Supreme Court of California Justia
Docket No. S023835
People v. Morrison

Filed 12/9/04


Plaintiff and Respondent,
Los Angeles County
Super. Ct. No. A043591
Defendant and Appellant.

Defendant Jesse Morrison was convicted by a jury of one count of first
degree murder (Pen. Code, § 187, subd. (a)),1 one count of second degree robbery
(§ 211), one count of first degree burglary (§ 459), and two counts of attempted
murder (§§ 664, 187, subd. (a)). The jury found true the special circumstances
that defendant committed the murder while engaged in burglary and robbery
(§ 190.2, subd. (a)(17)) and found true the allegation that defendant personally
used a firearm in the commission of the murder (§§ 1203.06, subd. (a)(1),
12022.5). At the penalty phase of trial, the jury returned a verdict of death.
Appeal to this court is automatic. (§ 1239, subd. (b).)
We find no prejudicial error at the guilt or penalty phase of defendant’s
trial. We therefore affirm the judgment in its entirety.

All further statutory references are to the Penal Code unless otherwise

A. The Guilt Phase
Lourdes Cardenas lived on Marine Avenue in Wilmington with her four-
month-old daughter Natalie, her 22-year-old brother Cesar Cardenas, and her
mother Maria Cardenas.2 In the early morning hours of May 11, 1989, defendant
and three others invaded the Cardenas home and demanded money at gunpoint.
After Lourdes handed over money and jewelry, the intruders fired their weapons,
leaving Cesar fatally wounded and Lourdes seriously injured.
1. The Prosecution Case
In 1989, Lourdes worked as a pharmacy technician at a hospital. Cesar
operated a printing business out of the family home.
At approximately 8:00 p.m. on May 10, 1989, defendant came to the
Cardenas home with one other person to discuss a printing job with Cesar, who
was not home. Defendant, who identified himself as “Jesse,” and the other person
told Lourdes they would come back later.
Around 9:00 or 9:30 p.m., defendant returned to the Cardenas home with
Michael Berry, Michael’s brother Shawn Berry, and a teenage boy named Nathan.
Lourdes knew the Berry brothers from her previous neighborhood in Carson, and
the brothers knew her other brother, Alex Cardenas. Cesar, who was then home,
took the four visitors to the garage, where he kept his printing press. All five
eventually went inside the house and talked. Shawn Berry had something to eat.
While the four visitors were in the kitchen, Alex telephoned the house. He
spoke with Lourdes and then with Michael Berry. Afterwards, Shawn Berry used

For the sake of brevity, we will sometimes refer to the individual members
of the Cardenas family by their first names only.

the telephone to order a pizza. The four left the house about 25 to 30 minutes after
they had arrived.
That night Lourdes was awakened from her sleep when, sometime after
midnight, she heard Cesar call her name. Seeing a man in her house, Lourdes got
out of bed, grabbed Natalie from her crib, and walked toward her open bedroom
door. There were three men in the lighted hallway: Michael Berry, Nathan, and
defendant. Michael Berry was standing with a gun by the door to Lourdes’s
bedroom. Defendant and Nathan had guns and were in the hallway between
Lourdes’s and Cesar’s bedrooms. Shawn Berry was standing in the living room.
According to Lourdes, the intruders were “demanding money and telling us to just
not do anything stupid and to give them what they wanted.”
At some point, defendant went into Lourdes’s room and “shuffled things
around.” He then directed Cesar into his bedroom, followed him in, and shut the
door. Meanwhile, Lourdes opened a yellow canister in her bedroom and gave
Michael Berry $2,000 in cash that she had earmarked to pay the hospital bill for
the birth of her baby. She also handed over jewelry from a box on her dresser.
While standing in her bedroom doorway, Lourdes heard gunshots from
Cesar’s bedroom. Defendant exited the bedroom, and Lourdes could see Cesar
lying on his bed. Both defendant and Michael Berry then fired their guns at
Lourdes, who was carrying Natalie. Lourdes was hit in the head and chest, but she
managed to throw her baby safely to the floor.
Lourdes’s mother, Maria, was asleep in her bedroom when the intruders
came. She heard voices and got up. Upon opening her bedroom door, Maria saw
men with guns demanding money. One was aiming a gun at Lourdes, who was
holding baby Natalie. Then one man pointed a gun at Maria, directed her to lie
down on the bed in her bedroom, and repeatedly ordered her to stay there and not
move. Maria jumped behind her bed when she heard shots fired. Subsequent

examination of Maria’s bedroom showed a row of bullet holes in a straight line
from one edge of the bed, across the sheets and mattress, and into the edge of a
After the four intruders left, Lourdes called 911. She checked on Natalie
and her mother; they were not physically harmed. Cesar, however, was lying
motionless on his bed. A neighbor, John Hernandez, came running to the
Cardenas house after hearing screams and gunshots. He tried to stop Lourdes’s
bleeding with rags, and called 911.
Sergeant Gary Twiford of the Los Angeles Police Department arrived at the
Cardenas residence at approximately 12:30 a.m. on May 11, 1989. He saw
Hernandez comforting Lourdes, who appeared to have gunshot wounds to the face
and chest. Sergeant Twiford recalled that Lourdes “looked like she was going to
lapse into unconsciousness or else going to die right on the spot.”3 He asked
Lourdes who was responsible for the shooting. She responded: “Shawn Berry,
Michael Berry and a male Negro by the name of Jesse.”
Sergeant Twiford looked through the house and entered Cesar’s bedroom.
Cesar was lying on the bed, facedown, with a pillow marked by two bullet holes
resting over his head. Cesar had been shot in the head and appeared lifeless. He
died later that morning at 9:14 a.m.
Los Angeles Police Detectives Richard Marks and Richard Simmons
investigated the Cardenas case. There were no signs of a forced entry into the
residence. Bullets, bullet fragments, shell casings, and little plastic disks were
recovered from the crime scene; some such items subsequently were found lodged

Lourdes underwent three surgeries as a result of the shooting. At the time
of trial, she still had a bullet in her left lung, which bled from day to day, and she
had trouble breathing.

in the victims themselves. The investigation disclosed that a .44-caliber revolver
had been fired at Lourdes and Cesar in their respective bedrooms, and that a .45-
caliber semiautomatic or auto-loading firearm also had been fired in the home.
Twelve latent prints were obtained from the crime scene. One print taken
from the bottom of a tin can in Lourdes’s bedroom matched the right thumbprint
from an exemplar of defendant’s fingerprints.
House keys and the family minivan were discovered missing from the
Cardenas home after the intruders left. The minivan subsequently was found four
blocks from the home of defendant’s father in San Bernardino; there were no signs
of forced entry or tampering to the vehicle.
The police arrested four persons. On May 22, 1989, Shawn Berry and
Nathan were arrested in Los Angeles. On March 27, 1990, Michael Berry and
defendant were arrested together in Rockville, Maryland.
2. The Defense Case
Defendant challenged Lourdes Cardenas’s eyewitness identification of him
as one of the perpetrators.
B. The Penalty Phase
1. The Prosecution Case
The prosecution presented aggravating evidence of defendant’s prior felony
conviction for a robbery he committed on July 28, 1986, as well as the
circumstances surrounding the robbery. Defendant had approached Frank
Williams, who was sitting in his truck in a restaurant drive-through lane in the
City of Compton, waived a gun in Williams’s direction, and ordered him out of the
truck. Defendant then got in and drove off. A week or two later, the truck was
found stripped and dismantled.

