
interview room door locked automatically when closed, but Hanson recalled
investigator Lorenzano, who came and went during the interview, either left his
keys in the door or placed a wedge to keep it from closing and locking.
After getting some background information about defendant, Hanson
opened the interview by reiterating that defendant was ―not under arrest or
anything‖ and was there only to make a statement because he was the last person
known to have seen the victim. Defendant said he understood he was not under
arrest, and Hanson repeated that defendant had been brought to the station only for
a statement and was ―free to go or whatever.‖
Hanson questioned defendant about Carnahan and Nicole, defendant‘s
earlier meeting with Dennis Sullivan, his visit to the Carnahan residence, and his
interaction with Nicole. As in the patrol car interview with Deputy Robinson,
defendant said Sullivan had told him of an attempted burglary, he noticed the
missing fence boards, and at 2:00 or 2:30 p.m. he went to Carnahan‘s to warn her.
Nicole answered the door, defendant asked for a drink of water, which Nicole
gave him, he stumbled and she ―caught‖ him. Defendant told her he needed to
talk to her mother when she came home, then went back to his trailer. About a
half hour later, he saw a man running in Carnahan‘s backyard and gave chase
unsuccessfully; at that point Carnahan came home.
When investigator Lorenzano joined the interview, the questioning went
over much the same ground again, with defendant giving more detail about the
―Mexican‖ man he had seen in Carnahan‘s backyard. The detectives asked about
events after Carnahan returned and before the first officers arrived, including a fall
defendant took in which he claimed he sustained a visible injury to his elbow.
Eventually, Hanson asked defendant about his drug use and any past
arrests. Defendant admitted some arrests and related, as he had to Deputy Shapiro,
the circumstances of his 1983 shooting injury during an attempted commercial
burglary. Hanson asked, ―Now, how do I know that — that you didn‘t burglarize
this house next door?‖ Defendant said his disability physically prevented him
from doing so, and when Hanson asked directly, ―Did you burglarize the house?‖
defendant denied it. The detectives then suggested he might have needed money
for heroin and asked if he had any money. Hanson urged him to tell them the
truth, to which defendant replied he was doing so and he would never burglarize a
After some discussion of Carnahan‘s personal life, defendant‘s relationship
with her (defendant said they had had a talk about a week earlier about
―boyfriends and girlfriends‖) and defendant‘s encounter with a man in Carnahan‘s
backyard, Hanson asked a series of questions suggesting defendant might have
been in the Carnahan house that day and might know what happened to Nicole.
On defendant‘s denial, Hanson seemed to back off, but soon began questioning
defendant about any weapon he might have had with him when he went to the
Carnahan house; defendant admitted having a ―stout stick‖ that he always carried.
Hanson told defendant Nicole had been killed and that ―this is the time for
you to be honest with me.‖ When defendant denied knowing anything about
Nicole‘s death, the detectives asked him about the knife he was wearing when he
saw Dennis Sullivan that afternoon. Defendant said he left it at his trailer after
that; Hanson asked for permission to search the trailer, but defendant said he
would get it for them instead. When Lorenzano suggested defendant must still
have had the knife at Carnahan‘s, defendant said, ―You guys are trying to trick me,
you know.‖ The following colloquy ensued:
―Hanson: We just want to make sure that you didn‘t break into that house.
―[Defendant]: I didn‘t break into it.
―Hanson: Okay. And then while you were in the house maybe, uh, maybe
Nikki surprised you and because you carried that knife with you—You were seen
earlier. You didn‘t want to get caught, so, you hurt Nikki. And maybe in the
process of hurting Nikki, you didn‘t mean to hurt her as bad as you did.
―Hanson: And, uh, and—
―[Defendant]: Am I under arrest?
―Hanson: No, you‘re not under arrest.
―[Defendant]: I‘d like to . . . (Tape Inaudible) . . . Can I get a ride home
please? I‘ve told you everything I know.
―[Defendant]: I‘ve told you the best I can, and you—you‘re trying to twist
words. I‘m being honest with you.
―Hanson: Well, you can see where we‘re—we‘re, you know, we‘re a little
suspicious, you know—
―Hanson: Because of, um, uh, you were seen with that knife.‖
Hanson again suggested defendant might have sought money for his
addiction and perhaps ―didn‘t mean to harm anybody.‖ Defendant said he was
physically incapable of attacking anyone; the detectives questioned how, then, he
could have pursued the ―Mexican guy‖ in Carnahan‘s backyard. Defendant
accused the detectives of trying to trick him, which they denied. The conversation
continued as follows:
―[Defendant]: Yeah, you guys are. Man I—Can I get a ride home please?
Can I please get a ride home? You going to charge me or what, you know? I got
my rights. I‘m not on pro—I‘m not on probation.
―[Defendant]: I told you everything I know, you know.
―[Defendant]: I‘ll give you my doctor—I‘ll give you my doctor‘s . . .
address and name. You can call up him, and he‘ll tell you how messed up I am,
[¶] . . . [¶]
―Hanson: You‘re the last one to see Nikki, you know, uh—
[¶] . . . [¶]
―[Defendant]: How do you know that? Because I volunteered and told you
[¶] . . . [¶]
―[Defendant]: Yeah, not because you guys tricked me into say [sic] it. You
guys going to give me a ride home, or am I going to have to walk home like I
always do when I come down here to—to—be honest with you. . . . (Tape
―Hanson: Well—well, what I‘m going to have—to ask you to do, Ron—
―Hanson: Have a seat here.‖
Hanson then asked defendant ―to voluntarily give us your clothes‖ to be
checked for trace evidence. In exchange defendant would get a jumpsuit to wear
home. Defendant agreed. While they waited for the lab technician to come, the
detectives continued to question defendant, who continued to deny involvement.
Defendant at one point asked who was going to take him home, to which Hanson
replied, ―We will as soon as we grab your clothes.‖ Lorenzano asked defendant
whether anyone else had been at his trailer that day. Defendant said his girlfriend
had not been there because they had had ―a little fight.‖ In answer to further
questions, he explained that the knife he had been carrying was one of a set of
seven kitchen knives his mother owned. The lab technician then took defendant‘s
clothes and photographed his body, with special attention to scratches and bruises
the detectives pointed out (and which defendant said were from falls or needle
Hanson again asked defendant if he had been in the Carnahan house or was
involved in Nicole‘s death, and defendant denied both. He asked defendant to
take a seat and assured him he would be ―out of here . . . [a]s soon as I get this
patrol guy to take you back again.‖ Hanson then asked a few questions about
defendant‘s family, clothing (defendant said he had changed from a sweatshirt to a
jacket earlier), and drug and alcohol use that day (defendant said he had had a
couple of beers but no heroin or methadone). Hanson said he would either give
defendant a ride back or ―get this, uh, patrolman‖ to do so.
After a few more questions about defendant‘s visit that day with Dennis
Sullivan, Lorenzano called Hanson out of the room. Hanson testified that
Lorenzano conveyed to him information gathered at the crime scene that linked
defendant to the crime, including that property from the Carnahan residence had
been found on defendant‘s property. On returning to the interview room, Hanson
asked if they could have a technician come in and swab defendant‘s hands.
Defendant said he wanted to ―go home right now‖ and, when asked if he would
stay voluntarily a little longer to talk to other officers, he refused.
Hanson then told defendant he could not go home and read defendant the
Miranda advisements. Defendant said he would talk to the other officers when
they arrived. After the lab technician took some hair samples, Hanson and
Lorenzano engaged defendant in another round of accusatory questioning.
Defendant barely responded to the questions, continuing to deny any involvement.
Eventually he said, ―I want to talk to a lawyer.‖ Hanson said, ―That‘s the magic
word‖ and stopped questioning defendant.
