Supreme Court of California Justia
Docket No. S075726
People v. Moore

Filed 6/23/11



Plaintiff and Respondent,




Los Angeles County

Defendant and Appellant.

Super. Ct. No. A018568

Defendant Charles Edward Moore twice has been convicted and sentenced

to death for robbing and murdering Robert and Marie Crumb in Long Beach,

California in 1977. We affirmed his first conviction and sentence in 1988 (People

v. Moore (1988) 47 Cal.3d 63 (Moore)), but that judgment was vacated in federal

habeas corpus proceedings, when the federal court concluded defendant‟s right to

represent himself at trial had been violated. (Moore v. Calderon (9th Cir. 1997)
108 F.3d 261.) After a second trial in 1998,1 the jury again convicted defendant of

two counts of first degree murder (Pen. Code, § 187),2 two counts of robbery

(§ 211), and one count of burglary (§ 459). It found true sentencing enhancements

as to each count that defendant personally used a deadly and dangerous weapon, a

knife (§ 12202, subd. (b)), except with regard to the murder of Marie Crumb. It


Defendant represented himself during pretrial proceedings, part of the guilt

phase, and the entire penalty phase and postverdict portions of the second trial.


All further statutory references are to the Penal Code unless otherwise


also found true sentencing enhancements as to each robbery count that defendant

personally used a firearm (§ 12022.5). The jury found true the special

circumstances that, as to each murder, defendant committed the murder in the

course of robbing the victims (former § 190.2, subd. (c)(3)(i)), in the course of

committing a burglary (former § 190.2, subd. (c)(3)(v)), and found true the special

circumstance that defendant committed multiple murders (former § 190.2, subd.

(c)(5)).3 After a penalty trial, the jury returned a verdict of death. The trial court

denied the automatic motion to modify the verdict (§ 190.4, subd. (e)), and

sentenced defendant to death and to a determinate term, stayed, on the noncapital

offenses. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment

in its entirety.


A. Guilt Phase

1. Prosecution Evidence

The prosecution‟s case for the most part paralleled the evidence that was

presented at defendant‟s first trial, and, as with that proceeding, relied primarily on

the testimony of Terry Avery, an accomplice to the robberies and murders who

received immunity from prosecution. (See Moore, supra, 47 Cal.3d at pp. 71-

74.)4 Avery testified that in late November 1977, she lived with her parents in


Because the crimes took place in December of 1977, defendant‟s case is

governed by the death penalty law that was adopted by the Legislature earlier that
year. (Stats. 1977, ch. 316, §§ 4-14, pp. 1256-1262; People v. Robertson (1989)
48 Cal.3d 18, 51.) The death penalty statute was subsequently repealed and
reenacted by voter initiative (Prop. 7) at the November 7, 1978 General Election.


As recounted in our opinion in defendant‟s first appeal, the guilt phase of

defendant‟s first trial included the presentation of evidence concerning a murder
that defendant and the third accomplice, Lee Edward Harris, committed in


Denver, Colorado. She was 19 years old at the time. Avery met defendant

through a friend, and then through defendant met Lee Edward Harris. Avery

decided to accompany defendant and Harris to Lawrence, Kansas, and left Denver

without taking any money or possessions with her. In Lawrence, defendant

purchased clothes, a purse, and shoes for Avery. The shoes came in a yellow

plastic bag, which Avery kept with her during the trip. The three of them drove

from Lawrence to Kansas City, Kansas, and then traveled by bus to Los Angeles,

arriving there on November 30, 1977. During the drive from Lawrence to Kansas

City, defendant mentioned that he used to live in California; he said the managers

of the apartment where he had lived had money and jewelry. During the bus ride

to California, defendant and Harris discussed plans to rob the apartment managers.

After spending the first night in Los Angeles, the next day, December 1,

1977, the three took a bus to Long Beach, where they rented two rooms at the

Kona Hotel. Defendant and Avery stayed in one room and Harris stayed in an

adjoining room; defendant told Avery he registered for the room as Mr. and Mrs.

Charles Brown. That afternoon, defendant, Harris and Avery took a short walk to

an apartment building where defendant previously had lived and where the

apartment managers resided. The three then had dinner and returned to the hotel.

Defendant and Harris left for a while, returning a short time later with a drugstore

bag containing a roll of thick, white cloth surgical tape. Defendant said he needed

to cover his face so he would not be recognized, and used one of Avery‟s

stockings to fashion a mask. Avery testified, however, that defendant was still

recognizable when he wore the mask. After it became dark outside, defendant,

Lawrence, Kansas, before they committed the Crumb murders. (Moore, supra, 47
Cal.3d at pp. 71-72.) Pursuant to the stipulation of the parties, that murder was not
mentioned until the penalty phase of defendant‟s second trial.


Harris and Avery left the hotel to carry out the robbery. Defendant and Harris had

the tape, defendant‟s mask, and two pistols with them.

Avery testified that when they arrived at the apartment building, they could

not go inside because the front door was locked. Defendant met a man dressed in

women‟s clothing whom he knew, and they talked for a short while. When the

man entered the building, defendant grabbed the door and held it open so he,

Harris, and Avery could enter. The three then went up several flights of stairs to a

door that had a “Manager” sign on it. Avery knocked on the door and a woman

(Marie Crumb) inside asked who it was. When Marie opened the door, defendant,

wearing his mask, and Harris, both with guns drawn, pushed their way into the

apartment. Avery followed them inside and saw defendant push Marie into a

chair. Avery also saw a man (Robert Crumb) seated on the couch. Defendant

demanded to know where the money was. Avery noticed that Marie Crumb

seemed to recognize defendant, and that defendant and Harris appeared to have

noticed that Marie had recognized him.

Defendant then grabbed Robert Crumb and again demanded the money.

Defendant struck Robert on the head with the butt of his gun. Marie repeatedly

told defendant that they did not have the money because it had been taken to the

bank earlier that day. Harris threw the woman onto the floor and told Avery to get

him an item from a nearby clothes hamper. After she gave Harris a curtain or long

rag from the hamper, Avery was told to go into the apartment‟s bedroom to look

for the jewelry. In the bedroom, Avery found a number of jewelry boxes and

display cases. Defendant then came into the bedroom and helped Avery force

open the cases so she could get the jewelry out. She then placed a number of

rings, necklaces, watches and other items, many of which were made of turquoise,

into a pillowcase from the bed. Defendant and Harris told Avery to use rags when

picking up items in the apartment so she would not leave any fingerprints.


Avery next testified that when she came out of the bedroom back into the

living room, Robert and Marie Crumb were in the same positions, except their

arms were behind their backs, with their hands fastened together with the white

surgical tape, and they did not appear to be moving or making any noise. Harris

had wrapped the curtain or rag Avery gave him around the woman‟s mouth and

neck and was choking her. Harris told Avery to go into the kitchen to get a knife.

She went to the kitchen and found several knives, but did not take one to Harris.

Harris then came into the kitchen and picked up a large butcher knife and returned

to the living room. Avery returned to the bedroom, but then went to the door to

the living room, and saw defendant stab Robert in the back. Robert began kicking,

so Harris went over to hold his legs while defendant continued to stab him.

Avery returned to the bedroom, but Harris called for her to come back into

the living room. When she returned, Harris called her over to Marie Crumb, and

told Avery to stab her with a pocketknife that was on a nearby coffee table. Avery

did so, but Harris became angry because she did not do it hard enough. Harris told

Avery to move, and then yelled at her when she touched the table, telling her to

wipe it off so there would be no fingerprints. Avery then returned to the bedroom,

and shortly thereafter picked up her purse and the pillowcase full of jewelry and

left the apartment. After about 10 minutes, defendant and Harris came out of the

apartment. The three of them then returned to the Kona Hotel.

Avery testified that when they arrived back at the hotel, the three of them

examined the jewelry that had been taken from the apartment. Avery noticed that

some of the items were not items that she had taken from the bedroom. Each of

them took several items; defendant took a watch, a belt buckle and two rings. The

remaining jewelry was placed in the yellow plastic bag from the shoe store in

Lawrence, Kansas. Later, Avery accompanied defendant to the beach where he

threw the guns used in the robbery into the ocean. Avery told defendant she felt ill


and needed to return to Denver. Defendant took her to the bus station and

purchased a ticket for her trip.

A number of days after she returned to Denver, Avery was called to meet

with defendant and Harris at an apartment in a Denver suburb. They questioned

her about whether she had told anyone about the crimes. After convincing them

that she had not, Avery left and, because she was scared that defendant or Harris

might harm her, told her parents, who then contacted the Denver police. Avery

voluntarily surrendered to the police, and told them where they could find

defendant and Harris. Denver area police officers testified that based on

information supplied by Avery, the police went to an apartment in a suburb of

Denver. Defendant was arrested after he climbed out of the bathroom window

during the raid. He was wearing two rings. Harris was arrested in a bedroom in

the apartment. On top of a dresser in the bedroom was a yellow plastic bag from a

shoe store in Lawrence, Kansas that contained numerous items of jewelry. A

number of individuals testified that the jewelry seized during defendant‟s arrest in

Colorado, including the rings defendant was wearing, belonged to the Crumbs,

among them Avery, James Jones, a friend of the Crumbs, and the owner of the

apartment building the Crumbs managed.

The owner of the apartment building testified that he met with Robert and

Marie Crumb on the afternoon of December 1, 1977, and picked up the rent

money they had collected so it could be deposited in the bank. He returned to the

Crumbs‟ apartment in the afternoon of December 2 and found their bodies in the

residence, which had been ransacked. The owner also gave the police a copy of a

rental agreement showing that a Charles Moore had rented an apartment in Long

Beach from him in March of 1977.


The testimony of James Jones from defendant‟s first trial was read into the

record.5 In 1977, Jones lived in the apartment building managed by the Crumbs,

was friends with them, and helped them with various chores. Jones had met

defendant four or five times when defendant lived in Long Beach. On the night of

December 1, 1977, Jones went to a nearby bar, dressed in “drag.” After drinking

several beers and becoming intoxicated, Jones returned to the apartment building.

He testified, however, that he did not talk with anyone outside the building and did

not recall seeing defendant, whom he would have recognized.

The police detective assigned to the Long Beach murder case testified that

the victims, whose apartment was on the fourth floor of the building, had been

stabbed multiple times. Their hands were fastened together behind their backs

with white tape. Robert Crumb had a pillowcase over his head, while Marie had a

cloth curtain twisted around her mouth and head. A butcher knife and a folding

pocketknife with a dried red substance on them were found in the apartment.

Numerous empty jewelry boxes and display cases were found in the apartment‟s

bedroom. One of the pillowcases from the bed was missing.

A medical examiner from the Los Angeles County Coroner‟s Office

testified from the victims‟ autopsy reports that Robert Crumb had been stabbed 10

times in the chest (not in his back, as Avery testified). The wounds were

consistent with the butcher knife. There were also two lacerations on the back of

his head, consistent with his having been hit on the head with an object such as a

pistol. Marie Crumb had been stabbed six times; one of the stab wounds was only

one-eighth of an inch deep and another was just under half an inch deep, while the

remaining wounds were several inches deep. The three deepest wounds, including

the two fatal wounds, were consistent with the butcher knife; the pocket knife


Jones died after the first trial.


could not have made those wounds. Marie also had a black eye and bruising on

her forehead consistent with blunt force injury.

The detective also testified that he obtained registration cards from the

Kona Hotel, which showed that “Sam Harris” and “Charles Moore and Wife”

stayed there on December 1, 1977. A handwriting expert testified that, in his

opinion, the handwriting on the cards matched exemplars defendant and Harris

had provided.

2. Defense Evidence

After the prosecution rested, defendant reasserted his right to represent

himself, and his attorney was then reappointed as standby counsel. Defendant

conducted the remainder of the trial himself. In so doing, he re-called the

investigating detective and attempted to establish inconsistencies between Avery‟s

descriptions of how many jewelry cases were located in the bedroom and how

many the police found. By stipulation of the parties, portions of Avery‟s

testimony at prior proceedings were read into the record; she had testified that

defendant stabbed the man in the back, and Harris stabbed the woman twice, but

defendant did not stab her. Her prior testimony concerning descriptions of some

of the jewelry was also read into the record.