The prosecution also introduced aggravating evidence of defendant’s
assault on a deputy sheriff during an inmate riot that occurred on June 5, 1991 at a
Los Angeles county jail where defendant was confined while awaiting trial in this
matter. Although defendant did not initiate the riot or the altercation that preceded
it, he grabbed Deputy Scott Cramer and put a chokehold on him. Cramer’s face
turned “real red,” and he had a hard time breathing. Another deputy sheriff struck
defendant in the face, causing defendant to release Cramer. After more struggling,
the deputies subdued defendant and placed him in handcuffs.
2. The Defense Case
The defense attempted to cast doubt on the prosecution’s version of the
June 5, 1991 incident, and portrayed defendant as having reacted defensively in
his actions.
The defense also presented James Park, a prison consultant and retired
Assistant Director of the California Department of Corrections. Park testified
regarding level 4, the maximum level of security for prisoners serving sentences of
life imprisonment without the possibility of parole. In Park’s view, defendant
would adjust to prison as a life prisoner and could be managed properly and
securely, given the strict controls of a level 4 prison. The type of incident that
occurred in June 1991 at the county jail could not occur in a level 4 prison.
Additionally, defendant’s parents and friends testified regarding his
background and upbringing, as follows.
Defendant was born in Los Angeles on November 22, 1967, and had a
number of siblings and half siblings. His father occasionally disciplined him and
his siblings with a belt. Defendant was affectionate, respectful of older people,
and able to get along with all of his brothers and sisters.

Defendant was somewhat slow in reading, spelling, and math, so he was
placed in special education classes. He was good in woodworking and loved to
draw. Defendant never got into serious trouble while growing up, but occasionally
his mother had to go to school to speak with his teachers. He and his three
brothers, however, had all been incarcerated by the time of the instant trial.
In June 1983, when defendant was a teenager, his mother was convicted of
welfare fraud. She served nine months in state prison. During part of the time his
mother was in prison, defendant lived in a camper with his father. At that point,
Sylvia Longwood took defendant into her home because she knew he was a good
kid and she loved him. Defendant lived “off and on” with the Longwood family
for about a year. Sylvia Longwood made sure he went to school, and he did a lot
of the work Longwood’s sons refused to do. He also expressed more concern for
her than had her own son over her recent surgery.
Defendant eventually dropped out of high school two years after his mother
got out of prison.
Georgia Curtis met defendant in Carson in the summer of 1986. She had
two sons, ages seven and 10 years, who spent time with defendant and got along
well with him. Defendant was “sweet, kind, very considerate,” had a good
personality, and never mistreated Curtis. Curtis gave birth to defendant’s son
while defendant was in prison. Defendant had a close bond with his son, who was
four years old at the time of trial. Curtis believed defendant should be allowed to
live for his son’s sake, as well as his own.
Finally, Dr. William Vicary, a psychiatrist, testified for the defense. Dr.
Vicary had interviewed defendant, his parents, and two of his siblings. He also
had reviewed various police and probation reports, defendant’s prison records, the
victim’s autopsy report, reports of a clinical psychologist and other individuals,
and reports of interviews conducted on defendant’s behalf. Based on his review,

Dr. Vicary identified four “mitigating factors” in defendant’s case: (1)
defendant’s family background was traumatic, with physically abusive parents
who fought and yelled; (2) defendant exhibited borderline mental retardation with
an IQ of 76; (3) with his passive, immature, and suggestible personality, defendant
was dominated during the crimes by the more aggressive Michael Berry, whom he
idolized; and (4) defendant felt remorse about the crimes, although at times he
denied his involvement. Dr. Vicary testified that, while these background factors
did not excuse or justify the crimes, they explained why defendant got himself
involved in this “terrible situation.”
A. Juror Selection Issues
During the voir dire process, the prosecution exercised peremptory
challenges against five prospective jurors who were African-American. Defendant
himself is African-American, and only one African-American ultimately served as
a juror in his case. Defendant contends the prosecutor’s use of peremptory
challenges to excuse the five prospective jurors violated his state constitutional
right to trial by a jury drawn from a representative cross-section of the community
(People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler)) and deprived him of his
federal constitutional rights to due process and equal protection of the laws under
the Sixth and Fourteenth Amendments (Batson v. Kentucky (1986) 476 U.S. 79
There is a rebuttable presumption that peremptory challenges are exercised
in a constitutional manner. (Wheeler, supra, 22 Cal.3d at p. 278.) But challenges
used “to remove prospective jurors solely on the basis of membership in a
cognizable racial group violate both the federal and state Constitutions.” (People
v. Farnam (2002) 28 Cal.4th 107, 134.) A defendant who believes the prosecution

is improperly using peremptory challenges for a discriminatory purpose is required
to “raise a timely objection and make a prima facie showing that jurors are being
excluded on the basis of racial or group identity.” (Id. at p. 135; Wheeler, supra,
22 Cal.3d at p. 280.) To establish a prima facie case, the defendant must: (1)
make as complete a record as feasible; (2) establish that the persons excluded are
members of a cognizable group; and (3) show a strong likelihood or reasonable
inference that such persons are being challenged because of their group
association. (Ibid.) The failure to take these steps in the trial court forfeits the
right to complain on appeal. (People v. Bolin (1998) 18 Cal.4th 297, 316; see
People v. Anderson (2001) 25 Cal.4th 543, 568.)
Here, defendant acknowledges he never raised a Wheeler or Batson
objection at trial. Although the prosecutor, voluntarily and on his own initiative,
gave reasons for challenging the five African-American prospective jurors, trial
counsel, in every instance, either stood silent or affirmatively declined the trial
court’s invitation to comment on the prosecutor’s statements. Counsel did not ask
the trial court to make, nor did the court purport to make, any finding regarding
the existence of a prima facie case of discrimination. Because defendant neither
objected nor sought to establish a prima facie case of discrimination in the trial
court, he has forfeited review of such issues on appeal. (People v. Bolin, supra, 18
Cal.4th at p. 316.)
Defendant contends we should overlook his failure to object. Relying on
certain authorities, he asserts such objections would have been “superfluous”
because the prosecutor had already put his reasons on the record and thereby
commenced the Wheeler/Batson process. We are not convinced.
Defendant’s authorities are inapposite, for they involved situations in which
the defense actually made an objection or motion. (E.g., People v. Sims (1993) 5
Cal.4th 405, 427; People v. Motton (1985) 39 Cal.3d 596, 600-603; People v. Hall