We agree with the trial court that the sheriff‘s station interview did not, in
its entirety, constitute custodial interrogation. As already discussed, defendant, the
last person known to have seen the victim and obviously an important witness,
was asked — and freely agreed — to come to the station to give a statement. In
context, Hanson‘s statement that ―we have to do [it] now‖ rather than the next day
clearly referred only to the importance of getting information promptly and did not
convey a command that defendant go to the station. On arriving at the station,
defendant asked whether, and was again assured, he was there only to give a
statement. Once in the interview room at the station, Hanson expressly told
defendant he was not under arrest and was free to leave. Defendant said he
understood. Defendant was not handcuffed or otherwise restrained, and there was
no evidence the interview room door was locked against his leaving. The
interview was fairly long — one hour and 45 minutes — but not, as a whole,
particularly intense or confrontational. The interview focused, initially, on
defendant‘s encounter with Nicole, the missing fence boards, and information
defendant might have had about the man he reported seeing in Carnahan‘s
backyard or others connected with Carnahan. For a substantial period, while
defendant filled in his previous statements with details, the questioning did not
convey any suspicion of defendant or skepticism about his statements.
After a while, to be sure, the detectives interjected some more accusatory
and skeptical questions, with Hanson asking defendant straight out, ―Did you
burglarize the house?‖ and, later, urging him to begin being ―honest with me.‖
The detectives‘ questions about defendant‘s prior arrests, drug use, need for
money, and carrying of a knife and other weapons on the day of the crimes
conveyed their suspicion of defendant‘s possible involvement. But Miranda
warnings are not required ―simply because the questioning takes place in the
station house, or because the questioned person is one whom the police suspect.‖
(Oregon v. Mathiason (1977) 429 U.S. 492, 495, italics added.) While the nature
of the police questioning is relevant to the custody question, police expressions of
suspicion, with no other evidence of a restraint on the person‘s freedom of
movement, are not necessarily sufficient to convert voluntary presence at an
interview into custody. (See id. at pp. 493-495 [no custody where defendant
agreed to interview at police station, was told in interview that the police
suspected him of a burglary and told (falsely) his fingerprints had been found at
the scene, but was allowed to leave at conclusion of interview].) At least until
defendant first asked to be taken home and his request was not granted, a
reasonable person in defendant‘s circumstances would have believed, despite
indications of police skepticism, that he was not under arrest and was free to
terminate the interview and leave if he chose to do so.
People v. Boyer, supra, 48 Cal.3d 247, on which defendant relies, is readily
distinguishable. The defendant there was a suspect when he was first contacted,
and he was stopped by the police as he left his house by the back door, other
officers having sought entry at the front door. (Id. at p. 263.) Although the
defendant was asked, and agreed, to ―voluntarily‖ go to the police station for an
interview, once at the station he was given Miranda advisements, directly accused
of having committed the homicide under investigation, and repeatedly told that the
police had evidence of his guilt of which he was unaware and that he would not be
able to live with his guilt unless he confessed. (Boyer, at pp. 264-265.) Several
times the defendant asked whether he was under arrest and said he wanted a
lawyer and did not wish to speak further, but the police interrogator ignored these
remarks and continued questioning him. (Id. at p. 265.) We held this set of
circumstances — the manner in which the police ―accosted‖ the defendant at his
home (id. at p. 268), their administration of Miranda advisements at the
interrogation‘s outset, the defendant‘s being subject to ―more than an hour of
directly accusatory questioning‖ (Boyer, at p. 268) in which he was falsely told the
police had the evidence to prove his guilt, and the officers‘ response to the
defendant‘s questions about arrest — showed he had in fact been arrested, making
his interrogation custodial for Miranda purposes (Boyer, at p. 272).
Defendant, in contrast, was first contacted as a witness with potentially
important information about the burglary of his neighbor‘s house and the possible
abduction of a child, rather than as a homicide suspect. (When Deputy Robinson
first contacted defendant at his trailer and interviewed him in the patrol car,
Nicole‘s body had not yet been found.) From the time defendant was asked to
come to the sheriff‘s station through the first portion of the interview, the police
consistently conveyed to defendant that they wanted to question him only as a
witness; defendant sought and received the assurance that he was being asked only
to give a statement of what he had seen and heard that day. Even when the
interviewers began to express some skepticism about defendant‘s statements, they
did not claim to know he was guilty or, until the point investigator Hanson
expressly arrested him, to have evidence of his guilt. Unlike the defendant in
Boyer, moreover, defendant was not detained while trying to leave his house, nor
did the police repeatedly ignore statements that he wanted a lawyer and did not
want to talk to them further.
People v. Aguilera (1996) 51 Cal.App.4th 1151 is similarly distinguishable
on its facts. There police, on information of the defendant‘s involvement in a
gang-related homicide, went to his house and asked him and his mother if the
defendant would talk to them at the station about the killing and for consent to
search the house for evidence of homicide and gang involvement. (Id. at p. 1159.)
At the station, police conducted an interrogation the appellate court described as
―intense, persistent, aggressive, confrontational, accusatory, and, at times,
threatening and intimidating.‖ (Id. at p. 1165.) The officers repeatedly told the
defendant they had evidence of his involvement and that the interview would end
only when he told them the ―truth,‖ conveying, in context, the message that the
defendant would be interrogated until he admitted his involvement in the crime.
(Id. at pp. 1163-1164.) Without belaboring the point, none of these circumstances
were present in the case at bench.5
We need not decide whether the interview became custodial when
defendant asked to end the interview and go home, but was not given the
transportation he had been promised. Defendant made no statements of any
significance after that point, largely repeating his earlier responses. Defendant
argues admission of the interview was prejudicial because the prosecution used his
exculpatory statements made during the interview to rebut his claim of an
impaired mental state, but he points to no such statements that he first made after
Defendant also cites United States v. Lee (9th Cir. 1982) 699 F.2d 466.
There the appellate court, reviewing under a deferential standard the trial court‘s
implied finding the defendant was in custody, in a police car, at the time he
confessed, affirmed the district court‘s ruling suppressing the confession. (Id. at
p. 468.) While there may have been a ―reasonable view of the evidence‖ (ibid.)
supporting the custody finding in Lee, the decision is not persuasive under the
standard of review we apply here; as explained earlier, we must determine
independently whether a reasonable person in defendant‘s circumstances would
have believed himself free to end the interview and leave. (People v. Leonard,
supra, 40 Cal.4th at p. 1400.) Here the trial court found defendant was not in
custody, and we reach the same conclusion on our independent evaluation of the
circumstances surrounding the sheriff‘s station interview.
he sought to end the interview and be driven home. Any error in not suppressing
the last part of the taped sheriff‘s station interview would, therefore, be harmless
beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)
II. Admission of Expert Opinion Regarding Bloodstain in the Living
Defendant contends the trial court prejudicially erred by allowing a
criminalist to testify that if a bloodstain found on the Carnahans‘ living room
carpet was deposited by a person, the person must have been lying down rather
than standing up. We agree the prosecutor‘s hypothetical question was improper,
as there was no evidence the stain was deposited from a person rather than an
object that had been in contact with a person, but do not agree admission of the
evidence was prejudicial.
During the prosecution‘s case, criminalist Gene Avilez described a small
bloodstain on the living room carpet, the only bloodstain found in that room.
(Nicole‘s body was found in her bedroom, where there were numerous bloodstains
on objects in various parts of the room.) Over defense objections of lack of
foundation and of prejudicial effect outweighing probative value (Evid. Code,
§ 352), Avilez was permitted to answer this hypothetical question from the
prosecutor: ―If you assume that that bloodstain was deposited by a human being,
do you have an opinion as to whether or not the individual would have been
standing or either lying down or very close to the carpet at the time that bloodstain
was deposited?‖ The witness opined the person ―was either at or near the surface
of the carpeting‖ at the time. But on cross-examination by the defense, as in the
hearing on admissibility, Avilez testified he could not determine whether the stain
had been deposited from a person or from an object.
This court recently summarized the relevant limits on hypothetical
questions to expert witnesses. ― ‗Generally, an expert may render opinion
testimony on the basis of facts given ―in a hypothetical question that asks the
expert to assume their truth.‖ [Citation.] Such a hypothetical question must be
rooted in facts shown by the evidence, however. [Citations.]‘ [Citation.] It is true
that ‗it is not necessary that the question include a statement of all the evidence in
the case. The statement may assume facts within the limits of the evidence, not
unfairly assembled, upon which the opinion of the expert is required, and
considerable latitude must be allowed in the choice of facts as to the basis upon
which to frame a hypothetical question.‘ [Citation.] On the other hand, the
expert‘s opinion may not be based ‗on assumptions of fact without evidentiary
support [citation], or on speculative or conjectural factors . . . . [¶] Exclusion of
expert opinions that rest on guess, surmise or conjecture [citation] is an inherent
corollary to the foundational predicate for admission of the expert testimony: will
the testimony assist the trier of fact to evaluate the issues it must decide?‘
[Citation.]‖ (People v. Richardson (2008) 43 Cal.4th 959, 1008, italics added.)