B. Penalty Phase

1. Prosecution Evidence

a. Other Criminal Activity

i. Armed Robbery

The prosecution presented evidence that defendant was convicted in 1978

of armed robbery of a jewelry store in the Denver, Colorado area. Defendant

committed the robbery on November 22, 1977, slightly over one week before the

Long Beach murders.


ii. Norwood Murder

Avery testified that when she, defendant, and Harris traveled to Lawrence,

Kansas from Denver, Colorado, in late November 1977, defendant and Harris

kidnapped and murdered Sam Norwood, the manager of the local Woolworth‟s

store, in an attempt to obtain money from the store. Defendant was the one who

suggested robbing the store because he had previously worked there. Avery,

defendant and Harris arrived at the store around 9:00 p.m. or 10:00 p.m., and

Avery went inside to see who was there. When she returned to their car, Harris

was returning with Norwood, held at gunpoint. After Norwood was placed in the

car, defendant demanded the money from the store, but Norwood said the money

had already been deposited in the bank. Defendant at one point hit Norwood in

the head with a pistol. When Norwood said that he wanted to go home because

his son was having a birthday party, defendant threatened that they could go get

his son, too. Harris, following defendant‟s instructions, drove to a dark area about

10 minutes away from the store. Defendant pulled Norwood out of the car, and

then Harris got out. Avery heard two guns firing and then defendant and Harris

returned to the car. Harris asked defendant why he shot the victim “so many

times,” and defendant laughed, saying “to make sure he was dead.” The

prosecutor who tried the case arising from these incidents testified that the

victim‟s hands were taped behind his back with athletic tape, and he had been shot

four times in the back of the head. Defendant ultimately was convicted of

kidnapping, aggravated robbery, and first degree murder.

iii. Escape and Aggravated Robbery

In 1979, after defendant was apprehended, prosecuted, and convicted of the

jewelry store robbery in Colorado and was being transported to the Colorado trial

court for a hearing concerning his request for a sentence reduction, he

overpowered the deputy escorting him, took the deputy‟s firearm, and escaped.


During his escape, defendant committed a carjacking using the deputy‟s weapon,

but he was captured later that day. Defendant was convicted of escape, aggravated

robbery, and being a habitual criminal as a result of this incident.

b. Prison and Jail Incidents

Three correctional officers from San Quentin State Prison testified that they

each observed an incident in which defendant fought with another inmate. In two

of the instances, the officers believed that defendant was the aggressor; the third

officer did not see exactly how the fight began. A fourth correctional officer

testified that when she was passing a food tray into defendant‟s cell, defendant

threw the tray at her and the food “splattered all over [her].”

Two Los Angeles County sheriff‟s deputies who worked at the jail where

defendant was housed during the trial testified that they found prisoner-made

knives, or “shanks,” in defendant‟s possession. One weapon was found on top of

a conduit running at the top, and just outside, of the bars to defendant‟s cell. The

shank was readily accessible only from inside the cell. Although it was possible

that someone outside the cell could have climbed up on the bars to place the shank

in that location, anyone doing so would have been clearly visible to the cameras

monitoring the area. The second shank was found inside a folder of legal

materials defendant was taking with him to a meeting with his attorney. The

shank was a rod, sharpened to a point at one end, that had been removed from the

typewriter defendant used in the jail‟s law library. Defendant admitted at a

disciplinary hearing that he possessed this shank “for protection.” Another deputy

testified that when searching defendant before escorting him to the jail law library,

the deputy found a plastic baggie filled with a yellow liquid that smelled like

urine. The deputy testified that such items are known as “piss bombs,” and

inmates throw them at other inmates and jail staff.


2. Defense Evidence

Several of defendant‟s siblings testified about the difficult and abusive

family circumstances in which they and defendant were raised. Their father was

physically abusive towards the children. He forced them to work hauling trash

and even to steal property to provide money for the family and for his gambling

and alcohol consumption, often keeping them out of school to do so. He beat the

children when they were disobedient and sexually abused one of defendant‟s

sisters when she was nine years old. Defendant‟s mother was not a good parent

either; she was afraid of her husband and therefore did little to stop his abuse of

the children. Defendant‟s parents eventually separated, and most of the children,

including defendant, stayed with their father, who continued to abuse them.

Because defendant‟s father was African-American and his mother was Caucasian,

defendant and his siblings had difficulties with other children in the neighborhood.

Ruth Tiger testified that she knew defendant through a Christian prison

organization. She had corresponded and met with him for over 18 years, and

defendant had frequently told her that he regretted his past and felt remorse for

what he had done. Defendant had offered her and her family support when they

had personal difficulties. Tiger‟s interactions with defendant had always been

positive, loving and supportive.

Dr. Marshall Cherkas, a psychiatrist, reviewed defendant‟s background and

offered opinions concerning the effect of his family history on his development

and his current mental state. In Cherkas‟s opinion, the bad parenting defendant

received during his childhood resulted in him having a “predilection towards

antisocial behavior” and excessive narcissism. Defendant also was a “pseudo-

independent man” who had tried to make his own way, but was also a “passive

person” who did not express his feelings or trust others. Cherkas believed

defendant felt vulnerable and endangered, and therefore had possessed the shanks


in jail, but overall was not particularly violent, given the conditions he faced while

in custody. Cherkas testified that people with personality disorders or maladaptive

behaviors are not necessarily static, but can change based on their situation.


A. Denial of Defendant’s Requests for the Appointment of Cocounsel

Defendant represented himself during the pretrial stages of the proceedings,

but eventually chose to have an attorney represent him for part of the guilt phase

of the trial. During the time defendant was representing himself before the trial,

he repeatedly asked the trial court to appoint an attorney to serve as his

“cocounsel,” who would help defendant prepare the defense case and assist in

presenting the case to the jury. The trial court (four different judges) rejected the

requests for cocounsel; however, the court did appoint advisory counsel to help

defendant prepare the case and give him advice upon request, but not to actively

participate in the trial itself. Defendant contends the denial of his requests for the

appointment of cocounsel was an abuse of discretion under state law that also

violated his federal constitutional rights to due process, effective assistance of

counsel and a reliable trial, his statutory right to the appointment of second

counsel in a capital case, and his constitutional right to equal protection of the

laws.6 We are not persuaded.


Defendant does not claim that his assertion of his right to represent himself

under Faretta v. California (1975) 422 U.S. 806, was invalid. Of course, the very
reason defendant was being retried was the federal courts‟ earlier conclusion that
defendant‟s Faretta right was violated at his first trial.

Because, as discussed below, we conclude that the denial of defendant‟s

requests for cocounsel was not error, we do not consider whether defendant‟s later
choice to give up his right to represent himself for part of the guilt phase of the
trial affects his ability to challenge on appeal the denial of his prior requests for


We begin the analysis of defendant‟s claims with the long-standing rule

that a defendant has no right, under either the federal or state Constitution, to

“hybrid representation.”7 Criminal defendants have the constitutional right to

have an attorney represent them, and the right under the federal Constitution to

represent themselves, but these rights are mutually exclusive. (McKaskle v.

Wiggins (1984) 465 U.S. 168, 183 (McKaskle); People v. Marlow (2004) 34

Cal.4th 131, 147, fn. 6; People v. Clark (1992) 3 Cal.4th 41, 111 (Clark); People

v. Bloom (1989) 48 Cal.3d 1194.) Indeed, we stated this rule in our opinion in

defendant‟s first appeal, in which he raised a related hybrid representation claim

when he asserted that his rights had been violated because the trial court denied his

request to appear as cocounsel with his appointed counsel. (Moore, supra, 47

Cal.3d at p. 77 [“A defendant has no absolute right to participate in the

presentation of his case when he is represented by counsel.”].) The circumstance

that a defendant must choose between the exclusive rights of being represented by

an attorney or representing himself or herself does not create a conflict of interest,

as defendant claims. To the extent defendant contends that any of his


In this case, by hybrid representation we mean one of three arrangements

involving the presence of both a self-represented defendant and a defense attorney:
(1) standby counsel, in which the attorney takes no active role in the defense, but
attends the proceedings so as to be familiar with the case in the event that the
defendant gives up or loses his or her right to self-representation; (2) advisory
counsel, in which the attorney actively assists the defendant in preparing the
defense case by performing tasks and providing advice pursuant to the defendant‟s
requests, but does not participate on behalf of the defense in court proceedings;
and (3) cocounsel, in which the attorney shares responsibilities with the defendant
and actively participates in both the preparation of the defense case and its
presentation to a degree acceptable to both the defendant and the attorney and
permitted by the court. A second major category of hybrid representation, not at
issue here, occurs when a criminal defendant who has chosen to accept the
assistance of counsel is permitted to serve as cocounsel to his or her attorney. In
such cases, the attorney retains control of the tactical choices to be made, and the
defendant participates only to the extent permitted by counsel and the court.


constitutional rights (including his right to effective assistance of counsel and the

right to represent himself) were violated solely by the absence of cocounsel at his

trial, the claim fails.

Although there is no constitutional right to hybrid representation, we have

long recognized that trial courts retain the discretion to permit the sharing of

responsibilities between a defendant and a defense attorney when the interests of

justice support such an arrangement. (People v. Mattson (1959) 51 Cal.2d 777,

797.) Defendant contends the trial court‟s decision not to appoint cocounsel in his

case was an abuse of the court‟s discretion. We disagree. As we previously stated

regarding a challenge to the denial of hybrid representation, “as with other matters

requiring the exercise of discretion, „as long as there exists a reasonable or even

fairly debatable justification, under the law, for the action taken, such action will

not be here set aside . . . . [Citations.]‟ ” (Clark, supra, 3 Cal.4th at p. 111.)

Defendant failed to make any compelling showing that the appointment of

cocounsel instead of advisory counsel was justified. All of the reasons defendant

proffered for why he needed the assistance of cocounsel — and not merely

advisory counsel — were circumstances related to his choice to represent himself,

and defendant was warned of the possible difficulties he would face before he

made that choice.

For example, defendant argued that the jail‟s law library facilities were

inadequate, that the case was complex, and that cocounsel could “help if [he was

not] articulate in front of the jury,” could help ensure that the defense case was

presented in an orderly manner, and could conduct defendant‟s examination if he

chose to testify. These potential problems were tied to defendant‟s choice to

represent himself, and the trial court was not required to appoint cocounsel.8 In


Defendant repeatedly makes note of the circumstance that his willingness to

give up his Faretta right to the extent that he would permit cocounsel to


addition, advisory counsel, as well as the investigator and legal runner the trial

court had appointed on defendant‟s behalf, was available to assist defendant to

some degree. Moreover, defendant had already participated in one trial on these

very charges, and therefore had some familiarity with trial procedures and the very

issues that were likely to come up in his second trial. For these reasons, we cannot

conclude that the trial court abused its discretion in denying defendant‟s request.

(See also People v. Bradford (1997) 15 Cal.4th 1229, 1369 [“The court was well

within its discretion in refusing to permit defendant both to represent himself and

to have the benefit of professional representation.”].)

Defendant makes much of the circumstance that the trial court initially

expressed some willingness to appoint cocounsel, and that discussion occurred at

subsequent hearings concerning uncertainty regarding how much an attorney

receiving such an appointment would be paid for his or her services under the trial

court‟s contract for the appointment of attorneys for indigent defendants.9 The

participate in the trial would have eliminated the concern that his right to self-
representation not be violated by the unwelcomed participation of counsel. (See
McKaskle, supra, 465 U.S. at p. 182.) First, we cannot be sure that, had cocounsel
been appointed in the present case, he or she would actually have acceded to
defendant‟s strategic choices during the trial such that no infringement of
defendant‟s Faretta right would have occurred, and therefore we do not believe
his pretrial agreement, in the abstract, to sharing duties with an attorney
necessarily carries much weight. Indeed, during the guilt phase of the trial,
defendant became dissatisfied with the efforts of his appointed attorney and
reasserted his Faretta right. Regardless, to the extent defendant implies that
because he was agreeable to some partial waiver of his Faretta right, this
somehow heightened the obligation of the trial court to grant the request for
cocounsel, he is mistaken.


The contract apparently did not include express provisions dealing with the

payment of cocounsel, as opposed to advisory or standby counsel, in a case in
which the defendant proceeded in propria persona. The trial court and several
attorneys who were potential candidates to serve as defendant‟s cocounsel
contacted various people involved in the administration of the contract, and there
was apparent difficulty in obtaining any definitive answer concerning how much


trial court ultimately found that the appointment of advisory counsel, which was

expressly provided for in the contract, was the best way to ensure defendant

received adequate assistance. Defendant contends the trial court‟s consideration

of the possible financial arrangements for the appointment of cocounsel was

improper. Because we have concluded the trial court did not abuse its discretion

when it denied his request, we need not decide whether the trial court‟s

consideration of the funding for such an appointment (to the extent that we might

conclude the payment issue actually was a factor in the court‟s decision) was


We therefore conclude the trial court did not abuse its discretion in denying

defendant‟s request for the appointment of cocounsel. Because there was no abuse

of discretion, defendant‟s contention that his various constitutional rights were

violated is without merit.

Defendant also contends the trial court‟s decision not to appoint cocounsel

violated his state law right to the appointment of a second attorney in a capital

case, under section 987 and our decision in Keenan v. Superior Court (1982) 31

Cal.3d 424. He is incorrect. Initially, we note that Keenan delineated the rights

the statute established, which, we concluded, provided the authority in capital

cases for trial courts to exercise the discretion to order the appointment of a second

attorney. (Keenan, supra, 31 Cal.3d at p. 430.) After Keenan, and before

defendant‟s retrial, the Legislature revised the statutes relating to the appointment

of counsel for indigent defendants, and added subdivision (d) to section 987, an

express provision for the appointment of second counsel in a capital case along the

lines we set forth in Keenan. (See Stats. 1984, ch. 1109, § 4, pp. 3735-3736.)

cocounsel would be paid. As the Attorney General points out, the contract itself
was never made part of the record.