(1989) 208 Cal.App.3d 34, 40-41.) That was not the case here. Not only did the
defense fail in the first instance to object on Wheeler or Batson grounds, but it
subsequently failed to offer any comment or opposing argument whatsoever after
the prosecutor volunteered his reasons. Far from being superfluous, the voicing of
objections and disagreement is critical for development of an adequate record on
appeal for review of a Wheeler/Batson claim, and at the very least here was
necessary to pinpoint trial counsel’s position on the matter. For all we know,
counsel stood silent because (1) they saw no legitimate basis for a Wheeler/Batson
claim given their knowledge and observations of the excused jurors and/or (2) they
themselves found one or more of the jurors objectionable from a defense
standpoint. Under the circumstances presented, we decline to overlook the failure
to object.
B. Guilt Phase Issues
1. Exclusion of Evidence of the Recovery and Release of $31,600 and
Alleged Associated Narcotic Overtones to the Instant Offenses.
Defendant contends the trial court erroneously refused to permit the defense
to present evidence at the guilt phase of drug-trafficking activity on the part of the
victims’ family. Specifically, he argues, the court should have admitted evidence
that Alex Cardenas, Lourdes’s and Cesar’s brother, removed an athletic bag
containing $31,600 from the Cardenas house the day after the instant crimes, and
evidence that the police recovered and then released the money to Lourdes
Cardenas some two months later. According to defendant, evidence of the
returned money and the related “narcotic overtones of the offense” was
admissible: (1) to show the Cardenas family’s apparent involvement in drug
trafficking and the existence of other possible perpetrators who had a motive to
commit the instant crimes; (2) to negate the prosecution theory that a stolen key
provided entry to the Cardenas home and the theory that the shootings evidenced a

premeditated plan to eliminate robbery witnesses; (3) to show that entry may have
been with permission to discuss a possible drug transaction and that the shootings
occurred during a drug trafficking negotiation gone bad, thereby negating the
burglary-murder and robbery-murder special-circumstance allegations; and (4) to
impeach Lourdes, who had a motive (a) to convert the instant crimes into a
burglary/robbery to protect her family from criminal liability and (b) to strengthen
the prosecution’s case with her identification of defendant after she had been
rewarded with return of the money. The exclusion of that evidence, defendant
argues, constituted reversible error under California law and deprived him of his
rights under the Sixth, Eighth, and Fourteenth Amendments to the federal
Constitution to confront and cross-examine the witnesses against him, to present a
defense, and to reliable guilt and sentence determinations.
Evidence possessing any tendency in reason to prove or disprove any
disputed material fact is relevant. (Evid. Code, § 210; People v. Garceau (1993) 6
Cal.4th 140, 177.) Evidence is relevant if it “tends ‘logically, naturally, and by
reasonable inference’ to establish material facts such as identity, intent, or motive.
[Citations.]” (People v. Garceau, supra, 6 Cal.4th at p. 177.) Evidence is
irrelevant, however, if it leads only to speculative inferences. (See People v. Kraft
(2000) 23 Cal.4th 978, 1035.) “As a condition precedent to challenging the
exclusion of proffered testimony, Evidence Code section 354, subdivision (a),
requires the proponent make known to the court the ‘substance, purpose, and
relevance of the excluded evidence . . . .’ ” (People v. Ramos (1997) 15 Cal.4th
1133, 1178.)
Here, defendant’s offer of proof on the matter consisted of the following.
Five days prior to opening argument, counsel informed the court: “We would ask
the court to entertain at this time a motion in the nature of 402, I guess. And that
would be regarding evidence that I would like to make an offer of proof, if I

might. [¶] Evidence in this case is floating around the—as far as the phrases goes
‘regarding some possible drug connection’ of some of the victim’s family,
generally, but specifically, a brother of the deceased and brother of Lourdes
Cardenas, the surviving victim. We will ask the court’s ruling as to the
admissibility in these proceedings as to that kind of evidence.”
When asked for a response, the prosecutor stated: “Only to say that I
believe I understand counsel’s offer of proof. And there is some indication that a
brother by the name of Alex Cardenas, who again is the brother of Lourdes
Cardenas, at the time of the offense was residing in Nevada and may be just an
allegation at this point, may have been involved in drug dealing. [¶] With that
alone, I would think and I would argue the point that it is irrelevant, number 1,
because I think motive for this crime will be clear that this is a robbery situation
turned into a killing and attempted killings after that. So it is irrelevant and also
without any real direct foundation. So I will object on both counts and ask the
court to rule it is inadmissible. Thank you.” The trial court agreed with the
prosecutor and stated it would bar any testimony along those lines, “unless
[counsel] can convince me otherwise at a later time with more particularity.”
The record plainly shows that defendant’s offer of proof prior to the guilt
phase did not advance any of the theories of relevance he presents now.
Defendant failed to even mention the existence of any athletic bag containing
money or the release of any money to Lourdes.4 Consequently, review of the
appellate contentions specifically pertaining to the athletic bag and released money

We note trial counsel subsequently spoke of the bag containing money and
some of the relevance theories at the penalty phase. (See post, pt. II.C.1.) What
transpired at the penalty phase, however, has no bearing on whether the trial
court’s evidentiary rulings at the guilt phase were correct.