The record contains no evidence the living room bloodstain was deposited
directly from Nicole‘s wounds, rather than from, for example, a weapon used to
attack her. Avilez could not answer how it was deposited, and the Attorney
General points to nothing beyond his testimony to support the hypothetical
question‘s assumption. For that reason, the premise of the prosecutor‘s
hypothetical question was not rooted in the facts shown by the evidence; rather, it
was an ― ‗assumption of fact without evidentiary support.‘ ‖ (People v.
Richardson, supra, 43 Cal.4th at p. 1008.) The hypothetical question thus called
for an opinion without adequate foundation.
As the concurring and dissenting opinion points out, trial courts enjoy a
measure of latitude in determining the permissible scope of expert testimony; a
ruling on admissibility of such evidence under Evidence Code section 352 is
reviewed under an abuse of discretion standard. (People v. Richardson, supra, 43
Cal.4th at p. 1008.) But when the proposed expert testimony rests on an
assumption without any support in the trial evidence, the court does abuse its
discretion in admitting it. Such testimony has little or no probative value, bears
the potential to mislead the jury into accepting the unsupported assumption and
drawing from it unwarranted conclusions, and thus cannot significantly ―help the
trier of fact evaluate the issues it must decide.‖ (Conc. & dis. opn. of Kennard, J.,
post, at p. 2.)
The concurring and dissenting opinion argues the disputed question‘s
assumption, that Nicole directly deposited the bloodstain in the living room, can
be deduced from the fact Nicole ―could have been‖ in the living room at some
point during the attack. (Conc. & dis. opn. of Kennard, J., post, at p. 3.) That an
event could have happened, however, does not by itself support a deduction or
inference it did happen. From the existence of a single small bloodstain in
Nicole‘s living room one might speculate she was attacked in that room, but one
might equally well speculate the blood dripped from defendant or his weapon as
he left after murdering her in her bedroom. Jurors should not be invited to build
narrative theories of a capital crime on speculation.
Defendant contends admission of this evidence was prejudicial because it
allowed the prosecutor to suggest, in guilt phase argument, that defendant had first
encountered Nicole in the living room, knocked her down, and then, after a pause,
pursued the attack in her bedroom. The prosecutor thus “conjure[d] a vivid and
unsettling image of Nicole lying on the floor in a pool of blood and ma[d]e it into
the turning point of the crime.‖
In light of all the evidence and instructions, we do not agree the error was
prejudicial. From defense counsel‘s cross-examination, the jury knew that the
living room bloodstain might as likely have been deposited from an object as from
Nicole, making it arguably insignificant. Indeed, the jury was instructed it was for
them to determine whether the facts assumed in a hypothetical question had been
proved and that they could consider any failure of such proof in evaluating the
value and weight of the expert‘s opinion.
More important, the evidence of Nicole‘s numerous wounds and the blood
prolifically deposited in her bedroom, independent of the small bloodstain in the
living room, told the story of an extraordinarily brutal attack. Even without
consideration of the living room bloodstain, the jury would have learned
defendant, an adult man, repeatedly beat the 11-year-old victim on the head and
face with one or more blunt objects and cut her neck with a knife, leaving the
broken blade in the wound, so that he could steal from her and her mother. The
blood deposited throughout Nicole‘s bedroom, the force with which the most
serious wounds were inflicted, the defensive wounds on Nicole‘s hands and wrists,
and the fact defendant at some point in the attack must have switched weapons all
pointed to a determined, cruel and extended assault on a weaker, unarmed victim.
In light of that evidence, that the jury would have reached a different verdict in the
guilt phase absent the erroneous admission of Avilez‘s answer about the living
room bloodstain is not reasonably probable. (People v. Watson (1956) 46 Cal.2d
818, 836.) Nor is it reasonably possible the jury‘s penalty choice turned on this
relatively minor aspect of the evidence. (People v. Ashmus (1991) 54 Cal.3d 932,
Defendant also contends the admission of what he argues was highly
prejudicial evidence violated the Eighth and Fourteenth Amendments to the
United States Constitution. Acknowledging he did not object on this ground
below, defendant argues his Evidence Code section 352 objection was sufficient to
preserve the constitutional issues under the analysis of People v. Partida (2005) 37
Cal.4th 428. He is correct. As in Partida, defendant argues the trial court erred in
overruling his Evidence Code section 352 objection and the error was so serious as
to violate due process. (Partida, at pp. 436-438.) The Eighth Amendment
(footnote continued on next page)
III. Sufficiency of Evidence to Prove Burglary and Robbery
Defendant contends the evidence was constitutionally insufficient to show
he formed the intent to take property from the Carnahans before entering their
house, as required to prove burglary, or before attacking and killing Nicole, as
required to prove robbery. He argues on this ground that the convictions for those
felonies as well as the first degree murder conviction and the felony-murder
special-circumstance findings must be reversed.
Observing that he could have gone to Carnahan‘s house earlier, when no
one was home, and that he seemingly failed to plan thoroughly what items he
would take from the Carnahans and how he would transport the items to his
property, defendant argues ―it is just as likely that [Nicole‘s killing] was the result
of a spontaneous explosion of violence, with any theft as an afterthought, rather
than [defendant‘s] entering the Carnahan house with the intent to steal.‖
We disagree. While no direct evidence indicated defendant formed the
intent to steal before going to Carnahan‘s house, the circumstantial evidence was
more than sufficient. From the prosecution evidence, the jury could reasonably
infer that defendant, a heroin addict without the money to pay his electricity bill,
prearranged a passage to and from his neighbor‘s backyard by removing the fence
boards, armed himself with a knife and metal pipe, and donned gloves before
going to Carnahan‘s house. He then used the weapons he had brought to attack
(footnote continued from previous page)
argument merely adduces another consequence, unreliability of the verdicts, to the
error. We do not, however, discern a constitutional violation in allowing the
criminalist to give an answer that — as defense counsel showed on cross-
examination — was insignificant because it was based on an unproven hypothesis.
Any constitutional error would, moreover, be harmless beyond a reasonable doubt
(Chapman v. California, supra, 386 U.S. at p. 24) for reasons explained in the
Nicole, ransacked the Carnahan home, taking numerous items large and small, and
began moving that property through the fence opening he had made, a process
Carnahan interrupted when she came home. The evidence suggested no motive,
spontaneous or otherwise, for defendant to attack and kill Nicole, other than to
facilitate his theft. That defendant might have planned the burglary better did not
negate or even vitiate the force of the inferences the jury could reasonably draw;
poor planning was not inconsistent with what the guilt phase jury knew of
defendant‘s mental state and lifestyle.
Having ―review[ed] the entire record in the light most favorable to the
prosecution to determine whether it contains evidence that is reasonable, credible,
and of solid value, from which a rational trier of fact could find the defendant
guilty beyond a reasonable doubt‖ (People v. Kipp (2001) 26 Cal.4th 1100, 1128),
we conclude a rational jury could find, beyond a reasonable doubt, that defendant
entered the house with the pre-formed intent of taking property from the
Carnahans and attacked Nicole to facilitate that plan. Substantial evidence thus
supports the burglary and robbery convictions and the felony-murder theory of
first degree murder. Substantial evidence also supports the finding, required for
proof of the felony-murder special-circumstance allegations, that defendant had an
independent felonious purpose for the burglary and robbery, that is, the theft was
not merely incidental to his murder of Nicole. (People v. Tafoya (2007) 42
Cal.4th 147, 171.) Finally, the evidence supporting the murder conviction and
special circumstance findings was not so equivocal or unreliable as to render
the death penalty violative of defendant‘s Eighth Amendment rights.
IV. Failure to Instruct on Theft as a Lesser Offense
Defendant contends he was denied his federal and state constitutional rights
to due process, a jury trial, and reliable guilt and death penalty verdicts by the trial
court‘s failure to instruct the jury, sua sponte, on theft as a lesser included offense
of robbery. He relies on the same theory of after-formed intent to steal as in his
previous claim attacking the robbery and burglary convictions.