Therefore, our review of defendant‟s state law claim will focus on the

determination of the rights the amended statute confers. (People v. Tanner (1979)

24 Cal.3d 514, 521 [“A specific provision relating to a particular subject will

govern a general provision, even though the general provision standing alone

would be broad enough to include the subject to which the specific provision


The plain language of the statute forecloses defendant‟s claim that the trial

court erred when it did not appoint “second” counsel. In short, section 987,

subdivision (d) does not apply when a defendant is proceeding in propria persona.

Subdivision (d) provides, in relevant part, that “In a capital case, the court may

appoint an additional attorney as a cocounsel upon a written request of the first

attorney appointed. The request shall be supported by an affidavit of the first

attorney setting forth in detail the reasons why a second attorney should be

appointed.” (§ 987, subd. (d), italics added.) A defendant proceeding in propria

persona simply is not “the first attorney appointed,” despite the circumstance that

by choosing self-representation, such a defendant takes on the duties that would

otherwise fall on his or her attorney. (See Scott v. Superior Court (1989) 212

Cal.App.3d 505, 511 (Scott).) There is no indication in the statute — or anywhere

else — that the Legislature intended to create, in effect, a statutory right to hybrid

representation, and we reject defendant‟s contention that we should interpret the

statute‟s plain language to reach such a result. (People v. Birkett (1999) 21

Cal.4th 226, 231 [“We must follow the statute‟s plain meaning, if such appears,

unless doing so would lead to absurd results the Legislature could not have



We also note that we affirmed in defendant‟s first appeal the denial of his

trial counsel‟s request for the appointment of a second attorney because defendant


Defendant next contends the denial of his requests for the appointment of

cocounsel violated his federal and state constitutional rights to equal protection of

the law. Defendant claims that the trial court‟s refusal to appoint cocounsel

unfairly denied him a benefit bestowed upon other capital defendants. This

contention is without merit because defendant has not demonstrated that he was

subjected to unfavorable treatment compared to other defendants with whom he

was similarly situated. (See Purdy & Fitzpatrick v. State of California (1969) 71

Cal.2d 566, 578 [“The concept of the equal protection of the laws compels

recognition of the proposition that persons similarly situated with respect to the

legitimate purpose of the law receive like treatment.”].)

Defendant‟s equal protection claim proceeds from the faulty premise that,

for purposes of the appointment of cocounsel, capital defendants who choose to

represent themselves are similarly situated to those who choose representation by

appointed counsel. Not so. As our cases make clear, a defendant who chooses to

assert his or her Faretta right has no constitutional right whatsoever to have the

assistance of an attorney. Similarly, as we discussed above, a self-represented

defendant is not “the attorney first appointed” for purposes of the statutory

provision concerning the appointment of a second defense attorney. On a more

practical level, although a defendant proceeding in propria persona adopts the

duties of a defense attorney, he or she is not bound by the same ethical standards

or expected to possess the same level of competence as an attorney. The

implication behind defendant‟s claim — that it would be no different for two

attorneys to work together on a case than it would be for a defendant and an

attorney to do so — is incorrect. (See People v. Hamilton (1989) 48 Cal.3d 1142,

“never argued any specific or compelling reasons requiring the assistance of
additional counsel.” (Moore, supra, 47 Cal.3d at pp. 76-77.)


1162 [“Undesirable tactical conflicts, trial delays, and confusion often arise when

a defendant who has chosen professional representation shares legal functions with

his attorney.”].) Those defendants who assert their constitutional right to represent

themselves are not similarly situated to those who choose appointed counsel with

respect to the appointment of cocounsel, nor have they been penalized for

asserting their Faretta right, as defendant claims. Because defendant has not

demonstrated any disparate treatment with regard to his request for the

appointment of cocounsel, we conclude the court did not violate his constitutional

right to equal protection. (See Scott, supra, 212 Cal.App.3d at pp. 511-512.)

B. Denial of Motion to Reinstate In Propria Persona Privileges at the


Several days before the trial commenced, a deputy in the jail found in

defendant‟s possession a sharpened rod that had been removed from the typewriter

defendant had been using at the jail‟s law library. A disciplinary hearing was held

at the jail, during which defendant admitted he possessed the rod, and that it was

for his “protection.” As a result of this incident, defendant‟s in propria persona

privileges at the jail were revoked, primarily meaning he was not allowed to use

the jail‟s law library. His phone access was also limited. Defendant asked the

trial court to intervene and to order that the jail restore some of his privileges, by,

for example, allowing him to use the law library when no other inmates were

there, permitting a legal runner to bring him books from the library while he was

confined in his cell, and increasing his access to the telephones.

The deputy who found the rod testified at a hearing before the trial court

that defendant would have access to the telephone during his normal “tier time,”

though it would be less than at the law library, and that a legal runner could

provide him with legal materials during regular visiting hours. The deputy stated

that the jail did not permit the removal of legal materials from the law library, in


order to ensure that the materials would be available to other inmates using the

library, and to prevent destruction of the materials. The trial court refused to order

any changes to defendant‟s status, noting that defendant had been warned before

exercising his right to represent himself that if he violated the jail‟s policies, he

could lose his privileges. Defendant contends the trial court‟s decision not to

order the jail to reinstate his privileges denied him a “meaningful opportunity to

represent himself,” in violation of the Fifth, Sixth and Fourteenth Amendments to

the federal Constitution. No violation of his constitutional rights occurred.

We have held, as a general rule, that the federal and state constitutional

provisions concerning the assistance of counsel for criminal defendants include the

right to access “ „reasonably necessary defense services.‟ ” (People v. Blair

(2005) 36 Cal.4th 686, 732, quoting Corenevsky v. Superior Court (1984) 36

Cal.3d 307, 319-320.) In addition, “we have recognized that depriving a self-

represented defendant of „all means of presenting a defense‟ violates the right of

self-representation” under the Sixth Amendment to the federal Constitution.

(Blair, supra, 36 Cal.4th at p. 733, quoting People v. Jenkins (2000) 22 Cal.4th

900, 1040 (Jenkins).) “Thus, „a defendant who is representing himself or herself

may not be placed in the position of presenting a defense without access to a

telephone, law library, runner, investigator, advisory counsel, or any other means

of developing a defense.‟ ” (Blair, supra, 36 Cal.4th at p. 733.)11 But “the Sixth


In stating this rule in Jenkins, we cited Milton v. Morris (9th Cir. 1985) 767

F.2d 1443, 1445-1446 (Milton). (Jenkins, supra, 22 Cal.4th at p. 1040; see also
Taylor v. List (9th Cir. 1989) 880 F.2d 1040, 1047 (Taylor) [describing Milton as
holding “that the Sixth Amendment right to self-representation recognized in
Faretta includes a right of access to law books, witnesses, and other tools
necessary to prepare a defense”].) We note that other courts have reached
conclusions seemingly at odds with Milton concerning the government‟s duty to
provide resources for a defendant who has exercised his or her Faretta right. (See,
e.g., United States v. Cooper (10th Cir. 2004) 375 F.3d 1041, 1052 [“When a
prisoner voluntarily, knowingly and intelligently waives his right to counsel in a


Amendment requires only that a self-represented defendant‟s access to the

resources necessary to present a defense be reasonable under all the

circumstances.” (Blair, supra, 36 Cal.4th at p. 733.) In assessing the

reasonableness of the access provided under all the circumstances, “[i]nstitutional

and security concerns of pretrial detention facilities may be considered in

determining what means will be accorded to the defendant to prepare his or her

defense.” (Jenkins, supra, 22 Cal.4th at p. 1040.) We conclude that under the

facts here, defendant was provided with reasonable resources to present a defense.

First, we see nothing improper with the procedures by which defendant‟s in

propria persona privileges were restricted. We set forth the applicable law in

criminal proceeding, he is not entitled to access to a law library or other legal
materials.”]; Degrate v. Godwin (5th Cir. 1996) 84 F.3d 768, 769; United States v.
(6th Cir. 1990) 907 F.2d 42, 44; United States v. Pina (1st Cir. 1988) 844
F.2d 1, 5, fn. 1; United States ex rel. George v. Lane (7th Cir. 1983) 718 F.2d 226,
231 [“the offer of court-appointed counsel to represent a defendant satisfies the
constitutional obligation of a state to provide a defendant with legal assistance
under the Sixth and Fourteenth Amendments”]; see also United States v. Robinson
(9th Cir. 1990) 913 F.2d 712, 717 [“there is nothing constitutionally offensive
about requiring a defendant to choose between appointed counsel and access to
legal materials; the sixth amendment is satisfied by the offer of professional
representation alone”].) The United States Supreme Court has recognized that the
extent to which the government must provide publicly funded defense services to a
self-represented criminal defendant is an open issue in that court‟s jurisprudence.
(Kane v. Garcia Espitia (2005) 546 U.S. 9, 10 [noting split of authority in lower
courts, and concluding that no clearly established federal law existed for purposes
of federal habeas corpus review because “Faretta says nothing about any specific
legal aid that the State owes a pro se criminal defendant”].) Even to the extent
that we might be inclined to revisit our reliance on Milton, or to consider whether,
if that reliance was misplaced, our state Constitution affords indigent self-
represented defendants some higher level of protection than the federal
Constitution, we do not do so here because, as discussed further below, defendant
has not shown that he was denied reasonable resources necessary to present his
defense. (See People v. Lawley (2002) 27 Cal.4th 102, 147, fn. 18 [assuming for
sake of argument that a self-represented defendant “who is assisted by advisory
counsel is also entitled to access to a law library”].)


Wilson v. Superior Court (1978) 21 Cal.3d 816, 821-822: When a defendant has

been granted in propria persona privileges, “the privileges initially granted him

will not thereafter be restricted or terminated except for cause. We further

conclude violation of jail rules and/or a demonstrable necessity for administrative

segregation of a defendant who would otherwise constitute a threat to jail security

may justify such restriction or termination. We also conclude, however, that the

nature of a defendant‟s interest in exercising those privileges is such that except in

emergency situations, they may be restricted only after notice and hearing.

Restrictions that are an incidental result of disciplinary sanctions should therefore

follow only after a disciplinary proceeding; nonpunitive restrictions flowing from

the sheriff‟s determination that institutional security requires segregation or other

limitation on the movement of the defendant may be imposed only after a

classification hearing to establish the existence of cause for the restriction.

Although a court order is affected by restriction of pro. per. privileges, we do not

think that due process requires the disciplinary and classification hearings to be

held in court so long as provision is made for court review of the matter and for

the defendant to appear and be heard at the time of such court review on the

sheriff‟s application for modification of the order granting pro. per. privileges.”

(See also Bell v. Wolfish (1979) 441 U.S. 520, 540 [interests in effective

management of detention facilities can justify restrictions on the inmates‟

conditions of confinement]; Ferrel v. Superior Court (1978) 20 Cal.3d 888, 892

[“Limitations on or suspension of a defendant‟s pro. per. privileges . . . may be

necessary in certain circumstances as a result of a defendant‟s misconduct in jail.

(Fn. omitted.)”].) In the present case, there was substantial evidence supporting a

finding of cause for restricting defendant‟s privileges (his possession of a

sharpened prisoner-made weapon constituted a threat to jail security); defendant

was provided with notice and a hearing before disciplinary sanctions were


imposed; and the trial court reviewed the matter when defendant asked the court to

override the restrictions. Further, the trial court did not err in rejecting defendant‟s

request to overrule the jail‟s policies that would not permit the special

accommodations defendant requested.

Second, defendant was provided with other reasonable resources to present

his defense, namely, his court-appointed advisory counsel, investigator and legal

runner, who had the ability to provide him with legal materials and to make

telephone calls on his behalf. Indeed, in Jenkins we stated the controlling

principle: despite restrictions on the defendant‟s own access to defense resources,

“[w]hen the defendant has a lawyer acting as advisory counsel, his or her rights

are adequately protected.” (Jenkins, supra, 22 Cal.4th at p. 1040.)12 Although

defendant alleges on appeal that he was not able to contact his appointed

assistants, the record contains only defendant‟s unsworn statements to the trial

court complaining that restrictions on his use of the telephones made it “difficult”

to communicate. Indeed, the record shows advisory counsel and the investigator

were able to provide extensive pretrial assistance to defendant.

Therefore, defendant was not denied reasonable resources necessary to

present his defense under all the circumstances of this case, nor, to the extent he

claims so on appeal, can we conclude his decision to accept the appointment of

counsel for part of the trial was the result of any unconstitutional interference with

his Faretta right.


Defendant argues that Jenkins is not controlling because the defendant in

that case was represented by counsel, while defendant was not. In Jenkins,
however, the defendant was represented by counsel at the guilt phase only, and he
represented himself at the penalty phase. (Jenkins, supra, 22 Cal.4th at p. 930.)
We held that limitations on the resources available to the defendant during his
preparations for the penalty phase did not violate his constitutional rights. (Id. at
p. 1040.)