evidence has been forfeited. (See People v. Gordon (1990) 50 Cal.3d 1223, 1264-
1265 [the defendant failed to raise federal constitutional basis for admission of
orphanage records at capital penalty phase], disapproved on other grounds in
People v. Edwards (1991) 54 Cal.3d 787, 835.)
Moreover, as presented to the trial court, defendant’s offer of proof was
properly rejected. The offer, considered together with the prosecutor’s comments
on the matter, consisted at most of a vague claim of evidence “floating around” of
a “possible drug connection” on the part of Alex Cardenas, who was living in
Nevada. Trial counsel offered no explanation as to how Alex’s alleged drug
involvement had any tendency to prove or disprove any disputed material fact in
the case, or what evidence was even available to establish Alex’s drug connection
and its relevance to the instant crimes. Given counsel’s lack of specificity, the
trial court properly precluded questioning on the topic of Alex’s alleged drug
connection.5 No state law or constitutional basis for a reversal appears.
2. Disclosure of the Recovery and Release of $31,600 to Lourdes
At the penalty phase of trial, the defense was permitted to call Detective
Marks and Detective Simmons to testify at a hearing pursuant to Evidence Code
section 402. (See post, pt. II.C.1.) Marks testified that on the day after the instant
crimes, they received information from a confidential citizen informant that Alex
Cardenas had left an estimated $75,000 in cash in a red suitcase at a residence on
R Street in Wilmington. Marks went to that residence and found “$31,000 plus”

On appeal, defendant attempts to establish the relevance of the evidence of
possible narcotic overtones based on evidence, arguments, and court rulings made
in coperpetrator Michael Berry’s separate and subsequent trial. The events that
occurred in Berry’s later trial are not properly considered in this appeal. (See
People v. Waidla (2000) 22 Cal.4th 690, 703, fn. 1; People v. Sakarias (2000) 22
Cal.4th 596, 635-636; People v. Sanchez (1995) 12 Cal.4th 1, 59 & fn. 5.)

in a burgundy-colored nylon athletic bag in the living room. Marks believed the
burgundy bag to be the same one he had observed at the Cardenas home following
the crimes. Simmons testified to the same effect. Additionally, when Simmons
asked Lourdes Cardenas if she knew where the money came from, she said she did
not know about the money. The police could not tie the money to “any narcotic
activity” or to “Alex Cardenas in any type of narcotic activity.” But because it
was determined that the money was in the Cardenas home at the time of the
subject crimes, Simmons released it to Lourdes.
Based on the above hearing testimony, defendant contends the prosecution
violated its disclosure obligations under section 1054.1. In particular, he argues
the prosecution was not in statutory compliance because it waited until the penalty
phase to disclose the reason the police released the money found at the R Street
residence to Lourdes, i.e., because the money was determined to have been in the
Cardenas home. This information, he argues, was relevant to the issues of motive,
lack of forced entry, and intent to kill, and to challenge Lourdes’s credibility.
Defendant further claims this statutory violation infringed on his federal
constitutional rights under the Sixth and Fourteenth Amendments and Brady v.
Maryland (1963) 373 U.S. 83 (Brady) to due process of law and a fair trial.
Under section 1054.1, prosecutors are required to disclose any exculpatory
evidence and any relevant written or recorded statements of witnesses or reports of
the statements of witnesses whom they intend to call at trial. (§ 1054.1, subds. (e),
Under the Fourteenth Amendment’s due process clause, prosecutors must
disclose evidence to a criminal defendant when it is “ ‘both favorable to the
defendant and material on either guilt or punishment.’ [Citations.] Evidence is
‘favorable’ if it hurts the prosecution or helps the defense. [Citation.] ‘Evidence
is “material” “only if there is a reasonable probability that, had [it] been disclosed

to the defense, the result . . . would have been different.” ’ ” (People v. Earp
(1999) 20 Cal.4th 826, 866; see also Brady, supra, 373 U.S. at p. 87.) Evidence
probative of a testifying witness’s credibility, including the potential for bias, is
evidence favorable to the accused. (See United States v. Bagley (1985) 473 U.S.
667, 676.)
As we explain below, defendant’s contentions are based on information that
was known or available to him at trial. Consequently, his failure to make proper
objections, request appropriate sanctions, or seek any continuance on the matter is
fatal to his contentions on appeal. (See People v. Carpenter (1997) 15 Cal.4th
312, 411 (Carpenter) [Brady claim found not cognizable on appeal]; cf. People v.
Marshall (1996) 13 Cal.4th 799, 830-831 [claim that conviction was based on
false testimony found waived]; People v. Arias (1996) 13 Cal.4th 92, 151 [failure
to seek sanctions or a continuance found fatal to claim that prosecutor had misled
the defense concerning the content of a witness’s testimony].)
In any event, the claims lack merit. Regardless whether the reason for the
release of the $31,600 to Lourdes was material or even favorable to defendant, the
record shows that references to all of the police activity relating to that money
were contained in a “murder book” that had been made available to the defense as
part of discovery. Defendant’s counsel claimed to have reviewed the “entire”
murder book “page by page” well before the trial began, and indeed, subsequently
reported to the trial court, at the penalty phase, that “through all of the discovery
that we’ve had in this case . . . there seems to have been a large amount of cash in
the residence at the time of the crime and most probably, for sure, $31,600 in cash
was recovered on the 12th of May, 1989, which was the very next day, of course,
and was then later returned to Ms. Cardenas.” (See post, pt. II.C.1.)
Although the murder book evidently did not set forth a reason why
Detective Simmons released the money to Lourdes, that single omission did not

constitute a failure to disclose or a suppression under either statutory or
constitutional standards.
First, the critical facts pertaining to the money’s existence, Alex Cardenas’s
reported drug involvement and actions, the recovery of $31,600 from the R Street
residence, and the money’s later release to Lourdes, had been fully disclosed
during discovery. Detective Simmons’s testimony merely confirmed what
defendant’s counsel informed the court they already had gleaned from discovery,
i.e., that the police concluded the recovered money had been in the Cardenas home
at the time of the crimes. No violation of section 1054.1 appears.
Second, the prosecutor had no constitutional duty to conduct defendant’s
investigation for him. Because Brady and its progeny serve “to restrict the
prosecution’s ability to suppress evidence rather than to provide the accused a
right to criminal discovery,” the Brady rule does not displace the adversary system
as the primary means by which truth is uncovered. (United States v. Martinez-
Mercado (5th Cir. 1989) 888 F.2d 1484, 1488.) Consequently, “when information
is fully available to a defendant at the time of trial and his only reason for not
obtaining and presenting the evidence to the Court is his lack of reasonable
diligence, the defendant has no Brady claim.” (United States v. Brown (5th Cir.
1980) 628 F.2d 471, 473; see also United States v. Stuart (8th Cir. 1998) 150 F.3d
935, 937 [“Evidence is not suppressed if the defendant has access to the evidence
prior to trial by the exercise of reasonable diligence.”]; United States v. Slocum
(11th Cir. 1983) 708 F.2d 587, 599.) In any event, evidence that is presented at
trial is not considered suppressed, regardless of whether or not it had previously
been disclosed during discovery. (United States v. Martinez-Mercado, supra, 888
F.2d at p. 1488; see United States v. Slocum, supra, 708 F.2d at p. 600 [newly-
discovered evidence does not warrant a new trial unless, inter alia, the evidence is