Instruction on a lesser included offense is required only when the record
contains substantial evidence of the lesser offense, that is, evidence from which
the jury could reasonably doubt whether one or more of the charged offense‘s
elements was proven, but find all the elements of the included offense proven
beyond a reasonable doubt. (People v. Hughes (2002) 27 Cal.4th 287, 365; People
v. Breverman (1998) 19 Cal.4th 142, 162.)
As explained in the previous part, no evidence supports the theory of after-
formed intent to steal. Defendant points to nothing in the record suggesting any
motive for him to attack and kill Nicole other than to facilitate the theft. Mere
speculation that he might have killed out of some other, spontaneous and violent
impulse is not sufficient to warrant the instruction. (People v. Zamudio (2008) 43
Cal.4th 327, 361.) In the absence of substantial evidence from which the jury
could have found defendant guilty of theft as a lesser included offense to robbery,
no such instruction was warranted.
V. Instructions on Deciding Degree of Murder and Between Murder
The jury was instructed on first degree murder (on theories of felony
murder and premeditation), second degree murder (with malice aforethought but
without premeditation) and on involuntary manslaughter (where malice is lacking
due to intoxication). They were further instructed that if they found defendant
guilty of murder they must determine the degree. The court continued, using the
current version of CALJIC No. 8.71 (6th ed. 1996): ―If you are convinced beyond
a reasonable doubt and unanimously agree that the crime of murder has been
committed by a defendant, but you unanimously agree that you have a reasonable
doubt whether the murder was of the first or of the second degree, you must give
defendant the benefit of that doubt and return a verdict fixing the murder as of the
second degree.‖ (Italics added.)
With regard to the lesser included offense of manslaughter, the court, using
the current version of CALJIC No. 8.72 (6th ed. 1996), instructed: ―If you are
convinced beyond a reasonable doubt and unanimously agree that the killing was
unlawful, but you unanimously agree that you have a reasonable doubt whether
the crime is murder or manslaughter, you must give the defendant the benefit of
that doubt and find it to be manslaughter rather than murder.‖ (Italics added.)7
Defendant contends these instructions, in their above italicized parts,
violated his constitutional due process and jury trial rights by suggesting to jurors
that they must return a verdict on the greater offense unless they unanimously
doubted whether it had been proven. As defendant puts it, ―a juror who believed
that [defendant] was guilty of some offense, but not necessarily first degree
murder, would also believe that first degree murder must apply in the face of any
disagreement. In other words, first degree murder became the default verdict.‖
Prior to revision in 1996, neither instruction required unanimity on
reasonable doubt as to the greater offense in order for a juror to give the defendant
the benefit of such a reasonable doubt. CALJIC No. 8.71 (5th ed. 1988) stated:
―If you are convinced beyond a reasonable doubt that the crime of murder has
been committed by a defendant, but you have a reasonable doubt whether such
murder was of the first or of the second degree, you must give defendant the
benefit of that doubt and return a verdict fixing the murder as of the second
degree.‖ (Italics added.) Similarly, CALJIC No. 8.72 (5th ed. 1988) stated: ―If
you are satisfied beyond a reasonable doubt that the killing was unlawful, but you
have a reasonable doubt whether the crime is murder or manslaughter, you must
give the defendant the benefit of such doubt and find it to be manslaughter rather
than murder.‖ (Italics added.)
The Attorney General first argues that any error in giving these instructions
was invited because defense counsel included both on his list of requested
instructions. However, ―[t]he invited error doctrine will not preclude appellate
review if the record fails to show counsel had a tactical reason for requesting or
acquiescing in the instruction.‖ (People v. Moon (2005) 37 Cal.4th 1, 28.) Here,
no such tactical reason appears in the record. CALJIC Nos. 8.71 and 8.72 were
the commonly used pattern instructions on application of the reasonable doubt
principle to lesser included homicide offenses, a topic on which counsel obviously
and appropriately wanted the jury to be instructed. Trial counsel‘s failure to detect
in the standard instructions the flaw appellate counsel perceives and to request a
modification does not demonstrate a tactical intent to induce the error now
On the merits, the Attorney General correctly notes that in People v. Frye
(1998) 18 Cal.4th 894, 963-964, we rejected a similar challenge to earlier versions
of CALJIC Nos. 8.71 and 8.72. These earlier versions, however, did not contain
the problematic language of which defendant now complains. (See fn. 7, ante.)
We have not previously decided whether the particular instructions at issue here
are reasonably likely to be understood and applied in an unconstitutional manner.
(See Frye, at p. 957.)
In two decisions, the Third District Court of Appeal has rejected
challenges, made on the same ground offered here, to the 1996 version of CALJIC
Nos. 8.71 and 8.72, concluding in both cases that the challenged instructions, read
together with the other instructions given, would not likely have led jurors to
believe they were required to vote for first degree murder if any of the other jurors
found that charge proven. (People v. Gunder (2007) 151 Cal.App.4th 412, 424-
425; People v. Pescador (2004) 119 Cal.App.4th 252, 255-258.)
In Gunder, the court relied on the trial court‘s having instructed with
CALJIC No. 17.40, a pattern instruction on the duty of individual jurors to decide
the case for themselves, which tells the jurors, in part, that they are not to ―decide
any question in a particular way because a majority of the jurors, or any of them,
favor that decision.‖ In light of that instruction, the Gunder court concluded, ―a
reasonable juror will view the statement about unanimity [in CALJIC No. 8.71] in
its proper context of the procedure for returning verdicts, as indeed elsewhere the
jurors are told they cannot return any verdict absent unanimity and cannot return
the lesser verdict of second degree murder until the jury unanimously agrees that
the defendant is not guilty of first degree murder.‖ (People v. Gunder, supra, 151
Cal.App.4th at p. 425.) CALJIC No. 17.40 was also given in the present case, as
was CALJIC No. 8.75, the instruction on returning verdicts to which the Gunder
court referred, in which the jury is told not to return a verdict for second degree
murder unless the jurors unanimously acquit of first degree murder, and not to
return a verdict of manslaughter unless they unanimously acquit of murder.
In Pescador, the court relied, in addition to CALJIC No. 17.40, on two
other instructions given: CALJIC No. 17.11, which told jurors, without any
requirement of unanimity, that if they had reasonable doubts as to the degree of
murder proven, they had to find the defendant guilty only of second degree murder
(People v. Pescador, supra, 119 Cal.App.4th at p. 257); and CALJIC No. 8.50,
which, as given, stated in part: ― ‗To establish that a killing is murder and not
manslaughter, the burden is on the People to prove beyond a reasonable doubt
each of the elements of murder . . .‘ ‖ (Pescador, at p. 258). Neither CALJIC No.
17.11 nor CALJIC No. 8.50 was given in the present case, though the jury was, of
course, instructed on the requirement of proof beyond a reasonable doubt
(CALJIC No. 2.90) and its application to the mens rea elements of the charged
crimes (CALJIC No. 4.21).
We conclude the better practice is not to use the 1996 revised versions of
CALJIC Nos. 8.71 and 8.72, as the instructions carry at least some potential for
confusing jurors about the role of their individual judgments in deciding between
first and second degree murder, and between murder and manslaughter. The
references to unanimity in these instructions were presumably added to convey the
principle that the jury as a whole may not return a verdict for a lesser included
offense unless it first reaches an acquittal on the charged greater offense. (See
People v. Kurtzman (1988) 46 Cal.3d 322, 329-333.) But inserting this language
into CALJIC Nos. 8.71 and 8.72, which address the role of reasonable doubt in
choosing between greater and lesser homicide offenses, was unnecessary, as
CALJIC No. 8.75 fully explains that the jury must unanimously agree to not guilty
verdicts on the greater homicide offenses before the jury as a whole may return
verdicts on the lesser.8
We need not decide here, however, whether Gunder was correct that the
possibility of confusion is adequately dispelled by instruction with CALJIC No.