The three opinions of the United States Court of Appeals for the Ninth

Circuit upon which defendant relies in arguing that he was not provided adequate

resources to present his defense do not support a different conclusion. Advisory

counsel, which, as we stated above, is recognized as a resource adequately

protecting the defendant‟s rights, had not been appointed in either Milton, supra,
767 F.2d 1443, or Taylor, supra, 880 F.2d 1040. In addition, neither of those

cases involved the restriction of the defendant‟s access to defense resources based

upon disciplinary actions by the jail; both involved the unreasonable restriction of

access without any apparent legitimate cause. (Milton, supra, 767 F.2d at p. 1445

[“the state not only affirmatively failed to provide defense resources, but also

materially impeded use of the minimal tools for defense preparation which the trial

court tried to ensure,” and the state offered “no justification, such as cost or

security exigencies, for what occurred”]; Taylor, supra, 880 F.2d at p. 1048 [a

genuine issue of material fact existed when the prisoner alleged that jail personnel

denied him access to court-appointed law clerks and runners, prevented a witness

from testifying, and “so completely hindered [his] ability to prepare a defense that

his right to self-representation was denied,” and the state offered no evidence that

the actions were justified by security concerns].) The other case defendant relies

upon, Bribiesca v. Galaza (9th Cir. 2000) 215 F.3d 1015, is factually inapplicable

because it concerns the trial court‟s decision to deny the defendant‟s request to

proceed in propria persona, not any interference with his access to resources. That

case adds no support to defendant‟s claim, other than the court‟s recognition that

the defendant had a right to access to resources as stated in Milton, and that “[i]f

the state had unconstitutionally denied [the defendant] such access, that denial

would have been an independent basis for relief.” (Bribiesca, supra, 215 F.3d at

p. 1020.) As discussed above, however, defendant‟s access was not

unconstitutionally denied.


For these reasons, defendant has not demonstrated that the restriction of his

in propria persona privileges at the jail and the trial court‟s denial of his request to

order their restoration violated his constitutional rights.

C. Denial of Motion to Suppress Evidence

After the Denver police took Avery into custody, she provided information

about defendant‟s and Lee Harris‟s criminal activity in Kansas,13 and told the

police where they could find the two men. After midnight the same evening, the

police, acting on an existing Colorado arrest warrant, forcefully entered an

apartment at the address Avery gave them, and arrested Harris in a bedroom. On

top of a chest of drawers next to Harris was a yellow plastic bag. The bag was

open and the arresting officer could see that it contained jewelry. Meanwhile,

defendant had been arrested shortly after the police entered the same apartment

and he had climbed out of the bathroom window. The police seized the bag and

the jewelry inside it, two rings that defendant was wearing, and two rings that

Harris was wearing. The bag was from the shoe store in Lawrence, Kansas, where

defendant purchased a pair of shoes for Avery. The jewelry in the bag, as well as

the rings defendant and Harris were wearing, was identified as having belonged to

the Crumbs. The trial court denied defendant‟s motion to suppress this evidence

after a hearing at which several witnesses testified.14 Defendant contends the trial


Avery did not tell the authorities about the California murders until after

she had been transported to Kansas.


Defendant filed a motion to suppress this evidence in his first trial, which

the trial court also denied. We rejected the claim raised in defendant‟s first appeal
that his trial counsel was ineffective in pursuing that motion to suppress. (Moore,
supra, 47 Cal.3d at pp. 82-83.) The trial court allowed defendant to relitigate the
motion to suppress in the retrial proceedings because defendant‟s request to
represent himself during the first trial, which the federal court had concluded was
improperly denied, was made before the first suppression motion had been


court erred, and the admission of the jewelry in the bag seized inside the apartment

violated his rights under the Fourth Amendment of the federal Constitution

because the police entered the apartment pursuant to an arrest warrant rather than a

search warrant. We conclude that, even assuming a violation of defendant‟s

Fourth Amendment right, the admission of the challenged evidence was harmless

beyond a reasonable doubt.

The bag and the jewelry it contained corroborated Avery‟s testimony

regarding defendant‟s participation in the Crumbs‟ murders, testimony that clearly

was the key evidence of defendant‟s guilt. But the bag and the jewelry found

inside it were not the only, or even the most compelling, corroboration of Avery‟s

testimony. For example, substantial evidence other than Avery‟s testimony

supported finding that (1) defendant was the one who knew the victims, where

they lived and that they likely would be in possession of money and jewelry on the

date of the robbery, and (2) defendant, Avery and Harris, who all lived in

Colorado, stayed in a hotel near the victims‟ apartment around the time of the

murders. Most importantly, however, defendant himself was arrested while

wearing jewelry — the two rings — taken from the Crumbs, and defendant does

not challenge the admission of that evidence. In addition, both Harris and Avery

also were in possession of some pieces of the Crumbs‟ jewelry, aside from the

jewelry in the yellow bag.

The primary issue during the trial was not whether defendant was involved

in the crimes, but rather whether, as Avery testified, defendant personally

participated in the robbery and murders. The fact that police found the robbery

proceeds when they arrested defendant and Harris was not particularly strong

corroboration of Avery‟s testimony about who actually committed the robbery and

murders. From this evidence alone a jury might infer either that Harris and Avery

committed the crimes without defendant, and Harris shared the proceeds with


defendant (defendant‟s theory of the case), or that Harris, defendant and Avery

committed the crimes and Harris and defendant shared the proceeds (as Avery

testified). But defendant‟s possession of the Crumbs‟ rings when he was arrested

provided essentially the same corroboration as the remaining jewelry — except

that it is stronger evidence of his connection to the crimes. We conclude that in

light of Avery‟s testimony and the other corroborating evidence presented at trial

(especially defendant‟s own possession of the Crumbs‟ rings), any error in

denying the suppression motion was harmless beyond a reasonable doubt under

Chapman v. California (1967) 386 U.S. 18.

D. Assertedly Inadequate Notice of the Murder Charges and Lack of

Trial Court Jurisdiction

Defendant was charged with murdering the Crumbs willfully and

unlawfully and with malice aforethought in violation of section 187. He was not

specifically charged with first degree murder in violation of section 189 — that is,

murder committed in the course of committing an enumerated felony. Defendant

raises several claims related to the failure to separately charge him with felony

murder pursuant to section 189, rather than only malice murder under section 187.

We have previously rejected claims identical to defendant‟s, and he presents no

reason for us to reconsider those decisions. (See People v. Morgan (2007) 42

Cal.4th 593, 616-617 [stating “a defendant may be convicted of first degree

murder even though the indictment or information charged only murder with

malice in violation of section 187” and rejecting claims that trial court lacked

jurisdiction and improperly instructed the jury on first degree murder theories, and

that defendant received inadequate notice of prosecution‟s case theory.]; People v.

Hughes (2002) 27 Cal.4th 287, 369-370 (Hughes) [rejecting claim that People v.

Dillon (1983) 34 Cal.3d 441 implicitly overruled People v. Witt (1915) 170 Cal.


104, which held that first degree murder and felony murder are not separate


E. Asserted Trial Court Error in Failing to Limit Jury Instruction

Concerning Defendant’s Possession of Stolen Items

Because defendant was found in possession of the victims‟ jewelry when he

was arrested in Colorado, the trial court gave the jury the following instruction

based on CALJIC No. 2.15: “If you find that the defendant was in conscious

possession of recently stolen property, the fact of such possession is not by itself

sufficient to permit an inference that the defendant is guilty of the crimes charged.

Before guilt may be inferred, there must be corroborating evidence tending to prove

defendant‟s guilt. However, this corroborating evidence need only be slight and need

not by itself be sufficient to warrant an inference of guilt. [¶] As corroboration, you

may consider the attributes of possession, time, place, and manner, that the defendant

had an opportunity to commit the crime charged, the defendant‟s conduct, and any

other evidence which tends to connect the defendant with the crimes charged.”

Defendant contends giving this instruction constituted error because the trial

court‟s references to the “crimes charged” included the murder charges, and,

accordingly, the scope of the instruction was not limited to the “theft-related” charges.

We assume defendant‟s failure to object to this instruction at trial did not forfeit his

appellate claim. (See People v. Kelly (2007) 42 Cal.4th 763, 791 [a claim that an

instruction is not “correct in law” may be raised on appeal despite the failure to object

below].) We held in People v. Prieto (2003) 30 Cal.4th 226, 248-249 (Prieto) that

giving a nearly identical instruction in similar circumstances constituted error, and we

decline the Attorney General‟s invitation to reconsider that decision. (See also

People v. Gamache (2010) 48 Cal.4th 347, 375 (Gamache); People v. Coffman and

Marlow (2004) 34 Cal.4th 1, 101 (Coffman).) As we did in Prieto, we conclude the

error was harmless under the applicable standard. As we explain, contrary to


defendant‟s arguments that the error is one of federal constitutional magnitude, we

conclude the error is one of state law only, subject to the miscarriage of justice test

under People v. Watson (1956) 46 Cal.2d 818, 836 (Watson) — whether defendant

has established there exists a reasonable probability he would have obtained a more

favorable result if the error had not occurred. (Gamache, supra, 48 Cal.4th at p. 376.)

Initially, we note that the majority of the instruction at issue is an entirely

accurate statement of the law, even as related to charges of murder or other nontheft

offenses. We have long held that possession of recently stolen property by itself is

not sufficient to support a finding of guilt of any offense — including theft-related

offenses — and, accordingly, there must be other corroborating evidence of the

defendant‟s guilt. (People v. Boxer (1902) 137 Cal. 562, 564.) It is also accurate to

inform the jury that the corroborating evidence need not be sufficient to prove guilt by

itself (since it is combined with any additional inference of guilt the jury draws from

the defendant‟s possession of the fruits of the crime). Also, the factors listed in the

instruction may serve as corroboration of guilt if the jury so finds. (See Gamache,

supra, 48 Cal.4th at p. 375 [“CALJIC No. 2.15 is an instruction generally favorable to

defendants; its purpose is to emphasize that possession of stolen property, alone, is

insufficient to sustain a conviction for a theft-related crime.”].) The difficulty in

using this instruction in the context of nontheft offenses is the provision that the

corroboration of the defendant‟s guilt “need only be slight.” (CALJIC No. 2.15.) The

error we recognized in Prieto is not including a nontheft crime in the instruction, but

rather including the slight corroboration portion of the instruction when a nontheft

offense is involved.

We have not held, however, that this error (instructing the jury it could infer

defendant‟s guilt of murder based on his possessing recently stolen property with

other slight corroboration of guilt) is of federal constitutional magnitude, and we

reject defendant‟s three arguments to the contrary. First, informing the jury that it


may infer defendant‟s guilt of murder in these circumstances did not allow it to

convict defendant based on a “fundamentally incorrect theory of culpability.” The

instruction in no way altered the trial court‟s proper instructions concerning the

elements of murder that the prosecution was required to prove beyond a reasonable

doubt. The jury was instructed it could draw merely “an inference of guilt” from the

fact of possession with slight corroboration, which any rational juror would

understand meant he or she could consider this inference in deciding whether the

prosecution has established the elements of murder (and the other offenses) elsewhere

defined in the trial court‟s instructions. The instruction purported to explain to the

jury its proper consideration of a particular item of circumstantial evidence in

reaching a verdict on the charges; it did not alter the defining elements of those


In addition, the instruction, although erroneous in applying the slight

corroboration rule to the murder charge, did not create an improper permissive

inference under the federal Constitution. The federal due process clause “prohibits

the State from using evidentiary presumptions in a jury charge that have the effect of

relieving the State of its burden of persuasion beyond a reasonable doubt of every

essential element of a crime.” (Francis v. Franklin (1985) 471 U.S. 307, 313.)

Because permissive inferences, as opposed to mandatory inferences, do not

require that the jury reach a certain finding based on a predicate fact, the

prosecution‟s burden of persuasion is improperly diminished only if the

permissive inference is irrational. (Yates v. Evatt (1991) 500 U.S. 391, 402, fn. 7

[“A permissive presumption merely allows an inference to be drawn and is

constitutional so long as the inference would not be irrational”].)

Although we concluded in Prieto that the connection between a defendant‟s

guilt of nontheft offenses and his or her possession of property stolen in the crime

is not sufficiently strong to warrant application of the slight corroboration rule,


this does not mean that drawing a connection between possession and guilt is

irrational. Indeed, the United States Supreme Court has acknowledged explicitly

the logical connection between possession of the fruits of a crime and the

possessor‟s guilt of that crime, even when the crime at issue is a nontheft offense.

In Wilson v. United States (1896) 162 U.S. 613, 619-620, the high court stated:

“Possession of the fruits of crime, recently after its commission, justifies the

inference that the possession is guilty possession, and, though only prima facie

evidence of guilt, may be of controlling weight, unless explained by the

circumstances or accounted for in some way consistent with innocence.

[Citation.] [A prior case] held that, on an indictment for arson, proof that property

was in the house at the time it was burned, and was soon afterwards found in the

possession of the prisoner, raises a probable presumption that he was present and

concerned in the offence; and [another case held] that there is a like presumption

in the case of murder accompanied by robbery. Proof that defendant had in his

possession, soon after, articles apparently taken from the deceased at the time of

his death is always admissible, and the fact, with its legitimate inference, is to be

considered by the jury along with the other facts in the case in arriving at their

verdict.” (See also State v. Joyner (N.C. 1980) 269 S.E.2d 125, 132 [defendant‟s

recent possession of stolen property is circumstance tending to show defendant

was present in the victim‟s apartment at the time the rape occurred, and a

circumstance the jury could consider on question of defendant‟s guilt of larceny

and rape]; People v. Peete (1921) 54 Cal.App. 333, 346 [defendant‟s possession,

shortly after a homicidal death, of articles known to have belonged to decedent,

under circumstances that would justify inference of larceny, is sufficient to

establish defendant‟s guilt, especially when coupled with defendant‟s false

statements as to the whereabouts of missing person (decedent)].)