discovered following trial and the movant demonstrates due diligence to discover
the evidence prior to trial].)
Once again, the record confirms the prosecutor’s pretrial disclosure of the
detectives’ murder book entries regarding Alex Cardenas’s reported transportation
of a large sum of money from the Cardenas house to a residence on R Street the
day after the crimes, the police recovery of $31,600 from the R Street residence,
and the subsequent release of the $31,600 to Lourdes. Evidence of the reason for
the release of the $31,600 to Lourdes was in fact presented at trial, albeit at the
Evidence Code section 402 hearing, through the testimony of Detective Simmons.
Trial counsel did not dispute the prosecutor’s assertions in court that counsel had
known Simmons’s telephone number and that Simmons had been available for a
year and a half to interview. Thus, the record demonstrates defendant had ample
time and opportunity to investigate the matter in question and to discover the
reason for the release of the money to Lourdes, but simply failed to do so. These
circumstances do not amount to a suppression under Brady, supra, 373 U.S. 83.
In sum, the contentions complaining of the prosecution’s belated disclosure
and suppression provide no statutory or constitutional basis for a reversal.
3. Lourdes’s Testimony Regarding the Perpetrators’ Demands
During direct examination, Lourdes testified the perpetrators “were
demanding money and telling us to just not do anything stupid and to give them
what they wanted.” On cross-examination, she further testified that Michael Berry
asked for money. Although she could not remember exactly what he said, she
testified he said something like, “Give us the money. Give us what we want.” At
one point, trial counsel asked, “Do you know—do you have any idea—do you
know what they were referring to when they said, ‘Give us what we want’? Do

you know what he was talking about, what Michael Berry was talking about?”
Lourdes answered, “No.”
Defendant claims on appeal that Lourdes committed perjury when she
responded that she had no idea what Michael Berry “was talking about” when he
said, “Give us what we want.” Noting the recovery and release of the $31,600
occurred more than two years before his trial, and asserting the $31,600 “was
probably drug money from Alex Cardenas,” defendant argues that both Lourdes
and the prosecutor knew Lourdes’s testimony was false because she must have
known, at least by the time of trial if not on the night of the crimes, that the
perpetrators were looking for the gym bag with its large sum of alleged drug
money. Defendant further complains that the prosecutor’s closing argument—that
the perpetrators “went into a house and at gunpoint demanded property, demanded
money, and got that money, got the jewelry as well as the dollars that Ms.
Cardenas told us about” (italics added)—also falsely implied that the $2,000 that
Lourdes gave the perpetrators (and not the gym bag containing thousands of
dollars more) “was the purpose of the robbery which set this chain of events in
motion.” The prosecutor’s knowing presentation of false testimony and/or false
argument, defendant asserts, denied him his federal constitutional rights to due
process of law, a fair trial, and a reliable conviction and sentence.
“Under well-established principles of due process, the prosecution cannot
present evidence it knows is false and must correct any falsity of which it is aware
in the evidence it presents, even if the false evidence was not intentionally
submitted.” (People v. Seaton (2001) 26 Cal.4th 598, 647 [relying on Napue v.
Illinois (1959) 360 U.S. 264 and other decisions].) Put another way, the
prosecution has the duty to correct the testimony of its own witnesses that it
knows, or should know, is false or misleading. (In re Jackson (1992) 3 Cal.4th
578, 595, disapproved on other grounds in In re Sassounian (1995) 9 Cal.4th 535,

545, fn. 6.) This obligation applies to testimony whose false or misleading
character would be evident in light of information known to the police involved in
the criminal prosecution (In re Jackson, supra, 3 Cal.4th at p. 595), and applies
even if the false or misleading testimony goes only to witness credibility (id. at p.
594; Napue v. Illinois, supra, 360 U.S. at p. 269; cf. Giglio v. United States (1972)
405 U.S. 150, 153-154.) Due process also bars a prosecutor’s knowing
presentation of false or misleading argument. (See Miller v. Pate (1967) 386 U.S.
1, 6-7; Brown v. Borg (9th Cir. 1991) 951 F.2d 1011, 1015.) As we recently
summarized, “a prosecutor’s knowing use of false evidence or argument to obtain
a criminal conviction or sentence deprives the defendant of due process.” (People
v. Sakarias, supra, 22 Cal.4th at p. 633.)
Here, the People argue review of these claims has been forfeited because
the defense failed to raise the specific objection at trial or to request an appropriate
admonishment, even though trial counsel knew from their pretrial review of the
murder book all the information pertaining to the May 12, 1989 recovery of the
$31,600 and its subsequent release to Lourdes (see ante, pt. II.B.2). (See People v.
Jenkins (2000) 22 Cal.4th 900, 1016-1017; People v. Ervin (2000) 22 Cal.4th 48,
92.) Defendant counters, however, that the prosecution’s constitutional duty to
correct its witness’s false testimony is not discharged merely because trial counsel
knows the testimony is false. (See United States v. LaPage (9th Cir. 2000) 231
F.3d 488, 492.)
Even assuming defendant did not forfeit review, the claims are without
merit. The fact that trial counsel’s question called for present knowledge does not
show that Lourdes’s denial was false or misleading—she might not have known or
believed at trial that the intruders supposedly were referring to a gym bag
containing $31,600. With our review limited to the record on appeal, we still do
not know that to be the case.

Defendant’s conclusion that Lourdes must have known what Michael Berry
specifically had in mind when he demanded, “Give us what we want” (italics
added), does not inevitably or necessarily follow from the mere fact that the police
released $31,600 to her after the crimes. Although it arguably may be inferred
from Lourdes’s receipt of the money that she might have at least suspected
Michael Berry to have had some knowledge of the money, her testimony to the
contrary was not physically impossible or demonstrably false. Notably, there was
no evidence indicating that the intruders demanded any particular money amount,
or that they pressed for significantly more cash after Lourdes relinquished $2,000
and her jewelry to them. Consequently, it would not have been unreasonable, at
the time of trial, for either her or the prosecutor to believe that the intruders knew
nothing about a bag containing $31,600.
In sum, we cannot say the prosecutor misled the jury or violated
defendant’s due process rights when he failed to “correct” Lourdes’s testimony or
when he argued that the perpetrators got the money they demanded from her.
Defendant’s claims are rejected.
4. Hearsay Evidence of Lourdes’s Identification of Defendant
Over defendant’s hearsay objection, the trial court permitted Sergeant
Twiford to give the following testimony concerning Lourdes’s identification of
defendant just after the crimes occurred. Twiford was the first police officer to
arrive at the crime scene. He observed a male comforting Lourdes, who had what
appeared to be gunshot wounds to the face and chest and “looked like she was
going to lapse into unconsciousness or else going to die right on the spot.”
Twiford approached and asked Lourdes who did it. She responded by identifying
three individuals: “Shawn Berry, Michael Berry and a male Negro by the name of