17.40 on the jurors‘ duty of individual decision. Any error in giving these
instructions was harmless beyond a reasonable doubt (Chapman v. California,
supra, 386 U.S. at p. 24) in light of the jury‘s true findings on the burglary-murder
and robbery-murder special circumstances. Having found defendant killed Nicole
Carnahan in the commission of robbery and burglary, the jury must also have
The Judicial Council approved instructions on choosing between degrees of
murder and between murder and manslaughter do not contain the same potentially
confusing unanimity requirement as the 1996 revisions of CALJIC Nos. 8.71 and
8.72. (See CALCRIM No. 521 [―The People have the burden of proving beyond a
reasonable doubt that the killing was first degree murder rather than a lesser crime.
If the People have not met this burden, you must find the defendant not guilty of
first degree murder.‖]; CALCRIM Nos. 570, 571, 580 [addressing manslaughter as
a lesser included offense to murder].)
found him guilty of first degree murder on those same felony-murder theories.
The lesser offenses of second degree murder and manslaughter were not legally
available verdicts if defendant killed Nicole in the commission of burglary and
robbery, as the jury unanimously determined he had. (See § 189; People v. Bramit
(2009) 46 Cal.4th 1221, 1238; People v. Dillon (1983) 34 Cal.3d 441, 472.) Any
confusion generated by the challenged instructions, therefore, could not have
affected the jury‘s verdicts.9
VI. Instruction on First Degree Felony Murder
Because the information charged first degree murder in terms of malice
aforethought and premeditation, defendant contends the trial court deprived him of
due process by instructing the jury on first degree murder predicated on killing in
the commission of robbery and burglary. He further contends the court erred in
failing to instruct the jury on the need for unanimity on the type of first degree
For reasons given in prior decisions, we disagree. ―A pleading charging
murder in these terms adequately notifies a defendant of the possibility of
conviction of first degree murder on a felony-murder theory. (People v. Gallego
(1990) 52 Cal.3d 115, 188 [276 Cal.Rptr. 679, 802 P.2d 169].) Defendant
mistakenly relies on a statement in the plurality opinion in People v. Dillon[,
supra,] 34 Cal.3d 441 [194 Cal.Rptr. 390, 668 P.2d 697] that the ‗two kinds of
murder‘—that is, felony murder and murder with express or implied malice—‗are
The instruction on consideration of the special circumstance allegations did
not contain the same potentially confusing language as the challenged instructions.
In CALJIC No. 8.80.1 (6th ed. 1996), the jury was told: ―The People have the
burden of proving the truth of a special circumstance. If you have a reasonable
doubt as to whether a special circumstance is true, you must find it to be not true.‖
not the ―same‖ crimes.‘ (Id. at p. 476, fn. 23 (plur. opn. of Mosk, J.).) As we have
since explained, however, this means only that the two forms of murder have
different elements even though there is but a single statutory offense of murder.
(People v. Carpenter (1997) 15 Cal.4th 312, 394-395 [63 Cal.Rptr.2d 1, 935 P.2d
708]; People v. Pride (1992) 3 Cal.4th 195, 249 [10 Cal.Rptr.2d 636, 833 P.2d
643].) ‗Felony murder and premeditated murder are not distinct crimes . . . .‘
(People v. Davis (1995) 10 Cal.4th 463, 514 [41 Cal.Rptr.2d 826, 896 P.2d 119].)‖
(People v. Kipp, supra, 26 Cal.4th at p. 1131; accord, People v. Hughes, supra, 27
Cal.4th at pp. 369-370.) Moreover, in the present case the information charged
defendant, in addition to first degree murder, with the crimes of burglary and
robbery, and alleged as special circumstances that defendant murdered Nicole
Carnahan during the commission of burglary and robbery. These allegations gave
defendant more than adequate notice the prosecution would pursue a felony-
murder theory of first degree murder. (People v. Morgan (2007) 42 Cal.4th 593,
616-617; Kipp, at p. 1131.)
As to the asserted requirement for unanimity, it has long been settled ―that
unanimity as to the theory under which a killing is deemed culpable is not
compelled as a matter of state or federal law. Each juror need only have found
defendant guilty beyond a reasonable doubt of the single offense of first degree
murder as defined by statute and charged in the information. (Schad v. Arizona
(1991) 501 U.S. 624, 630-645 [111 S.Ct. 2491, 2496-2504, 115 L.Ed.2d 555]
(plur. opn. of Souter, J.); id. at pp. 648-652 [111 S.Ct. at pp. 2505-2507] (conc.
opn. of Scalia, J.); People v. Pride, supra, 3 Cal.4th 195, 249-250, and cases cited;
People v. Chavez (1951) 37 Cal.2d 656, 670-672 [234 P.2d 632].)‖ (People v.
Millwee (1998) 18 Cal.4th 96, 160.)
Defendant argues our prior holdings cannot stand in light of Apprendi v.
New Jersey (2000) 530 U.S. 466 and its progeny. This line of authority, however,
addresses the Sixth Amendment right to a jury determination of facts used in
sentencing beyond the elements of the charged offenses. Defendant cites nothing
in the United States Supreme Court‘s decisions creating new notice or unanimity
requirements for alternative theories of a substantive offense such as first degree
murder. (See People v. Taylor (2010) 48 Cal.4th 574, 626; People v. Morgan,
supra, 42 Cal.4th at p. 617.)
VII. Instruction on Consciousness of Guilt
Defendant contends a standard instruction outlining the permissible
inference of consciousness of guilt that may be drawn from a defendant‘s willfully
false statements (CALJIC No. 2.03)10 was ―unfairly partisan and argumentative‖
and allowed the jury to make irrational inferences about his state of mind in
commission of the offenses. As in many other recent decisions, we reject
defendant‘s claim that instruction on an inference of consciousness of guilt
deprived him of due process or other rights under the United States and California
Constitutions. (See, e.g., People v. Richardson, supra, 43 Cal.4th at p. 1019;
People v. Howard (2008) 42 Cal.4th 1000, 1025; People v. Nakahara (2003) 30
Cal.4th 705, 713; People v. Kelly (1992) 1 Cal.4th 495, 531-532 [noting that the
instruction‘s admonition that evidence of false statements is insufficient by itself
to prove guilt favors the defense but cannot sensibly be given without the
complementary portion allowing the jury to consider the evidence].)
CALJIC No. 2.03 states: ―If you find that before this trial a defendant
made a willfully false or deliberately misleading statement concerning the
crime for which he is now being tried, you may consider that statement as a
circumstance tending to prove a consciousness of guilt. However, that conduct
is not sufficient by itself to prove guilt, and its weight and significance, if any,
are for you to decide.‖
Defendant repeatedly told Carnahan and the police he had seen a
―Mexican‖ man (in the original telling, two men) in Carnahan‘s backyard. He
eventually went so far as to detail the man‘s clothing, hairstyle and movements.
As in People v. Howard, supra, 42 Cal.4th at page 1025, defendant‘s jury ―could
quite reasonably conclude that defendant made a series of false statements to
deflect suspicion from himself.‖ And while defendant may be correct that one
could not rationally infer the existence of the exact mens rea required for each
charged crime from his apparent falsehoods, the challenged instruction, read as a
whole, did not suggest such an inference be made. ―The instructions advise the
jury to determine what significance, if any, should be given to evidence of
consciousness of guilt, and caution that such evidence is not sufficient to establish
guilt, thereby clearly implying that the evidence is not the equivalent of a
confession and is to be evaluated with reason and common sense. The instructions
do not address the defendant‘s mental state at the time of the offense and do not
direct or compel the drawing of impermissible inferences in regard thereto.‖
(People v. Crandell (1988) 46 Cal.3d 833, 871.)
VIII. Instructions on Evaluation of Evidence
Defendant contends a number of standard instructions guiding the jury‘s
evaluation of evidence (CALJIC Nos. 2.01, 2.21.1, 2.21.2, 2.22, 2.27, 2.51, 8.83)
undermined the requirement of proof beyond a reasonable doubt, depriving him of
his constitutional rights to due process, a jury trial, and reliable determination of
the special circumstances and capital sentence. We recently explained why the
challenged instructions were not reasonably likely to have such an effect. (People
v. Brasure (2008) 42 Cal.4th 1037, 1058-1059; see also People v. Rundle (2008)
43 Cal.4th 76, 154-155; People v. Nakahara, supra, 30 Cal.4th at pp. 713-714.)
Defendant makes no compelling argument for revisiting those conclusions.