We cannot say, therefore, that it would have been irrational for the jury

here to draw an inference of defendant‟s guilt of the Crumb murders from his

possessing their property soon after the murders when there was other slight

corroboration of guilt, especially when it is likely the same person or persons who

killed the victims also took their belongings. (Cf. People v. Najera (2008) 43

Cal.4th 1132, 1138 [finding evidence of possession of recently stolen property is

not alone sufficient to prove guilt “does not derive from an extrinsic legal rule but,

rather, is apparent from the general rule governing the jury‟s consideration of

circumstantial evidence”]; People v. Yeoman (2003) 31 Cal.4th 93, 131 [ jury may

consider evidence that is not alone sufficient to convict].)

As we concluded in Prieto, the instruction‟s reference to slight

corroboration did not unconstitutionally lower the prosecution‟s burden of proving

each element of the crimes beyond a reasonable doubt: the instruction “did not

directly or indirectly address the burden of proof, and nothing in the instruction

absolved the prosecution of its burden of establishing guilt beyond a reasonable

doubt.” (Prieto, supra, 30 Cal.4th at p. 248.) Other instructions also properly

informed the jury of its duty to weigh the evidence, what evidence it may consider,

how to weigh that evidence, and the burden of proof. We decline defendant‟s

invitation to reconsider this conclusion. (See ibid., see also Gamache, supra, 48

Cal.4th at p. 376.)

We apply the Watson standard in assessing the harmfulness of the

instructional error, as we have done in Prieto, Coffman and Gamache. The key

evidence in this case was Terry Avery‟s testimony regarding the crimes; if the jury

believed her account, the evidence of defendant‟s guilt was overwhelming and the

erroneous instruction could have had no effect on the jury‟s decision.15 In light of


It is possible, of course, that the jury could have considered defendant‟s

possession of the stolen goods as corroboration of Avery‟s testimony, as was


the jury‟s verdicts, including the true findings on the allegations that defendant

personally used a firearm during the crimes (of which there was no evidence other

than Avery‟s testimony) and the “panoply of other instructions that guided the

jury‟s consideration of the evidence” (Coffman, supra, 34 Cal.4th at p. 101), we

conclude the instructional error was harmless. (Watson, supra, 46 Cal.2d at p.


F. Asserted Trial Court Error in Instructing the Jury Not to Consider

the Prosecution of Other Person

The trial court gave a modified version of CALJIC No. 2.11.5 as follows:

“There‟s been evidence in this case indicating that a person other than defendant

was or may have been involved in the crime for which the defendant is on trial.

[¶] There may be reasons why that person is not here on trial. Therefore, do not

discuss or give any consideration as to why the other person is not being

prosecuted in this trial or whether Lee Harris has been or will be prosecuted. Your

sole duty is to decide whether the People have proved the guilt of the defendant on

trial.” Defendant contends this instruction was erroneous because it told the jury

to ignore evidence concerning Terry Avery‟s possible motivation to implicate

defendant in the crimes — that she might have framed defendant for the crimes in

order to shift blame from herself and to receive immunity from prosecution.

Initially, we note that defendant forfeited his claim when he failed to object

to this instruction at trial. (People v. Williams (2010) 49 Cal.4th 405, 457 [failure

to request modification of CALJIC No. 2.11.5 where it properly applied to another

witness forfeits appellate claim of error].) In any event, for the same reasons

required by the trial court‟s instructions. (See CALJIC No. 3.11 [testimony of an
accomplice must be corroborated by other evidence connecting the defendant to
the offense].) This use of the evidence could not have been affected by the
erroneous instruction at issue here.


stated in Williams, we conclude there was no error. “ „[T]he giving of CALJIC

No. 2.11.5 is not error when it is given together with other instructions that assist

the jury in assessing the credibility of witnesses. [Citation.] That occurred here,

where the trial court instructed the jury it could consider any evidence of witness

credibility, including the existence or nonexistence of a bias, interest, or other

motive (CALJIC No. 2.20), and to consider the instructions as a whole (CALJIC

No. 1.01).‟ ” (Williams, supra, at pp. 457-458.) We also observe that here, the

likelihood the jury misinterpreted the instruction as applying to Avery is

diminished because only Lee Harris was specifically mentioned, and all the other

references were to a singular “person”; i.e., the most likely interpretation of the

instruction is that it applied only to Harris.16

G. Asserted Trial Court Error in Jury Instructions Concerning Direct

and Circumstantial Evidence

Defendant contends the trial court erred in instructing the jury with

CALJIC No. 2.01 — which is a cautionary instruction concerning the jury‟s

consideration of circumstantial evidence17 — without modifying the instruction to


Had the trial court replaced in the instruction the first generic “a person

other than defendant” with “Lee Harris,” rather than the subsequent “he or she”
found in the pattern instruction, there would have been no possibility of the jury‟s
having applied the instruction to its consideration of Avery‟s testimony.


CALJIC No. 2.01 provided that “a finding of guilt as to any crime may not

be based on circumstantial evidence unless the proved circumstances are not only
(1) consistent with the theory that the defendant is guilty of the crime, but (2)
cannot be reconciled with any other rational conclusion. [¶] Further, each fact
which is essential to complete a set of circumstances necessary to establish the
defendant‟s guilt must be proved beyond a reasonable doubt. In other words,
before an inference essential to establish guilt may be found to have been proved
beyond a reasonable doubt, each fact or circumstance on which the inference
necessarily rests must be proved beyond a reasonable doubt. [¶] Also, if the
circumstantial evidence as to any particular count permits two reasonable
interpretations, one of which points to the defendant‟s guilt and the other to his
innocence, you must adopt that interpretation that points to the defendant‟s


inform the jury to apply those same cautionary principles to its consideration of

direct evidence. Defendant forfeited his claim because he did not object to the

instruction despite many opportunities to do so. (People v. Catlin (2001) 26

Cal.4th 81, 149.) In any event, we recently rejected the identical claim, and

discern no reason to revisit our conclusion. (People v. Solomon (2010) 49 Cal.4th

792, 826-827.)

H. Assertedly Erroneous Admission of Penalty Phase Aggravating


Defendant raises several challenges to the admission of penalty phase

evidence concerning his unadjudicated criminal activity during incarceration. He

first challenges “as a general matter” the constitutionality of the admission of

unadjudicated criminal activity. Assuming this perfunctory claim is properly

raised under People v. Schmeck (2005) 37 Cal.4th 240, 303, we have consistently

held that the admission of unadjudicated criminal activity as aggravating evidence

at the penalty phase is constitutional. (See, e.g., People v. Valencia (2008) 43

Cal.4th 268, 311 (Valencia); People v. Avena (1996) 13 Cal.4th 394, 428-429.)

Defendant next challenges the admission of several other crime incidents as

improper under the state and federal Constitutions and state statutes because the

evidence allegedly was “misleading, unreliable and inflammatory,” and was

insufficient as a matter of law.18 He did not object during the trial to the evidence

innocence, and reject that interpretation that points to his guilt. [¶] If, on the other
hand, one interpretation of this evidence appears to you to be reasonable and the
other interpretation to be unreasonable, you must accept the reasonable
interpretation and reject the unreasonable.”


We note that the trial court did not instruct the jury with the elements of the

crimes implicated by defendant‟s conduct. Defendant did not request the
instructions, and the trial court had no duty to so instruct on its own motion.
(People v. Lewis (2001) 25 Cal.4th 610, 668.)


as being misleading, unreliable and inflammatory, and therefore has forfeited that

aspect of his claim. (People v. Partida (2005) 37 Cal.4th 428, 434-435.) In any

event, no reversible error occurred.

Both former and present section 190.3, factor (b) (factor (b)) provide that in

making the penalty determination, the trier of fact is to consider, if relevant, “ „The

presence or absence of criminal activity by the defendant which involved the use

or attempted use of force or violence or the expressed or implied threat to use

force or violence.‟ ” (People v. Phillips (1985) 41 Cal.3d 29, 70 (plur. opn.).) As

defendant points out, evidence admitted under this provision must establish that

the conduct was prohibited by a criminal statute and satisfied the essential

elements of the crime. (Id. at p. 72; People v. Boyd (1985) 38 Cal.3d 762, 778.)

The prosecution bears the burden of proving the factor (b) other crimes beyond a

reasonable doubt. (Boyd, supra, 38 Cal.3d at p. 778.)

Defendant contends the evidence regarding the incidents in which he fought

with other inmates at San Quentin prison was insufficient to establish that he

engaged in the “willful and unlawful use of force or violence upon the person of

another”; that is, that his acts constituted batteries in violation of section 242, or

“an unlawful attempt, coupled with a present ability, to commit a violent injury on

the person of another,” that is, assaults in violation of section 240. He appears to

argue that the evidence did not prove his actions were “unlawful” because he may

have been provoked, acting in self-defense, or engaging in “horseplay” or

mutually agreed upon combat with his foes. The evidence, however, did not raise

any legal justification for defendant‟s actions, and, therefore the prosecution was

not required to introduce evidence negating any possible justification for the

activities. (People v. Lucky (1988) 45 Cal.3d 259, 291.) In addition, “[v]oluntary

mutual combat outside the rules of sport is a breach of the peace, mutual consent is

no justification, and both participants are guilty of criminal assault. (See 1 Witkin,


Cal. Crimes (1963) § 171, p. 163.) Thus, where the prosecution‟s evidence shows

a jailhouse scuffle, the scene as witnessed does not suggest defendant may have

been acting in self-defense, and defendant presents no evidence in mitigation, a

finding of criminal assault is justified.” (Lucky, supra, at p. 291.) The evidence

concerning defendant‟s fights with other inmates was therefore properly admitted

and sufficient to support the jury‟s consideration of those incidents as aggravating


Defendant also contends the incident in which he threw his food tray in San

Quentin was not criminal, because he “threw his food tray at his cell bars and

some food hit” the correctional officer who was serving the food. Defendant‟s

characterization of the evidence is inaccurate. The officer testified that defendant

threw the tray at her, and that food “splattered all over [her].” This was sufficient

evidence for the jury to conclude that defendant had committed an assault or a

battery, and, therefore, the jury could consider this as aggravating evidence under

factor (b). (People v. Lewis (2006) 39 Cal.4th 970, 1053 [jury could infer from act

of throwing milk carton and hot coffee at a prison guard that the defendant had

“committed an unlawful and physically threatening act, i.e., an assault”]; People v.

Pinholster (1992) 1 Cal.4th 865, 961 [“throwing a cup of urine in a person‟s face

is a battery, since „[a]ny harmful or offensive touching constitutes an unlawful use

of force or violence‟ and thus a battery under section 243”].)

Defendant also contends the trial court erred in admitting evidence

concerning the fact that he possessed two shanks in jail. He asserts that the fact

that a shank was found on top of the conduit just above and outside the bars of his

cell was insufficient to allow the jury to consider it as aggravating evidence

because there was no proof — only, “bald speculation and conjecture” — that

defendant was the one who put the item there. The deputy testified, however, that

it would be difficult for anyone outside of the cell to reach the conduit, that anyone


attempting to do so would be in plain view of the cameras monitoring the tier, that

a person inside the cell could reach the shank with only his fingers being visible,

and that the cell areas are searched before a new inmate is placed in a cell. The

evidence therefore was sufficient for the jury to find that defendant possessed the


In addition, defendant asserts that an inmate‟s mere possession of a shank

when in custody, which violates section 4502, subdivision (a),19 does not involve

violence or an actual or implied threat of force or violence, as factor (b) requires.

He is mistaken. (People v. Martinez (2003) 31 Cal.4th 673, 697 [“mere

possession of a potentially dangerous weapon in custody involves an implied

threat of violence”]; People v. Harris (1981) 28 Cal.3d 935, 963 [possession of a

wire garrote and a prison-made knife while in jail “clearly involved an implied

threat to use force or violence”].) Defendant‟s reliance on People v. Cox (2003)

30 Cal.4th 916, 973, which held that the trial court erred when it considered the

defendant‟s possession of firearms under factor (b), is misplaced because Cox did

not involve an inmate‟s illegal possession of weapons while in custody. (See Cox

at p. 955 [firearms in question were found during a search of the defendant‟s car].)

Defendant next claims the trial court erred when it admitted testimony

concerning defendant‟s possession of a plastic baggie containing a liquid that the

deputy testified smelled like urine. He argues his possession of a baggie of urine

was not a crime, and therefore was not “criminal activity” as required under

Phillips and factor (b). The Attorney General counters that there was no

reasonable explanation for defendant‟s possession of the baggie other than he

intended to use it as weapon in committing a battery. The Attorney General does


Section 4502, subdivision (a), in relevant part prohibits persons confined in

a penal institution from possessing “any dirk or dagger or sharp instrument.”


not, however, point to a Penal Code section that specifically prohibits possession

of a baggie of urine in the manner that section 4502 prohibits an inmate‟s

possession of specific weapons. Possession of an item that is not otherwise

prohibited might be considered criminal when the person in possession has the

intent to commit a battery and has the present ability to do so, that is, when he or

she has committed an assault under section 240. To the extent the Attorney

General‟s argument implies that defendant‟s possession of the baggie of urine

constituted an attempt to commit an assault, no such crime exists. (In re James M.