Jesse.”6 The court permitted Twiford’s testimony on the ground that Lourdes’s
statements were admissible under Evidence Code section 1240 as spontaneous
On appeal, defendant renews his contention that Lourdes’s statement of
names to Twiford as to “who did it” constituted inadmissible hearsay. The
erroneous admission of this hearsay, he argues, requires reversal of both his
conviction and death sentence because, had that hearsay not been admitted, it is
reasonably probable he would have garnered a more favorable result.
To qualify for admission under the spontaneous statement exception to the
hearsay rule, “an utterance must first purport to describe or explain an act or
condition perceived by the declarant. (Evid. Code, § 1240, subd. (a).) Secondly,
the statement must be made spontaneously, while the declarant is under the stress
of excitement caused by the perception. (Id., subd. (b).)” (People v. Farmer
(1989) 47 Cal.3d 888, 901 (Farmer), disapproved on other grounds in People v.
Waidla, supra, 22 Cal.4th at p. 724, fn. 6.) For purposes of the exception, a
statement may qualify as spontaneous if it is undertaken without deliberation or
reflection. (See Farmer, supra, at p. 903.) Although we have acknowledged that
responses to detailed questioning are likely to lack spontaneity, we also have
recognized that an answer to a simple inquiry may be spontaneous. (Id. at p. 904,
citing cases.) The trial court must consider each fact pattern on its own merits and
is vested with reasonable discretion in the matter. (Id. at p. 904.)

In response to the prosecutor’s questioning, Twiford testified as follows:
“Q: All right. Upon seeing what you see when you walked into that service porch
area, what’s the next thing you see or do? [¶] A: Well, I ask her who did it. She
replied; she told me some names. [¶] Q: How many names did she give you? [¶]
A: Three. [¶] Q: What were those names? [¶] A: Shawn Berry, Michael Berry
and a male Negro by the name of Jesse.”

Defendant argues that “[a]lthough the fact Lourdes had just been shot
would support a finding that the statement was sufficiently ‘spontaneous’ and
‘excited’ to satisfy the requirements of [Evidence Code] section 1240, subdivision
(b)[,] the problem here is that a statement identifying someone in response to a
police officer’s question is not a statement ‘narrating,’ ‘describing,’ or
‘explaining’ anything. Moreover, even if it were a statement describing a person
by virtue of providing a name rather than a physical description, a person is not an
‘act, condition, or event.’ ” We disagree.
Lourdes’s spontaneous statement of names as to “who did it” described the
event she perceived, that is, she saw “Shawn Berry, Michael Berry and a male
Negro by the name of Jesse” participate in the crimes in her house on the date in
question. Contrary to defendant’s assertions, courts have found or recognized that
statements purporting to name or otherwise identify the perpetrator of a crime may
be admissible where the declarant was the victim of the crime and made the
identifying remarks while under the stress of excitement caused by experiencing
the crime. (See, e.g., Farmer, supra, 47 Cal.3d at pp. 904-905 [statements of
shooting victim in response to questioning of police dispatcher and officer at the
scene helped describe the crime by identifying the perpetrator]; People v. Anthony
O. (1992) 5 Cal.App.4th 428, 433 [seconds after shooting, victim stated to police
officer, “ ‘I just been shot. You got the wrong car. It was Sharky from El
Sereno.’ ”]; In re Damon H. (1985) 165 Cal.App.3d 471, 474, 476 [in response to
his mother’s question why his buttocks hurt, crying minor stated, “ ‘[b]ecause
Damon put his weenie in my butt’ ”]; People v. Jones (1984) 155 Cal.App.3d 653,
659-662 [when a treating physician asked a burn victim, 30-40 minutes after his
injury, what had happened, victim responded that the person “ ‘I live with threw
gasoline on me’ ”].) Defendant’s efforts to distinguish the circumstances here—
on the basis that Lourdes not only described defendant generally as a “male

Negro” but also identified him specifically by his first name—are without merit.
Moreover, where the spontaneous declarant is available as a witness, as Lourdes
was here, “the existence and truth of the declaration may be explored in an
examination under oath.” (People v. Arias, supra, 13 Cal.4th at p. 150.)
Finally, defendant’s position is not aided by People v. Hines (1997) 15
Cal.4th 997 (Hines), which concluded that the trial court there should have
excluded the testimony of Jiy Williams that he asked Donna Roberts (the crime
victim) over the telephone, “ ‘Who is there in the house with you?’ ” (Hines,
supra, at p. 1035.) The trial court there, however, had found inadmissible
Williams’s testimony that Roberts had answered his question with the statement
that the defendant was at the house. (See id. at p. 1034.) Given the trial court’s
decision barring admission of Roberts’s answer, Hines observed that “[t]he mere
fact that Williams asked the question was irrelevant, and telling the jury he had
done so might have led it to speculate that Donna Roberts had answered by telling
Williams that defendant was present.” (Id. at p. 1035) Hines’s conclusion
regarding the irrelevant nature of Williams’s inquiry to Roberts has no bearing on
the legal issue here; indeed, neither side in that case had even argued the
spontaneous statement exception to the hearsay rule to the trial court.7

Hines noted that, due to the prosecutor’s failure to argue the point at trial,
the Attorney General was barred on appeal from asserting that the victim’s
telephonic statement was admissible pursuant to the spontaneous statement
exception to the hearsay rule. (Hines, supra, 15 Cal.4th at p. 1034, fn. 4.)
Although Hines proceeded to reject the merits of the Attorney General’s argument,
it did so on the basis that, on the facts before it, the trial court could reasonably
have concluded that the victim’s identification of defendant in response to a
question was not spontaneous. (Id. at pp. 1034-1035, fn. 4.) That conclusion in
Hines does not compel a different result here, for as defendant concedes, the fact
Lourdes had just been shot supports the trial court’s determination that the

(footnote continued on next page)