IX. Constitutionality of California’s Death Penalty Law
Acknowledging the same arguments have been raised and rejected in
previous decisions, defendant, to preserve his claims, contends several features of
California‘s capital sentencing scheme violate provisions of the United States
Constitution. For the reasons given in our precedents, we again reject these
The set of special circumstances qualifying a first degree murder for capital
sentencing (§ 190.2) is not impermissibly broad. (People v. Dykes (2009) 46
Cal.4th 731, 813.) Nor is section 190.3, factor (a), under which the jury may
consider the ―circumstances of the crime‖ as a factor in aggravation (or mitigation)
of penalty, so broad as to make imposition of a death sentence arbitrary and
capricious. (People v. Brasure, supra, 42 Cal.4th at p. 1066.) ― ‗As in [People v.
Brown (2004) 33 Cal.4th 382, 401], defendant argues that a seemingly inconsistent
range of circumstances can be collected from decisions upholding imposition of
the death penalty. As we observed in Brown, however, ―[w]hat this reflects is that
each case is judged on its facts, each defendant on the particulars of his offense.
Contrary to defendant‘s position, a statutory scheme would violate constitutional
limits if it did not allow such individualized assessment of the crimes but instead
mandated death in specified circumstances.‖ (Brown, supra, at p. 401.)‘ ‖
(Brasure, at p. 1066.)
― ‗Our statute ―is not invalid for failing to require (1) written findings or
unanimity as to aggravating factors, (2) proof of all aggravating factors beyond a
reasonable doubt, (3) findings that aggravation outweighs mitigation beyond a
reasonable doubt, or (4) findings that death is the appropriate penalty beyond a
reasonable doubt.‖ [Citation.] No instruction on burden of proof is required in a
California penalty trial because the assessment of aggravating and mitigating
circumstances required of penalty jurors is inherently ― ‗normative, not factual‘
[citation] and, hence, not susceptible to a burden-of-proof quantification.‖ ‘
(People v. Bell (2007) 40 Cal.4th 582, 620 [54 Cal.Rptr.3d 453, 151 P.3d 292] .)
Nor is an instruction on the absence of a burden of proof constitutionally required.
(People v. Cornwell (2005) 37 Cal.4th 50, 104 [33 Cal.Rptr.3d 1, 117 P.3d 622].)‖
(People v. Brasure, supra, 42 Cal.4th at p. 1067.) The United States Supreme
Court‘s decisions in Apprendi v. New Jersey, supra, 530 U.S. 466, and its progeny
do not establish a Sixth Amendment right to determination of particular
aggravating factors, or the balance of aggravation and mitigation beyond a
reasonable doubt, or by a unanimous jury. (People v. Taylor (2009) 47 Cal.4th
850, 899; Brasure, at pp. 1067-1068.) Finally, ―[n]o instruction on a presumption
that the sentence should be life without parole, rather than death, was
constitutionally required.‖ (Taylor, at p. 899.)
―The Constitution does not forbid use of unadjudicated prior criminal
activity as a circumstance in aggravation or require jury unanimity as to proof of
such prior activity. (People v. Zambrano (2007) 41 Cal.4th 1082, 1181-1182 [63
Cal.Rptr.3d 297, 163 P.3d 4]; People v. Stanley (2006) 39 Cal.4th 913, 962 [47
Cal.Rptr.3d 420, 140 P.3d 736].)‖ (People v. Brasure, supra, 42 Cal.4th at
―The use of the limiting adjectives ‗extreme‘ and ‗substantial‘ in the
instruction on section 190.3, factors (d) [referring to ―extreme mental or emotional
disturbance‖] and (g) [referring to ―extreme duress‖ and ―substantial domination‖
by another] does not unconstitutionally prevent the jury from considering
mitigating evidence.‖ (People v. Taylor, supra, 47 Cal.4th at p. 899.) As
defendant acknowledges, we have rejected this contention because jurors remain
free to weigh lesser mental disturbance, duress, or domination under the ―catchall‖
provision of section 190.3, factor (k), which permits consideration of ―[a]ny other
circumstance which extenuates the gravity of the crime.‖ (See, e.g., People v.
Wright (1990) 52 Cal.3d 367, 443-444.) Defendant urges us to reconsider these
holdings, observing that in his case the prosecutor argued to the jury his mental
impairments were not severe enough to qualify as ―extreme‖ disturbance under
factor (d), and did not address any lesser mental disturbance in discussing factor
(k).11 Nothing in the prosecutor‘s argument or the court‘s instructions, however,
precluded the jury from considering the evidence of defendant‘s mental
impairments, whether under factor (d) (to the extent jurors disagreed with the
prosecutor‘s assessment of the impairments as less than extreme), factor (h)
(referring to ―mental disease or defect‖ as potentially impairing defendant‘s ability
to appreciate the criminality of his conduct or conform it to the law‘s
requirements) or the catchall factor (k). Defense counsel argued to the jury that
defendant‘s conduct during the crime showed he acted in the grip of a mental
disturbance. No objection was heard to this argument, and while counsel did not
explicitly tie it to any of the listed mitigating factors, he was in no manner
precluded from doing so. As defendant was neither prevented from introducing
evidence of mental impairment, nor precluded from arguing its relevance and
force as mitigation, or from having it considered as such, we see no infringement
on defendant‘s rights under the Fifth, Sixth, Eighth or Fourteenth Amendments to
the United States Constitution.
The trial court did not err in failing to delete from its instructions references
to assertedly inapplicable factors listed in section 190.3 or to specify which factors
may be considered only in mitigation. (People v. Taylor, supra, 47 Cal.4th at
p. 899; People v. Brasure, supra, 42 Cal.4th at p. 1069.)
The trial court made a similar finding in denying the automatic motion for
modification of sentence.
Comparative intercase proportionality review of death sentences is not
constitutionally required. (People v. Taylor, supra, 47 Cal.4th at p. 900; People v.
Brasure, supra, 42 Cal.4th at p. 1068; People v. Lawley (2002) 27 Cal.4th 102,
169.) ―Because capital and noncapital defendants are not similarly situated in the
pertinent respects, equal protection principles do not mandate that capital
sentencing and sentence-review procedures parallel those used in noncapital
sentencing.‖ (Brasure, at p. 1069.)
X. International Law and the Eighth Amendment
―California‘s use of capital punishment as an authorized sentence for
certain specified types of first degree murder does not constitute cruel and unusual
punishment merely because most nations have chosen not to employ the death
penalty at all. (People v. Brasure, supra, 42 Cal.4th at pp. 1071-1072; People v.
Demetrulias (2006) 39 Cal.4th 1, 43-44 [45 Cal.Rptr.3d 407, 137 P.3d 229].)‖
(People v. Taylor, supra, 47 Cal.4th at p. 900.)
Defendant further argues international law requires that when the death
penalty is invoked, the state must rigorously observe guarantees of a fair trial.
While we have concluded the trial court erred in permitting a forensic expert to
answer a hypothetical question that lacked foundation in the evidence (see pt. II,
ante) and have, for purposes of discussion, assumed error in failing to suppress the
last portion of defendant‘s interview at the sheriff‘s station (see pt. I, ante) and in
giving certain standard instructions on deciding between greater and lesser
offenses (see pt. V, ante), none of these errors, actual or assumed, rendered
defendant‘s trial unfair or affected the jury‘s verdict either separately or, as
discussed below, cumulatively.
XI. Cumulative Prejudice from Errors
The three errors we have concluded or assumed occurred below, each
individually harmless, related to distinct procedural or evidentiary issues not
closely related to one another. We see no possibility their individual effects, if
any, cumulatively resulted in prejudice to defendant.
The judgment of the superior court is affirmed.
Retired Chief Justice of California, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
CONCURRING AND DISSENTING OPINION BY
KENNARD, ACTING C. J.
I concur in the majority‘s affirmance of the judgment of death. But I
disagree with the majority‘s analysis of an issue pertaining to a hypothetical
question asked by the prosecutor.