(1973) 9 Cal.3d 517, 521-522.) Assuming for argument purposes that the

evidence of defendant‟s possession of the baggie of urine was insufficient to prove

beyond a reasonable doubt that he had the present ability to commit a battery, and

was erroneously admitted because it was not “criminal activity” under factor (b),

we conclude any error was harmless beyond a reasonable doubt. The jury heard

evidence of defendant‟s participation in three brutal murders, his conviction for

the armed robbery of a jewelry store, his escape from custody by overpowering a

deputy, taking his firearm and committing a carjacking with the weapon, and his

fighting and possessing other dangerous weapons while in custody. We have no

doubt that the jury would have reached the same verdict had the evidence of his

possession of the baggie of urine not been admitted at trial.

Defendant also challenges the admission of evidence regarding his

convictions in Colorado for robbery and escape from custody, and in Kansas for

murder, arguing this evidence did not come within the terms of the applicable

1977 death penalty statute.20 He claims that statute, which lacked a provision

similar to the present day section 190.3, factor (c) regarding the admission of a


Defendant here challenges specifically the admission of the fact of his

convictions, not other evidence regarding his having committed these offenses.


defendant‟s prior felony convictions,21 did not permit the admission of the fact of

a conviction as aggravating evidence. He also claims that the convictions at issue

were improperly admitted because they occurred after the crimes against the

Crumbs. Defendant, however, forfeited this claim by failing to object to the

evidence at trial. (Evid. Code, § 353; People v. Partida (2005) 37 Cal.4th 428,

434-435.) In any event, there was no error because the convictions were properly

admitted under factor (b) of the 1977 law as evidence of defendant‟s criminal

activity that “involved the use or attempted use of force or violence or the

expressed or implied threat to use force or violence.” (Former § 190.3, factor (b).)

As former Chief Justice George stated in his concurring opinion in People v. Ray,

the language of section 190.3 in the 1977 death penalty law “made it clear that the

prosecution could present evidence of criminal activity by the defendant involving

the use or threat of force or violence even if that activity had not resulted in a

conviction. At the same time, the Legislature implicitly confirmed that when the

defendant had been convicted of a crime involving the use or threat of force or

violence, the prosecution, of course, could rely upon that conviction to establish

„the presence . . . of criminal activity‟ for purposes of section 190.3, factor (b).”

(People v. Ray (1996) 13 Cal.4th 313, 367 (Ray) (conc. opn. of George, C.J.,

joined by Baxter, Werdegar, Lucas and Arabian, JJ.).) Interpreting the statute to

prohibit the introduction of evidence of convictions of violent offenses “would fly

in the face of past practice and would be quite impractical, compelling the

prosecution to relitigate fully — through the testimony of victims and witnesses

and the presentation of physical and documentary evidence — each violent crime

of which the defendant already had been convicted, and, at the same time,


Section 190.3, factor (c) provides: “In determining the penalty, the trier of

fact shall take into account any of the following factors if relevant: [¶]. . . [¶] (c)
The presence or absence of any prior felony conviction.”


prohibiting the prosecution from bringing to the jury‟s attention at the penalty

phase other violent criminal activity of the defendant that had resulted in a

conviction, whenever the physical evidence or witnesses presented in the earlier

proceedings no longer were available.” (Id. at pp. 367-368.) Accordingly,

defendant‟s convictions for robbery, escape and murder were properly admitted

under the then existing version of factor (b). In addition, because the factor (b)

evidence was admissible to prove defendant‟s violent propensities, the fact that the

convictions occurred after defendant participated in murdering the Crumbs was of

no moment. (People v. Hovey (1988) 44 Cal.3d 543, 577-579; People v. Balderas

(1985) 41 Cal.3d 144, 202.)

Defendant also claims the trial court‟s instruction to the jury concerning the

factor (b) evidence improperly removed from its consideration whether his acts

constituted criminal activity, i.e., violated a criminal statute. To the extent that we

may consider this claim under section 1259 despite defendant‟s failure to raise it

below (see § 1259 [an “appellate court may . . . review any instruction given, . . .

even though no objection was made thereto in the lower court, if the substantial

rights of the defendant were affected thereby”]), we recently rejected the identical

claim in People v. Harris (2008) 43 Cal.4th 1269, 1311-1312, and see no reason to

reconsider that decision.

Defendant further contends the trial court erred by not instructing the jury

on its own motion that it must find the criminal activity admitted as aggravating

evidence under factor (b) involved force or violence. To the contrary, this

preliminary finding was a legal decision for the trial court, and the absence of an

instruction did not violate defendant‟s statutory or constitutional rights. (People v.

Butler (2009) 46 Cal.4th 847, 872.)


I. Assertedly Erroneous Penalty Phase Instruction Concerning Jury


Defendant contends the trial court erred when it instructed the jury that it

was not required to unanimously find the factor (b) other-crimes evidence proved

beyond a reasonable doubt, because the court failed to also instruct the jury that it

need not be unanimous in finding proof of any mitigating factors. Defendant

forfeited the claim, however, because he failed to raise it at trial. (People v.

Hudson (2006) 38 Cal.4th 1002, 1011-1012 [“ „Generally, a party may not

complain on appeal that an instruction correct in law and responsive to the

evidence was too general or incomplete unless the party has requested appropriate

clarifying or amplifying language.‟ ”].) Even if we review the claim despite

defendant‟s failure to preserve the issue, it is without merit.

“When we review challenges to a jury instruction as being incorrect or

incomplete, we evaluate the instructions given as a whole, not in isolation.

[Citation.] „For ambiguous instructions, the test is whether there is a reasonable

likelihood that the jury misunderstood and misapplied the instruction.‟ ” (People

v. Rundle (2008) 43 Cal.4th 76, 149.) There is no right to parity of jury

instructions, as defendant appears to imply in his arguments; both parties simply

have the right to instructions that properly explain the law. The non-unanimity

instruction the trial court gave helped to avoid possible confusion regarding the

sentencing factor that had a burden of proof, by telling the jury that, unlike at the

guilt phase and despite the same beyond a reasonable doubt standard, unanimity

was not required. (See also People v. Jennings (1988) 46 Cal.3d 963, 988 [trial

court did not err by instructing the jury that unanimity was not required for factor

(b) evidence].) That we concluded the trial court‟s refusal to give a similar

instruction regarding mitigating evidence was not error in People v. Breaux (1991)

1 Cal.4th 281, 314-315, does not mean the prosecution has unconstitutionally


received preferential treatment. Moreover, in the present case there is no

reasonable likelihood the jury misunderstood the court‟s instruction to mean that

the jury was required to be unanimous regarding mitigating factors. Therefore, the

absence of a non-unanimity instruction regarding mitigating evidence did not

undermine defendant‟s constitutional rights.

J. Challenges to CALJIC No. 8.88

Defendant raises several familiar challenges to CALJIC No. 8.88, by which

the trial court instructed the jury on the process for reaching its penalty decision.

Defendant contends the instruction: (1) was vague and failed to properly describe

the factors weighing process; (2) contradicted the statutory language regarding the

relative weight of aggravating and mitigating factors that would justify a death

verdict; (3) improperly told the jury that a single mitigating factor could not justify

a life without the possibility of parole sentence; (4) failed to adequately describe

the scope of mitigation; and (5) misled the jury regarding the meaning of a

sentence of life without the possibility of parole. These alleged shortcomings, he

asserts, violated his federal and state constitutional rights. Despite defendant‟s

failure to object to the instruction at trial, we nonetheless may address the merits

of his contentions under section 1259 to the extent he alleges his substantial rights

were affected. As defendant acknowledges, however, we have previously rejected

these claims. Although defendant asks us to revisit our prior decisions, he

presents no compelling reason to do so, and we therefore reject his claims for the

reasons stated in those decisions. (See, e.g., People v. Page (2008) 44 Cal.4th 1,

55-58; Valencia, supra, 43 Cal.4th at pp. 308-310; Hughes, supra, 27 Cal.4th at p.

405; People v. Duncan (1991) 53 Cal.3d 955, 978; see also People v. Barnett

(1998) 17 Cal.4th 1044, 1176-1177 [“We have also squarely held that the CALJIC


instructions are adequate to inform the jurors of their sentencing responsibilities in

compliance with federal and state constitutional standards.”].)

K. Accomplices’ Case Dispositions

In the course of the trial, the jury learned that Avery had been granted

immunity and would not be prosecuted for her involvement in the Crumb murders.

In the same vein, defendant sought to introduce evidence that Harris had been

convicted and sentenced to life without the possibility of parole for the Crumb

murders, but the trial court excluded that evidence.22 The trial court also denied

defendant‟s request for a special instruction informing the jury it could consider

“the fact that the defendant‟s accomplice received a more [lenient] sentence as a

mitigating factor.” Defendant contends the trial court‟s rulings were erroneous

under state law and violated his rights under the state and federal Constitutions to

present mitigating evidence. We are not persuaded.

We have consistently held that evidence concerning coparticipants‟

sentences is properly excluded from the penalty phase of a capital trial because

such evidence is irrelevant. (People v. Brown (2003) 31 Cal.4th 518, 562-563;

People v. McDermott (2002) 28 Cal.4th 946, 1004-1005; People v. Beardslee

(1991) 53 Cal.3d 68, 111-112; People v. Johnson (1989) 47 Cal.3d 1194, 1249.)

Although defendant cites statutes of other jurisdictions providing for the jury‟s

consideration of such evidence in mitigation, such as, for example, section 3592,


Harris actually had been sentenced to death after his first trial, but we

reversed that judgment due to a violation of Harris‟s right to have a jury that
represented a fair cross-section of the community. (People v. Harris (1984) 36
Cal.3d 36, 59.) Harris was retried, convicted and sentenced to life without the
possibility of parole, but that judgment also was reversed, due to a violation of
Harris‟s right to testify in his defense. (People v. Harris (1987) 191 Cal.App.3d
819, 826.) The prosecution was barred from seeking the death penalty in the third
trial. (People v. Superior Court (Harris) (1990) 217 Cal.App.3d 1332, 1341.)


subdivision (a)(4) of Title 18 of the United States Code,23 decades ago we

acknowledged that the Florida courts similarly had adopted a contrary view, but

we found unpersuasive the reasoning supporting that position. (People v.

Belmontes (1988) 45 Cal.3d 744, 811-812.) As we stated in People v. Dyer (1988)

45 Cal.3d 26, 70, “the fact that a different jury under different evidence, found that

a different defendant should not be put to death is no more relevant than a finding

that such a defendant should be sentenced to death. Such evidence provides

nothing more than incomplete, extraneous, and confusing information to a jury,

which is then left to speculate: „Why did that jury do that? What was different in

that case? What did that jury know that we do not know?‟ [Fn. omitted.]” Any

attempt to answer these questions is further stymied by the normative nature of a

jury‟s penalty decision under California law. (See People v. Stitely (2005) 35

Cal.4th 514, 571-572 (Stitely).) Accordingly, the exclusion of the irrelevant

evidence of Harris‟s sentence and the refusal to give defendant‟s proposed

instruction, which was incorrect as a matter of law, were not error and did not

violate defendant‟s constitutional rights. (See Brown, supra, at pp. 562-563; Dyer,

supra, at pp. 69-71.)

We further point out that defendant‟s proposed instruction would not have

instructed the jury on its ability to consider the relative culpability of the

participants in the Crumbs‟ murders, as defendant appears to imply by his citations

to People v. Malone (1988) 47 Cal.3d 1, 58, and Green v. Georgia (1979) 442

U.S. 95, 97. The trial court did, in fact, instruct the jury, per the standard


This statute sets forth the mitigating and aggravating factors to be

considered in the penalty phase of a federal capital trial. Subdivision (a) provides,
in relevant part, “In determining whether a sentence of death is to be imposed on a
defendant, the finder of fact shall consider any mitigating factor, including the
following: [¶]. . . [¶] Another defendant or defendants, equally culpable in the
crime, will not be punished by death.” (18 U.S.C. § 3592, subd. (a)(4).)


instruction, that the jury was permitted to consider “whether or not defendant was

an accomplice to the offense and his participation in the commission of the offense

was relatively minor.”

Defendant‟s attempt on appeal to reshape the proposed instruction into one

concerning the credibility of Avery‟s testimony is similarly unavailing. The

proposed instruction would have called the jury‟s attention to Avery‟s “more

lenient” sentence (that is, no sentence at all), and directed it to consider that as a

mitigating factor in deciding defendant‟s sentence. Even if defendant at trial

actually intended the proposed instruction to draw the jury‟s attention to the

circumstance that Avery may have lied in order to receive a lenient sentence for

herself, the trial court would have properly denied defendant‟s request because the

language of his instruction would not have conveyed that meaning to the jury.