In closing, we note defendant does not contend that the trial court’s
evidentiary ruling violated his federal constitutional right to confront a witness
against him. (U.S. Const., 6th Amend.; Crawford v. Washington (2004) __ U.S.
__ [124 S.Ct. 1354] [holding that out-of-court statements by witnesses in response
to police questioning are testimonial and therefore barred under the federal
confrontation clause, unless such witnesses are unavailable and the defendants had
a prior opportunity to cross-examine them].) Nor could he successfully do so in
any event. (Crawford v. Washington, supra, __ U.S. at p. ___ [124 S.Ct. at p.
1369, fn. 9] [“when the declarant appears for cross-examination at trial, the
Confrontation Clause places no constraints at all on the use of his prior testimonial
C. Penalty Phase Issues
1. Exclusion of Evidence of the Recovery and Release of $31,600 and
Alleged Associated Narcotic Overtones to the Instant Offenses.
At the penalty phase, defendant twice sought to introduce evidence of
alleged drug-trafficking activity on the part of the victims’ family, i.e., Alex
Cardenas’s supposed removal of over $30,000 from the Cardenas house, the police
recovery of $31,600, and the later release of that money to Lourdes Cardenas.
Pursuant to Evidence Code section 402, defendant made one offer of proof just
prior to the penalty phase and a second offer during the case in mitigation. He was
unsuccessful both times. In this claim, defendant argues the trial court’s rulings
constituted error under state law and denied his federal constitutional rights to

(footnote continued from previous page)

statement was sufficiently spontaneous and excited for admission under Evidence
Code section 1240.

confrontation, to put forward a defense and present relevant evidence in mitigation
at the penalty phase, and to a reliable capital sentence.
Before the start of the penalty phase, trial counsel informed the court of
their desire to call Lourdes to the stand and question her regarding the presence of
a large amount of money in the Cardenas house on the night of the crimes. As part
of their offer of proof, counsel indicated testimony from Detective Simmons
would show that the day after the instant crimes, police officers, acting on an
anonymous call, went to the house of Bertha Gamboa on R Street in Wilmington
and recovered a large sum of money that apparently belonged to Alex. Thereafter,
the police released the money to Lourdes.
In moving the court to allow introduction of this evidence at the penalty
phase, counsel argued that any drug involvement by Lourdes and her family
“would be important and relevant as far as the circumstances of the crime itself.”
(See § 190.3, factor (a).) Counsel specifically contended: “If, in fact, [the
Cardenas] family was known by the people and it has come out that Shawn Berry
knew the family, that Michael Berry knew the family, and they are known to have
large sums of money and, in fact, they had large sums of money at that time, I
think that the jury should know that factor. It’s a part of this robbery. The
robbery that happened and if the robbery itself—the robbery and the murder are
factors in aggravation, then the jury should know everything about that robbery
and murder. There are reasons to believe that that money was in the house or
supposed to have been in the house at the time the robbery went down.”
The trial court denied defendant’s motion. Because there was nothing to
indicate that defendant or his cohorts committed their crimes with an awareness
that some $31,000 or so was in the Cardenas home, the court agreed with the
prosecutor that no nexus had been shown between the money and the

circumstances of the crimes. The court, however, indicated defendant could renew
his motion at any time with additional information.
Subsequently, during the defense case, defendant renewed his motion to
introduce evidence concerning the recovery and release of the $31,600. This time,
counsel read to the court certain entries that Detective Marks and Detective
Simmons made in the murder book. The entries chronicled their reports pertaining
to their knowledge and recovery of the money, and included references to
confidential informant information regarding Alex’s alleged drug trafficking and
alleged connection to the money.8 Another entry reflected that on August 9, 1989,
Detective Simmons released $31,600 to Lourdes.
In making this last offer of proof, counsel asked permission to introduce
evidence, apart from any alleged drug connection, that $31,600 was in the house
at the time of the crimes, that Alex Cardenas removed the money to another house,
and that later the police released the money to Lourdes. Counsel argued such
evidence related to the circumstances of the crime and should be admitted in

Counsel read the following entry dated May 12, 1989, at 8:15:
“ ‘Contacted by confidential citizen informant who I.D.’d self as a friend of the
Cardenas family. The confidential informant reported that word circulating as a
result of the shooting identified the youngest son, Alex Cardenas, as the number
one in narcotics trafficking in Wilmington. He lives in Las Vegas but had been at
the Marine Avenue residence this past Monday, 5/8/89. He flies frequently
between California and Nevada and presumed the suspects went there looking for
him.’ ” Counsel also read the following entry dated May 12, 1989, at 12:50:
“ ‘Received information . . . from confidential citizen informant who reported that
Alex Cardenas had taken a red suitcase containing an estimated $75,000 in U.S.
currency to a residence at 1117 West R Street Wilmington, accompanied by
Detective’ looks like R-O-M-A-N-T, ‘went to location and pursuant to consent
search recovered $31,600. See property receipt section 5.’ ”

fairness to the defense.9 Counsel feared that, if such information were omitted,
either the jury might think or the prosecutor could argue the robbery was a random
picking of a house in a neighborhood, while the defense would be prohibited from
pointing to the large amount of money in the victims’ house as refuting such a
notion or argument.
Outside the presence of the jury, the court allowed defendant to call
Detective Marks and Detective Simmons to the stand. Detective Marks testified,
among other things, that on May 12, 1989 (the day after the instant crimes), he
received a telephone call from confidential citizen informant (who he believed was
a family member or a close Cardenas family friend) who said that Alex had left an
estimated $75,000 in cash in a red suitcase at a specific R Street address in
Wilmington. Marks and his partner went to the R Street residence and found
“$31,000 plus” in a burgundy-colored nylon athletic bag in the living room.
Marks believed the burgundy bag to be the same one he had observed at the
Cardenas home following the crimes. Marks then made a report regarding the
phone call and his subsequent actions in recovering the money. He indicated he
followed up on the original telephone call because there were “narcotic overtones”
surrounding the Cardenas residential robbery and because he heard from another
telephone caller that the “word on the street” was that Alex Cardenas, identified by
the caller as a younger brother who was the number one drug dealer in narcotics in

Defendant argues that counsel additionally pointed out and remarked
during the hearing, “there was a statement made . . . to Lourdes, ‘Where is the rest
of it?’ . . . that Lourdes made when she was testifying. And this was the rest of it.
It just didn’t get found.” Although defendant correctly notes counsel’s argument,
he fails to provide citations to the record where Lourdes Cardenas purportedly
made the statements attributed to her. We have reviewed the reporter’s transcripts
and are unable to find any testimony by Lourdes herself to the effect that one of
the perpetrators asked her, “Where is the rest of it?”