Defendant was charged with bludgeoning and stabbing to death his
11-year-old neighbor, Nicole Carnahan, while burglarizing her house when she
was home alone. Police found the victim‘s body in her bedroom, which was stained
heavily with blood. On the carpet in the living room was a single, small bloodstain.
That bloodstain became part of the prosecution‘s theory of the crime: that
Nicole saw defendant in her house and, presumably, cried out; that he hit her, and
she fell; and that, as she lay on the living room carpet bleeding (and leaving a stain),
defendant had what the prosecutor described to the jury as an ―opportunity to
think.‖ Calling that moment ―the turning point‖ of the crime — at which defendant
could have chosen to flee, but chose instead to kill Nicole and carry on with his
burglary — the prosecutor used it to argue that the murder had been premeditated.
To support its theory, the prosecution called criminalist Greg Avilez, an
expert on bloodstains, to testify about the lone stain in the living room. The
prosecutor asked him whether the person who left the stain had likely been standing
or lying down at the time. The defense objected, asserting that no evidence proved
that the stain had come from a person bleeding on the carpet rather than from a
bloody object that had been placed there — such as the brass rod or pipe that
defendant had with him, and that was later found, stained with blood, in his tool
shed. The trial court, reasoning that jurors could logically infer that the stain had
come either from a person or from a bloody object, ruled that the prosecutor could
base a hypothetical question on the first of those two inferences.
The prosecutor then asked criminalist Avilez whether, assuming that a
person had ―deposited‖ the bloodstain, the person ―would have been standing or
either lying down or very close to the carpet.‖ Avilez replied: ―At or near the
surface of [the] carpeting.‖
The majority concludes, first, that the prosecutor‘s hypothetical question to
the criminalist ―called for an opinion without adequate foundation‖ and the trial
court abused its discretion in allowing it, but, second, that the abuse of discretion
was harmless. (Maj. opn., ante, at pp. 23–24.) On the first conclusion, I disagree.
I conclude that the trial court did not abuse its discretion. Therefore, I do not
reach the question of prejudice.
Decades ago, this court set forth principles governing hypothetical
questions. In discussing the breadth of a trial court‘s discretion in applying those
principles, this court noted that ―[i]t is not essential . . . that the facts assumed should
be undisputed.‖ (Guardianship of Jacobson (1947) 30 Cal.2d 312, 324
(Jacobson).) Rather, hypothetical questions are proper as long as they are based on
―facts within the possible or probable range of the evidence‖ and are ―not unfair or
misleading.‖ (Ibid.) The trial court has ―large discretion relating to the form of
the question.‖ (Ibid.)
Because a trial court hears all the evidence, that court is in the best position
to decide if a hypothesis is within the ―possible or probable range‖ of that evidence
(Jacobson, supra, 30 Cal.2d at p. 324), and it therefore deserves a measure of
latitude in doing so. The trial court can also best determine whether, ultimately, the
testimony will help the trier of fact evaluate the issues it must decide. (People v.
Richardson (2008) 43 Cal.4th 959, 1008.) Hence, this court reviews a trial court‘s
rulings on hypothetical questions for abuse of discretion. (See, e.g., id. at p. 1009.)
Here, the trial court did not abuse its discretion in concluding that the
hypothesized fact — that the bloodstain came directly from a person — was within
the ―possible . . . range‖ of the evidence. (Jacobson, supra, 30 Cal.2d at p. 324.)
A hypothetical question can rest on ― ‗ ―any theory which can be deduced‖ from
any evidence properly admitted at trial, including the assumption of ―any facts
within the limits of the evidence.‘‘ ‘ ‖ (People v. Boyette (2002) 29 Cal.4th 381,
449, italics omitted.) ―[D]irect testimony is not required‖ to support a
hypothesized fact as long as the fact ―is fairly inferable from the circumstances
proved.‖ (1 McCormick on Evidence (6th ed. 2006) ch. 3, § 14, p. 89, fn. omitted.)
The evidence here proved these circumstances: The wounds inflicted on the
murder victim caused her to bleed, and hers was the blood on the carpet in the
living room, an area where she could have been. From that evidence, a juror could
reasonably deduce the factual theory assumed by the prosecutor‘s hypothetical
question, namely, that the victim‘s blood was on the carpet because she bled there.
That the expert could not exclude the alternative possibility — that the
bloodstain on the living room carpet came from a weapon used to attack the
victim — is of no consequence. The inference must be a reasonable one, not the
only reasonable one. For the same reason, it does not matter that no evidence
pointed exclusively to the prosecutor‘s hypothesis. Yet that is what the majority
seems to require.
Nevertheless, because I find no impropriety in the trial court‘s ruling at
issue, I agree with the majority‘s affirmance of the judgment of death.
KENNARD, ACTING C. J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Moore
Original Appeal XXX
Opinion No. S081479
Date Filed: January 31, 2011
Judge: Wendy Clark Duffy
Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and Arnold A.
Erickson, Deputy State Public Defender, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A.
Engler, Assistant Attorney General, Alice B. Lustre and Catherine McBrien, Deputy Attorneys General, for
Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Arnold A. Erickson
Deputy State Public Defender
221 Main Street, 10th Floor
San Francisco, CA 94105
Deputy Attorney General
455 Golden gate Avenue, Suite 11000
San Francisco, CA 94102-7004
Automatic appeal from a judgment of death.
|Mon, 01/31/2011||S081479||Automatic Appeal||submitted/opinion due|
|1||The People (Respondent)|
Represented by Attorney General - San Francisco Office
Catherine McBrien, Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA
|2||Moore, Ronald Wayne (Appellant)|
San Quentin State Prison
Represented by Office of the State Public Defender-Sf
Arnold Erickson, Deputy State Public Defender
221 Main Street, 10th Floor
San Francisco, CA
|Aug 16 1999||Judgment of death|
|Aug 19 1999||Filed certified copy of Judgment of Death Rendered|
|Aug 19 1999||Penal Code sections 190.6 et seq. apply to this case|
|Nov 17 1999||Record certified for completeness|
|Jun 28 2005||Order appointing State Public Defender filed|
In California, a criminal defendant has no right to represent himself or herself on appeal. (People v. Scott (1998) 64 Cal.App.4th 550; see also Martinez v. California (2000) 528 U.S. 152.) On the court's own motion, the State Public Defender is appointed to represent appellant Ronald Wayne Moore for the direct appeal in the above automatic appeal now pending in this court.
|Jul 6 2005||Received:|
notice from superior court that 14,906 pp. record was sent to appellant's counsel on 7-5-2005.
|Jul 11 2005||Date trial court delivered record to appellant's counsel|
(14,906 pp. record) (see Cal. Rules of Court, rule 34(e)(1); the date of delivery is the date of mailing plus five days. (Note: record was sent to appellant's counsel on 7-5-2005.)
|Jul 11 2005||Appellant's opening brief letter sent, due:|
April 7, 2006. (see Cal. Rules of Court, rule 36(c)(1)(A),(C))
|Aug 29 2005||Counsel's status report received (confidential)|
from State P.D.
|Oct 27 2005||Counsel's status report received (confidential)|
from State P.D.
|Dec 6 2005||Received copy of appellant's record correction motion|
Request for correction, augmentation and/or settlement of the record. (13 pp.)
|Dec 28 2005||Counsel's status report received (confidential)|
from State P.D.
|Mar 1 2006||Counsel's status report received (confidential)|
from State P.D.
|Mar 30 2006||Request for extension of time filed|
to file appellant's opening brief. (1st request)
|Apr 5 2006||Extension of time granted|
to June 6, 2006 to file appellant's opening brief.
|Apr 27 2006||Counsel's status report received (confidential)|
from State P.D.
|Jun 1 2006||Request for extension of time filed|
to file appellant's opening brief. (2nd request)
|Jun 6 2006||Extension of time granted|
to August 7, 2006 to file appellant's opening brief.
|Jun 29 2006||Counsel's status report received (confidential)|
from State P.D.
|Jul 31 2006||Request for extension of time filed|
to file apellant's opening brief. (3rd request)
|Aug 2 2006||Extension of time granted|
to October 6, 2006 to file appellant's opening brief.
|Aug 29 2006||Counsel's status report received (confidential)|
from State P.D.