The trial court also had instructed the jury at the guilt phase to consider a witness‟s

“interest, or other motive” in assessing his or her credibility and, specifically, to

view accomplice testimony incriminating defendant with caution. The court

instructed the jury at the penalty phase that it was to follow the guilt phase

instructions, with an exception not relevant here. We therefore conclude that,

even if defendant‟s instruction could be viewed as addressing Avery‟s credibility,

the trial court was not required to give another instruction on the subject.

L. Asserted Violation of Due Process in Prosecution’s Assertedly

Inconsistent Positions at Defendant’s and Lee Harris’s Trials

Defendant contends the prosecutor violated his constitutional right to due

process by arguing inconsistent theories of culpability during the penalty phases of

Harris‟s and defendant‟s trials. According to defendant, at Harris‟s trial, the

prosecutor essentially argued that Harris was the mastermind of the crimes, and he

compelled defendant and Avery to participate, whereas at defendant‟s trial, the

prosecutor argued defendant was a coequal participant in planning and carrying


out the crimes. Notwithstanding defendant‟s arguments to the contrary, we reject

his claim on appeal for the same reasons we stated in People v. Sakarias (2000) 22

Cal.4th 596, 635. “[T]he asserted inconsistencies in prosecutorial theory were not

the subject of any proceeding in the trial court and, hence, neither the

inconsistencies nor any explanations the prosecutor may have been able to offer

appear in the appellate record . . . .” We also deny defendant‟s related motion

requesting that we take judicial notice of the transcripts of Harris‟s trials. (Id. at p.

636 [“to take notice under these circumstances and for the purpose requested

would be to augment improperly the appellate record”].) Defendant must raise his

due process claim in a petition for a writ of habeas corpus, not in his appeal. (Id.

at p. 635.)

M. Absence of Jury Instruction Regarding Requirement of

Corroboration of Terry Avery’s Penalty Phase Testimony

Defendant contends the trial court was required sua sponte to instruct the

jury it was necessary that it find corroboration of Terry Avery‟s testimony

regarding the details of the murder of Sam Norwood in Kansas. (See § 1111;

CALJIC No. 3.11.) Defendant is wrong: because he already had been convicted

of the Kansas crimes, it was not necessary to instruct the jury in this manner.

(People v. Hernandez (2003) 30 Cal.4th 835, 874; People v. Williams (1997) 16

Cal.4th 153, 276; People v. Easley (1988) 46 Cal.3d 712, 734 [giving

corroboration instructions when jury necessarily must find sufficient corroboration

because defendant already was convicted might result in jury focusing undue

significance on fact that accomplice testimony was corroborated, rather than on

penalty issue].)


N. Absence of Jury Instruction Concerning Presumption of Life


Defendant contends the trial court erred in failing to instruct the jury that

there is a presumption that the appropriate sentence in a capital case is life without

the possibility of parole. Defendant failed to request the instruction and therefore

forfeited the claim. In any event, we have rejected this claim in the past, as

defendant acknowledges, and do so again here. (People v. Jones (2003) 29

Cal.4th 1229, 1267; People v. Arias (1996) 13 Cal.4th 92, 190 [“If a death penalty

law properly limits death eligibility by requiring the finding of at least one

aggravating circumstance beyond murder itself, the state may otherwise structure

the penalty determination as it sees fit, so long as it satisfies the requirement of

individualized sentencing by allowing the jury to consider all relevant mitigating


O. Challenges to the Constitutionality of California’s Death Penalty


Defendant raises a number of constitutional challenges to California‟s death

penalty law that we have repeatedly rejected. He provides no persuasive reason

why we should reexamine our prior decisions.

“California homicide law and the special circumstances listed in section

190.2 adequately narrow the class of murderers eligible for the death penalty . . . .”

(People v. Demetrulias (2006) 39 Cal.4th 1, 43.)

Section 190.3, factor (a), which directs the jury to consider in determining

the penalty the “circumstances of the crime,” is neither impermissibly vague nor

overbroad, and it does not result in an arbitrary and capricious penalty

determination. (People v. Harris (2005) 37 Cal.4th 310, 365 (Harris); Stitely,

supra, 35 Cal.4th at p. 574; People v. Maury (2003) 30 Cal.4th 342, 439 (Maury).)

The use of the defendant‟s age as a potential aggravating factor under section


190.3, factor (i), is not unconstitutional due to vagueness. (Ray, supra, 13 Cal.4th

at p. 358.)

The jury may consider unadjudicated offenses under factor (b) as

aggravating factors without violating a defendant‟s rights to trial, confrontation, an

impartial and unanimous jury, due process, or a reliable penalty determination, or

the right not to be placed in double jeopardy. (People v. Sapp (2003) 31 Cal.4th

240, 316 (Sapp); People v. Bolden (2002) 29 Cal.4th 515, 566; People v.

Bacigalupo (1991) 1 Cal.4th 103, 134-135.) Further, there is no constitutional

infirmity in having the same jury that determined defendant‟s guilt also determine

whether he committed other offenses admitted as aggravating evidence at the

penalty phase. (People v. Hawthorne (1992) 4 Cal.4th 43, 77.)

“The 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.” (People v. Snow (2003) 30 Cal.4th 43, 126.) The decisions in

Ring v. Arizona (2002) 536 U.S. 584, Apprendi v. New Jersey (2000) 530 U.S.

466, and Cunningham v. California (2007) 549 U.S. 270 do not affect California‟s

death penalty law. (People v. Romero (2008) 44 Cal.4th 386, 429; People v. Smith

(2003) 30 Cal.4th 581, 642.) “ „Because the determination of penalty is essentially

moral and normative [citation], and therefore different in kind from the

determination of guilt,‟ the federal Constitution does not require the prosecution to

bear the burden of proof or burden of persuasion at the penalty phase.

[Citations.]” (Sapp, supra, 31 Cal.4th at p. 317.)

The use of the terms “extreme,” “substantial,” “reasonably believed,” and

“at the time of the offense” in the statutory list of potential mitigating factors does

not impermissibly restrict the jury‟s consideration of evidence in mitigation or


otherwise result in an arbitrary or capricious penalty determination. (Harris,

supra, 37 Cal.4th at p. 365; Sapp, supra, 31 Cal.4th at p. 316; Maury, supra, 30

Cal.4th at p. 439.)

To the extent we may consider under section 1259 defendant‟s challenges

to the penalty phase instructions even though he failed to object to the instructions,

those challenges are without merit. With the exception of prior violent crimes

under former section 190.3, factor (b), the court need not instruct on burden of

proof at the penalty phase. (People v. Box (2000) 23 Cal.4th 1153, 1216; People

v. Bonillas (1989) 48 Cal.3d 757, 789-790; People v. Rodriguez (1986) 42 Cal.3d

730, 777-779.) Nor was the trial court required to designate which sentencing

factors are mitigating and which are aggravating. (People v. Taylor (2001) 26

Cal.4th 1155, 1180.) “The trial court need not omit from the instructions any

mitigating factors that appear not to apply to the defendant‟s case.” (People v.

Alexander (2010) 49 Cal.4th 846, 938.)

Defendant also claims the court erred in failing to conduct intercase

proportionality review when it examined the death verdict. We have consistently

held, however, that there is no requirement that the trial court or this court engage

in intercase proportionality review when examining a death verdict. (See, e.g.,

Sapp, supra, 31 Cal.4th at p. 317.)

Because capital defendants are not similarly situated to noncapital

defendants, the absence in California‟s death penalty law of certain procedural

rights provided to noncapital defendants does not violate equal protection.

(People v. Johnson (1992) 3 Cal.4th 1183, 1242-1243; People v. Allen (1986) 42

Cal.3d 1222, 1286-1287.)

“ „International law does not prohibit a sentence of death rendered in

accordance with state and federal constitutional and statutory requirements.‟

[Citation.] Defendant‟s claim that the death penalty is imposed regularly as a form


of punishment in this state „is a variation on the familiar argument that

California‟s death penalty law does not sufficiently narrow the class of death-

eligible defendants to limit that class to the most serious offenders, a contention

we have rejected in numerous decisions.‟ [Citations.]” (People v. Carey (2007)

41 Cal.4th 109, 135).

P. Asserted Cumulative Error

Defendant contends the cumulative effect of the asserted errors he has

raised on appeal requires reversal of his conviction and sentence, even if none of

the errors is prejudicial individually. We reject his claim. In those few instances

in which we have found error or assumed the existence of error, we have

concluded that any error was harmless. In combination, these errors do not

compel the conclusion that defendant was denied a fair trial.


We affirm the judgment in its entirety.




* Associate Justice of the Court of Appeal, Third Appellate District, assigned by
the Chief Justice pursuant to article VI, section 6 of the California Constitution.


See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Moore

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted


Opinion No.
Date Filed: June 23, 2011

County: Los Angeles
Judge: James Pierce



Cynthia A. Thomas and Cliff Gardner, under appointments by the Supreme Court, for Defendant and

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Mary Jo Graves and Dane R. Gillette,
Chief Assistant Attorneys General, Pamela C. Hamanaka, Assistant Attorney General, John R. Gorey,
Sharlene A. Honnaka, Susan D. Martynec and Daniel C. Chang, Deputy Attorneys General, for Plaintiff
and Respondent.

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

Cliff Gardner
1448 San Pablo Avenue
Berkeley, CA 94702
(510) 524-1093

Daniel C. Chang
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-2395

Automatic appeal from a judgment of death.

Opinion Information
Date:Docket Number:Category:Status:Cross Referenced Cases:
Thu, 06/23/2011S075726Automatic Appealsubmitted/opinion due


1The People (Respondent)
Represented by Attorney General - Los Angeles Office
Daniel C. Chang, Deputy Attorney General
300 S. Spring Street, 5th Floor
Los Angeles, CA

2Moore, Charles Edward (Appellant)
San Quentin State Prison
Represented by Michael G. Millman
California Appellate Project
101 Second Street, Suite 600
San Francisco, CA

3Moore, Charles Edward (Appellant)
San Quentin State Prison
Represented by Cliff Gardner
Law Office of Cliff Gardner
1448 San Pablo Avenue
Berkeley, CA