|Sep 28 2006||Request for extension of time filed|
to file appellant's opening brief. (4th request)
|Oct 4 2006||Extension of time granted|
to December 5, 2006 to file appellant's opening brief.
|Oct 12 2006||Record certified for accuracy|
|Oct 30 2006||Counsel's status report received (confidential)|
from State P.D.
|Nov 8 2006||Note:|
record arrived from superior court.
|Dec 1 2006||Request for extension of time filed|
to file appellant's opening brief. (5th request)
|Dec 8 2006||Extension of time granted|
Good cause appearing, and based upon Deputy State Public Defender Arnold Erickson's representation that he anticipates filing the appellant's opening brief by June 5, 2007, counsel's request for an extension of time in which to file that brief is granted to February 5, 2007. After that date, only two further extensions totaling about 120 additional days are contemplated.
|Dec 26 2006||Counsel's status report received (confidential)|
from State P.D.
|Jan 30 2007||Request for extension of time filed|
to file appellant's opening brief. (6th request)
|Feb 5 2007||Extension of time granted|
to April 6, 2007 to file the appellant's opening brief. After that date, only three further extensions totaling about 150 additional days are contemplated. Extension is granted based upon Deputy State Public Defender Arnold Erickson's representation that he anticipates filing that brief by September 5, 2007.
|Feb 27 2007||Counsel's status report received (confidential)|
from State P.D.
|Mar 29 2007||Request for extension of time filed|
to file appellant's opening brief. (7th request)
|Apr 4 2007||Record on appeal filed|
Clerk's transcript 4591 pp. (19 volumes) and reporter's transcript 3721 pp. (60 volumes), including material under seal; ASCII disks. Clerk's transcript includes 3079 pp. of juror questionnaires.
|Apr 4 2007||Letter sent to:|
counsel advising record on appeal certified for accuracy filed this date.
|Apr 5 2007||Extension of time granted|
to June 5, 2007 to file the appellant's opening brief. After that date, only two further extensions totaling about 90 additional days are contemplated. Extension is granted based upon Deputy State Public Defender Arnold A. Erickson's representation that he anticipates filing that brief by September 5, 2007.
|Apr 30 2007||Counsel's status report received (confidential)|
from State P.D.
|May 29 2007||Request for extension of time filed|
to file appellant's opening brief. (8th request)
|Jun 1 2007||Extension of time granted|
to August 6, 2007 to file the appellant's opening brief. After that date, only one further extension totaling about 60 additional days is contemplated. Extension is granted based upon Deputy State Public Defender Arnold Erickson's representation that he anticipates filing that brief by October 5, 2007.
|Jul 2 2007||Counsel's status report received (confidential)|
from State P.D.
|Jul 31 2007||Request for extension of time filed|
to file appellant's opening brief. (9th request)
|Aug 7 2007||Extension of time granted|
Good cause appearing, and based upon Deputy State Public Defender Arnold Erickson's representation that he anticipates filing the appellant's opening brief by October 5, 2007, counsel's request for an extension of time in which to file that brief is granted to October 5, 2007. After that date, no further extension is contemplated.
|Aug 31 2007||Counsel's status report received (confidential)|
from State P.D.
|Oct 5 2007||Appellant's opening brief filed|
(39,778 words; 146 pp.)
|Oct 5 2007||Respondent's brief letter sent; due:|
February 4, 2008.
|Jan 23 2008||Request for extension of time filed|
to file respondent's brief. (1st request)
|Jan 24 2008||Extension of time granted|
Good cause appearing, and based upon Deputy Attorney General Catherine McBrien's representation that she anticipates filing the respondent's brief by June 4, 2008, counsel's request for an extension of time in which to file that brief is granted to April 4, 2008. After that date, only one further extension totaling about 60 additional days is contemplated.
|Apr 1 2008||Request for extension of time filed|
to file respondent's brief. (2nd request)
|Apr 4 2008||Extension of time granted|
Good cause appearing, and based upon Deputy Attorney General Catherine McBrien's representation that she anticipates filing the respondent's brief by July 3, 2008, counsel's request for an extension of time in which to file that brief is granted to June 4, 2008. After that date, only one further extension totaling about 30 additional days is contemplated.
|Jun 11 2008||Application for relief from default filed|
to file respondent's brief.
|Jun 11 2008||Note:|
|Jun 17 2008||Extension of time granted|
Respondent's request for relief from default is granted. Good cause appearing, and based upon Deputy Attorney General Catherine McBrien's representation that she anticipates filing the respondent's brief by August 4, 2008, counsel's request for an extension of time in which to file that document is granted to August 4, 2008. After that date, no further extension is contemplated.
|Jun 17 2008||Request for extension of time filed (AA)|
to file respondent's brief. (3rd request)
|Aug 4 2008||Filed:|
respondent's amended declaration of service by u.s. mail for respondent's brief.
|Aug 4 2008||Respondent's brief filed|
(31,124 words; 98 pp.)
|Aug 4 2008||Note:|
appellant's reply brief is due October 3, 3008. (see California Rules of Court, rule 8.630(c)(1)(D))
|Sep 26 2008||Request for extension of time filed (AA)|
to file appellant's reply brief. (1st request)
|Sep 30 2008||Extension of time granted|
Good cause appearing, and based upon Deputy State Public Defender Arnold A. Erickson's representation that he anticipates filing the appellant's reply brief by June 1, 2009, counsel's request for an extension of time in which to file that brief is granted to December 2, 2008. After that date, only three further extensions totaling about 180 additional days are contemplated.
|Nov 20 2008||Request for extension of time filed (AA)|
to file appellant's reply brief. (2nd request)
|Dec 1 2008||Extension of time granted|
Good cause appearing, and based upon Deputy State Public Defender Arnold A. Erickson's representation that he anticipates filing the appellant's reply brief by June 1, 2009, counsel's request for an extension of time in which to file that brief is granted to February 2, 2009. After that date, only two further extensions totaling about 120 additional days are contemplated.
|Jan 22 2009||Request for extension of time filed (AA)|
to file appellant's reply brief. (3rd request)
|Jan 26 2009||Extension of time granted|
Good cause appearing, and based upon Deputy State Public Defender Arnold A. Erickson's representation that he anticipates filing the appellant's reply brief by June 1, 2009, counsel's request for an extension of time in which to file that brief is granted to April 3, 2009. After that date, only one further extension totaling about 60 additional days is contemplated.
|Mar 24 2009||Request for extension of time filed (AA)|
to file appellant's reply brief. (4th request)
|Mar 26 2009||Extension of time granted|
Good cause appearing, and based upon Deputy State Public Defender Arnold A. Erickson's representation that he anticipates filing the appellant's reply brief by June 1, 2009, counsel's request for an extension of time in which to file that brief is granted to June 2, 2009. After that date, no further extension is contemplated.
|Jun 1 2009||Appellant's reply brief filed|
Appellant: Moore, Ronald WayneAttorney: Office of the State Public Defender-Sf (15,556 words; 58 pp.)
|Aug 27 2010||Oral argument letter sent|
advising counsel that the court could schedule this case for argument as early as the October calendar, to be held at a special session in Fresno the week of October 4, 2010. 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.
|Aug 30 2010||Filed:|
letter from Deputy Attorney General Catherine McBrien, dated August 30, 2010, requesting that oral argument not be scheduled during the week of October 4, 2010.
|Oct 5 2010||Case ordered on calendar|
to be argued on Tuesday, November 2, 2010, at 1:30 p.m., in San Francisco
|Oct 14 2010||Filed:|
appellant's focus issues letter, dated October 14, 2010
|Oct 15 2010||Received:|
appearance sheet from Deputy State Public Defender Arnold Erickson, indicating 30 minutes for oral argument for appellant.
|Nov 2 2010||Cause argued and submitted|
|Jan 3 2011||Justice pro tempore assigned|
George, C.J. (retired), appointed as justice pro tempore to this case.
|Jan 28 2011||Notice of forthcoming opinion posted|
To be filed Monday, January 31, 2011 at 10 a.m.
|Oct 5 2007||Appellant's opening brief filed|
|Aug 4 2008||Respondent's brief filed|
|Jun 1 2009||Appellant's reply brief filed|
Appellant: Moore, Ronald WayneAttorney: Office of the State Public Defender-Sf