Dec 7 1998Judgment of death
Dec 31 1998Filed certified copy of Judgment of Death Rendered
Dec 31 1998Penal Code sections 190.6 et seq. apply to this case
Mar 5 1999Record certified for completeness
Sep 9 2003Filed:
  application for appointment of counsel form. (IFP form) Note: Moore wants "to go pro per."
Sep 10 2003Counsel appointment order 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, Cynthia A. Thomas is appointed to represent appellant Charles Edward Moore for the direct appeal in the above automatic appeal now pending in this court.
Sep 18 2003Received:
  notice from superior court that record was sent to appellant's counsel on 9-16-2003.
Sep 22 2003Date trial court delivered record to appellant's counsel
  (5,548 pp. record) (see Calif. Rules of Court, rule 39.50(c); the date of delivery is the date of mailing plus five days.)
Sep 22 2003Appellant's opening brief letter sent, due:
  April 19, 2004.
Nov 10 2003Counsel's status report received (confidential)
  from atty Thomas.
Jan 13 2004Counsel's status report received (confidential)
  from atty Thomas.
Apr 19 2004Request for extension of time filed
  to file AOB. (1st request)
Apr 20 2004Extension of time granted
  to 6-18-2004 to file AOB.
Jun 14 2004Received copy of appellant's record correction motion
  Application to correct and complete the record on appeal. (14 p.)
Jun 25 2004Request for extension of time filed
  to file appellant's opening brief. (2nd request)
Jul 13 2004Filed:
  Supplemental declaration in support of application for extension of time to file appellant's opening brief.
Jul 15 2004Extension of time granted
  to 8/17/2004 to file appellant's opening brief.
Aug 20 2004Request for extension of time filed
  to file appellant's opening brief. (3rd request)
Aug 25 2004Extension of time granted
  to 10/18/2004 to file appellant's opening brief.
Oct 8 2004Record certified for accuracy
Oct 12 2004Counsel's status report received (confidential)
  from atty Thomas.
Oct 12 2004Compensation awarded counsel
  Atty Thomas
Oct 20 2004Compensation awarded counsel
  Atty Thomas
Oct 21 2004Request for extension of time filed
  to file appellant's opening brief. (4th request)
Oct 25 2004Extension of time granted
  to 12/17/2004 to file appellant's opening brief.
Nov 22 2004Record on appeal filed
  Clerk's transcript 23 volumes (4,066 pages) and Report's transcript 23 volumes (2,114 pages), including material under seal; ASCII disks. Clerk's transcript includes 1,482 pp of juror questionnaires.
Nov 22 2004Letter sent to:
  counsel advising that record on appeal, certified for accuracy, was filed this date.
Dec 22 2004Request for extension of time filed
  to file appellant's opening brief. (5th request)
Dec 30 2004Extension of time granted
  to 2/15/2005 to file appellant's opening brief. After that date, only three further extensions totaling about 150 additional days will be granted. Extension is granted based upon counsel Cynthia A. Thomas's representation that she anticipates filing that brief by 7/2005.
Feb 18 2005Request for extension of time filed
  to file appellant's opening brief. (6th request)
Feb 24 2005Extension of time granted
  to 4/18/2005 to file appellant's opening brief. After that date, only two further extensions totaling about 90 additional days will be granted. Extension is granted based upon counsel Cynthia A. Thomas's representation that she anticipates filing that brief by 7/2005.
Apr 19 2005Request for extension of time filed
  to file appellant's opening brief. (7th request)
Apr 21 2005Extension of time granted
  to 6/17/2005 to file appellant's opening brief. After that date, only one further extension totaling about 30 additional days is contemplated. Extension is granted based upon counsel Cynthia A. Thomas's representation that she anticipates filing that brief by 7/2005.
Jun 22 2005Request for extension of time filed
  to file appellant's opening brief. (8th request)
Jun 24 2005Extension of time granted
  to 8/16/2005 to file appellant's opening brief. Extension is granted based upon counsel Cynthia A. Thomas's representation that she anticipates filing that brief by 8/16/2005. After that date, no further extension is contemplated.
Aug 19 2005Request for extension of time filed
  to file appellant's opening brief. (9th request)
Aug 24 2005Extension of time granted
  to 9/2/2005 to file appellant's opening brief. Extension is granted based upon counsel Cynthia A. Thomas's representation that she anticipates filing that brief by 9/2/2005. After that date, no further extension will be granted.
Sep 21 2005Application for relief from default filed
  to file appellant's opening brief. (45,359 word; 165 pp. brief submitted under separate cover)
Feb 14 2006Counsel's status report received (confidential)
  from atty Thomas.
Mar 27 2006Received:
  55,061 word appellant's opening brief. Counsel advised to submit application for relief from default.
Mar 30 2006Application for relief from default filed
  to file appellant's opening brief.
Apr 5 2006Order filed
  appellant's application for relief from default to file appellant's opening brief is granted.
Apr 5 2006Appellant's opening brief filed
  (55,061 words; 246 pp.)
Apr 5 2006Respondent's brief letter sent; due:
  August 3, 2006
Jul 27 2006Request for extension of time filed
  to file respondent's brief. (1st request)
Jul 31 2006Extension of time granted
  to October 2, 2006 to file respondent's brief.
Aug 30 2006Compensation awarded counsel
  Atty Thomas
Sep 13 2006Compensation awarded counsel
  Atty Thomas
Sep 28 2006Request for extension of time filed
  to file respondent's brief. (2nd request)
Oct 11 2006Extension of time granted
  to December 1, 2006 to file respondent's brief. Extension is granted based upon Supervising Deputy Attorney General Susan D. Martynec's representation that she anticipates filing that brief by December 1, 2006. After that date, no further extension is contemplated.
Nov 28 2006Request for extension of time filed
  to file respondent's brief. (3rd request)
Dec 8 2006Extension of time granted
  to January 30, 2007 to file respondent's brief. based upon Supervising Deputy Attorney General Susan D. Martynec's representation that she anticipates filing that brief by January 30, 2007. After that date, no further extension is contemplated.
Jan 30 2007Respondent's brief filed
  37462 words; 120 pp.)
Feb 1 2007Note:
  appellant's reply brief due: April 2, 2007. (see Cal. Rules of Court, rule 8.630(c)(1),(D))
Apr 2 2007Request for extension of time filed
  to file appellant's reply brief. (1st request)
Apr 5 2007Extension of time granted
  to April 30, 2007 to file appellant's reply brief. Extension is granted based upon counsel Cynthia Thomas's representation that she anticipates filing that brief by April 30, 2007. After that date, no further extension is contemplated.
May 2 2007Request for extension of time filed
  to file appellant's reply brief. (2nd request)
May 7 2007Filed:
  supplemental declaration in support of application for extension of time to file appellant's reply brief.
May 10 2007Request for extension of time filed
  (amended) application for extension of time to file reply brief.
May 17 2007Extension of time granted
  to June 11, 2007 to file appellant's reply brief. After that date, no further extension is contemplated. Extension is granted based upon counsel Cynthia Thomas's representation that she anticipates filing that brief by June 10, 2007.
Jun 14 2007Request for extension of time filed
  to file appellant's reply brief. (3rd request)
Jun 18 2007Extension of time granted
  to July 11, 2007 to file appellant's reply brief. After that date, no further extension is contemplated. Extension is granted based upon counsel Cynthia A. Thomas's representation that she anticipates filing that brief by July 11, 2007.
Jul 11 2007Received:
  appellant's reply brief.
Jul 27 2007Received:
  application for relief from default and request for an extension of time to file appellant's reply brief.
Jul 31 2007Received:
  letter from attorney Cynthia Thomas, dated July 30, 2007, asking permission to submit a revised appellant's reply brief.
Aug 1 2007Note:
  in response to attorney Cynthia Thomas's letter of July 30, 2007, the unfiled appellant's reply brief was returned to her this date.
Aug 3 2007Extension of time granted
  Appellant's request for relief from default is granted. Good cause appearing, and based upon counsel Cynthia A. Thomas's representation that she anticipates filing the appellant's reply brief by September 11, 2007, counsel's request for an extension of time in which to file that brief is granted to September 11, 2007. After that date, no further extension is contemplated.
Sep 25 2007Application for relief from default filed
  by appellant with request for extension of time.
Sep 25 2007Request for extension of time filed
  to file appellant's reply brief. (4th request)
Oct 1 2007Extension of time granted
  Appellant's request for relief from default is granted. Good cause appearing, and based upon counsel Cynthia Thomas's representation that she anticipates filing the appellant's reply brief by October 25, 2007, counsel's request for an extension of time in which to file that brief is granted to October 25, 2007. After that date, no further extension is contemplated.
Nov 2 2007Filed:
  appellant's request for relief from default and permission to file reply brief. (reply brief submitted under separate cover).
Nov 5 2007Order filed
  Appellant's "Request for Relief From Default and Permission to File Appellant's Reply Brief" is granted.
Nov 5 2007Appellant's reply brief filed
  (12,845 words; 66 pp.)
Feb 14 2008Compensation awarded counsel
  Atty Thomas
Feb 28 2008Compensation awarded counsel
  Atty Thomas
Sep 11 2008Oral argument letter sent
  advising counsel that the court could schedule this case for argument as early as the December calendar, to be held the week of December 1, 2008, in Los Angeles. 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.
Oct 22 2008Case ordered on calendar
  to be argued on Tuesday, December 2, 2008, at 2:00 p.m., in Los Angeles.
Nov 3 2008Received:
  appearance sheet from Deputy Attorney General, Susan D. Martynec, indicating 45 minutes for oral argument for respondent.
Nov 7 2008Filed:
  respondent's focus issues letter, dated November 4, 2008.
Nov 7 2008Received:
  appellant's focus issues letter, dated November 3, 2008.
Dec 2 2008Cause argued and submitted
Jan 15 2009Filed:
  letter from appellant's counsel Cynthia Thomas, dated January 12, 2009, advising that she was not eligible to practice law when she appeared at oral argument on December 2, 2008.
Jan 15 2009Letter sent to:
  attorney Cynthia Thomas in response to her letter dated January 12, 2009.
Jan 21 2009Submission vacated
  Submission of the appeal in this matter is hereby vacated. On the court's own motion, the appointment of counsel Cynthia A. Thomas is vacated. Until further order of the court, Michael G. Millman, Executive Director of the California Appellate Project in San Francisco, is hereby appointed as interim lead appellate counsel of record for appellant Charles Edward Moore. The matter will be resubmitted after questions concerning appellant's legal representation are resolved and the appeal is ready for presentation to the court. Ms. Thomas is hereby directed to deliver to Mr. Millman, within 30 days from the filing of this order, all case transcripts, case files, appellate work product, trial files, 60-day status reports and all related materials that she has obtained from appellant Moore, from Moore's trial counsel, from prior appellate counsel, or from any other source. Ms. Thomas is hereby referred to the State Bar of California for appropriate disciplinary proceedings in light of her appearance for argument before this court on behalf of appellant while she was actually suspended by the State Bar of California from the practice of law.
Jan 21 2009Letter sent to:
  the State Bar of California regarding referral.
Jul 8 2009Counsel appointment order filed
  On the court's own motion, the order appointing Michael G. Millman, in his capacity as Executive Director of the California Appellate Project in San Francisco, as interim lead appellate counsel of record for appellant Charles Edward Moore, filed January 21, 2009, is hereby vacated. Cliff Gardner is hereby appointed as counsel of record to represent appellant Charles Edward Moore for the direct appeal in the above automatic appeal now pending in this court.
Jul 8 2009Letter sent to:
  attorney Cliff Gardner regarding his appointment as replacement appeal counsel. Although the appeal is fully briefed, he will have the opportunity to read the record on appeal and file any necessary supplemental briefing. Confidential case status reports are to be submitted every 60 days, which chronicle his progress in reviewing the record and the briefing already on file. The court will set an initial due date for any necessary supplemental opening brief approximately one year from this date.
Jul 9 2009Compensation awarded counsel
  Atty Gardner
Sep 10 2009Counsel's status report received (confidential)
Appellant: Moore, Charles EdwardAttorney: Cliff Gardner  
Nov 9 2009Counsel's status report received (confidential)
Appellant: Moore, Charles EdwardAttorney: Cliff Gardner  
Dec 23 2009Compensation awarded counsel
  Atty Gardner
Jan 11 2010Counsel's status report received (confidential)
Appellant: Moore, Charles EdwardAttorney: Cliff Gardner  
Feb 18 2010Compensation awarded counsel
  Atty Gardner
Mar 12 2010Counsel's status report received (confidential)
Appellant: Moore, Charles EdwardAttorney: Cliff Gardner  
May 10 2010Counsel's status report received (confidential)
Appellant: Moore, Charles EdwardAttorney: Cliff Gardner  
Jul 8 2010Letter sent to:
  to attorney Cliff Gardner advising that appellant's supplemental opening brief will be due on or before January 4, 2011.
Jul 9 2010Counsel's status report received (confidential)
Appellant: Moore, Charles EdwardAttorney: Cliff Gardner  
Aug 2 2010Change of contact information filed for:
  Cliff Gardner, Attorney at Law
Sep 8 2010Counsel's status report received (confidential)
Appellant: Moore, Charles EdwardAttorney: Cliff Gardner  
Nov 4 2010Counsel's status report received (confidential)
Appellant: Moore, Charles EdwardAttorney: Cliff Gardner  
Nov 29 2010Supplemental brief filed
Appellant: Moore, Charles EdwardAttorney: Cliff Gardner   appellant's supplemental opening brief (25,564 words; 98 pp.)
Nov 29 2010Letter sent to:
  respondent advising that the supplemental respondent's brief is to be served and filed on or before December 29, 2010. Appellant's supplemental reply brief will be due 30 days after the service and filing of the supplemental respondent's brief.
Dec 3 2010Request for judicial notice filed (Grant or AA case)
Appellant: Moore, Charles EdwardAttorney: Cliff Gardner   by appellant.
Dec 20 2010Opposition filed
Respondent: The PeopleAttorney: Attorney General - Los Angeles Office   by respondent, "Respondent's Opposition to Appellant's Application for Judicial Notice"
Dec 23 2010Request for extension of time filed
  to file supplemental respondent's brief. (1st request)
Dec 27 2010Filed:
  by appellant, "Reply to State's Opposition to Application for Judicial Notice".
Dec 29 2010Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file supplemental respondent's brief is extended to and including February 28, 2011.
Jan 13 2011Order filed
  The order filed on December 29, 2010, is amended as follows: In order to facilitate oral argument in this case by June 2011, the time to serve and file the supplemental respondent's brief is extended to and including February 28, 2011. Appellant's supplemental reply brief is to be served and filed by March 30, 2011. No further extensions of time will be granted absent extraordinary circumstances.
Mar 1 2011Supplemental brief filed
Respondent: The PeopleAttorney: Attorney General - Los Angeles Office   by respondent, "Supplmental Respondent's Brief" (12,029 words; 41 pp.)
Mar 11 2011Supplemental brief filed
Appellant: Moore, Charles EdwardAttorney: Cliff Gardner   by appellant. (9,507 words; 37 pp.) appellant's supplemental reply brief
Mar 23 2011Compensation awarded counsel
  Atty Gardner
Apr 6 2011Case ordered on calendar
  to be argued Thursday, May 5, 2011, at 9:00 a.m., in San Francisco
Apr 8 2011Justice pro tempore assigned
  Hon. Harry E. Hull, Jr. Third Appellate District
Apr 15 2011Received:
  appearance sheet for Deputy Attorney General, Daniel Chang, indicating 45 minutes for oral argument for respondent.
Apr 18 2011Received:
  appearance sheet from Attorney at Law, Cliff Garnder, indicating 30 minutes for oral argument for appellant.
Apr 18 2011Filed:
  respondent's focus issues letter, dated April 18, 2011 (delivered via FAX, original and copies will be mailed via Overnight Mail)
Apr 18 2011Filed:
  appellant's focus issues letter, dated April 15, 2011
Apr 21 2011Filed:
  appellant's amended focus issues letter, dated April 19, 2011
May 5 2011Cause argued and submitted
May 18 2011Compensation awarded counsel
  Atty Gardner
Jun 22 2011Notice of forthcoming opinion posted
  To be filed Thursday, June 23, 2011 at 10 a.m.

Apr 5 2006Appellant's opening brief filed
Jan 30 2007Respondent's brief filed
Nov 5 2007Appellant's reply brief filed
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website