Wilmington, actually lived in Las Vegas but commuted between the Las Vegas
and San Pedro areas. Also, Marks believed that someone at the R Street residence
told him, in Spanish through an interpreter, that Alex Cardenas had brought the
bag and left it at the R Street address.
Detective Simmons testified that, the day after the Cardenas crimes, he
became aware of the same information as Marks. Simmons was aware that Marks
had recovered over $31,000 in cash from a residence in Wilmington. When
Simmons asked Lourdes if she knew where the money came from, she said she did
not know about the money. Simmons returned the money to Lourdes, although
she knew nothing about it, because (1) information known to the police
established that the money was in the Cardenas house at the time of the robbery;
and (2) Lourdes and her mother had not returned to work and were out of funds.
Significantly, Simmons testified that the money could not be tied to “any narcotic
activity” or to “Alex Cardenas in any type of narcotic activity.”
After the two detectives testified, counsel argued “the court now has
evidence that clearly shows that this 31,000 plus in cash was in the Cardenas
house when these people came in and this crime was committed.” Counsel then
reiterated the point that “the fact that this money was there is something that the
jury should and needs to know in able to take into consideration and evaluate all
the circumstances of the crime.” In particular, counsel stressed the importance of
the information “from the defense side, at least so that the jury—so that the jury
has all of the information . . . so that they know that this house was not necessarily
picked out of the blue and randomly, for no reason at all, and made the target of a
residential robbery, that there was indeed a large amount of cash money there and
for the reasons that the court has heard today.”
After hearing the prosecutor’s hearsay and relevance objections, the trial
court denied the motion once again. Specifically, the court found that “the vast

majority of the testimony is, in fact, hearsay” and “over and above that, this entire
line of questioning will be irrelevant even under 190.3.”
As previously indicated (ante, pt. II.B.1), evidence possessing any tendency
in reason to prove or disprove any disputed material fact is relevant and may be
admissible at trial. (Evid. Code, §§ 210, 351; People v. Garceau, supra, 6 Cal.4th
at pp. 176-177.) Even if relevant, however, hearsay evidence—i.e., “evidence of a
statement that was made other than by a witness while testifying at the hearing and
that is offered to prove the truth of the matter stated”—is inadmissible “[e]xcept as
provided by law.” (Evid. Code, § 1200.)
Although a trial court enjoys broad discretion in determining the relevance
of evidence (People v. Garceau, supra, 6 Cal.4th at p. 177), it lacks discretion to
admit evidence that is irrelevant (People v. Heard (2003) 31 Cal.4th 946, 973;
People v. Crittenden (1994) 9 Cal.4th 83, 132) or excluded under constitutional or
statutory law (e.g., Evid. Code, § 1200, subd. (b)). The proponent of proffered
testimony has the burden of establishing its relevance, and if the testimony is
comprised of hearsay, the foundational requirements for its admissibility under an
exception to the hearsay rule. (See People v. Ramos, supra, 15 Cal.4th at pp.
1177-1178; People v. Rodriquez (1969) 274 Cal.App.2d 770, 777; see generally
Evid. Code, §§ 110, 403, 405, 550.) Evidence is properly excluded when the
proponent fails to make an adequate offer of proof regarding the relevance or
admissibility of the evidence. (E.g., People v. Hill (1967) 66 Cal.2d 536, 569-570;
People v. Thomas (1969) 269 Cal.App.2d 327, 329.)
Here, defendant’s offers of proof regarding Alex’s supposed actions and
drug involvement, and the alleged narcotic overtones of the instant crimes,
consisted largely of inadmissible third party hearsay. In response to the
prosecutor’s hearsay objections, defendant made no attempt to cite or establish a
hearsay exception. Nor did he argue a nonhearsay purpose for the admission of

such evidence or any drug-related testimony. Accordingly, defendant failed to
preserve his claim of penalty phase error as it relates to such evidence. (People v.
Ramos, supra, 15 Cal.4th at p. 1178.)
Exclusion of the inadmissible hearsay at issue did not violate defendant’s
constitutional rights. As we recently explained, the United States Supreme Court
has never suggested that states are without power to formulate and apply
reasonable foundational requirements for the admission of evidence. (People v.
Ramos, supra, 15 Cal.4th at p. 1178 [discussing Chambers v. Mississippi (1973)
410 U.S. 284, Skipper v. South Carolina (1986) 476 U.S. 1, and other United
States Supreme Court decisions]; see also People v. Phillips (2000) 22 Cal.4th
226, 238.) Foundational prerequisites are fundamental, of course, to any
exception to the hearsay rule. (People v. Ramos, supra, 15 Cal.4th at p. 1178.)
Application of these ordinary rules of evidence to the alleged drug-related
components of the proffered testimony did not impermissibly infringe on
defendant’s right to present a defense. (See ibid., and cases cited therein.)
Nonetheless, it has been recognized that due process requires the admission
of hearsay evidence at the penalty phase of a capital trial, even though a state’s
evidentiary rules are to the contrary, “ ‘if both of the following conditions are
present: (1) the excluded testimony is “highly relevant to a critical issue in the
punishment phase of trial,” and (2) there are substantial reasons to assume the
reliability of the evidence.’ ” (People v. Champion (1995) 9 Cal.4th 879, 938; see
People v. Phillips, supra, 22 Cal.4th at p. 238.) Setting aside the question whether
the proffered hearsay was “highly relevant” to any critical penalty phase issue,
there appear no reasons, substantial or otherwise, supporting its reliability.
Indeed, as Detective Simmons testified, the police had investigated the matter but
were unable to tie the money to “any narcotic activity” or to “Alex Cardenas in

any type of narcotic activity.” On this record, exclusion of the hearsay evidence
did not deprive defendant of due process.
Although the prosecutor conceded that at least some of the proffered
evidence was not inadmissible hearsay—i.e., the evidence that Detective Marks
went to the Gamboa residence on R Street and recovered $31,600 in cash from
that residence and the evidence that Detective Simmons later released the money
to Lourdes—he nonetheless argued it was irrelevant and therefore properly
excluded. The trial court agreed with the prosecutor, and we now review the trial
court’s exclusion of that nonhearsay evidence.
Even assuming that the mere presence of the $31,600 in the Cardenas house
at the time of Cesar’s murder was a circumstance that the jury properly could
consider pursuant to section 190.3, factor (a), we see no basis for reversing the
penalty determination. For purposes of determining the appropriateness of the
death penalty, such evidence hardly served to extenuate the circumstances
surrounding the murder. The evidence showed that defendant and his cohorts
invaded the Cardenas home at midnight, that defendant executed Cesar with two
gunshots to the head, that he and a cohort then fired guns at Lourdes as she held
her four-month-old baby, and that another cohort shot at Lourdes’s mother with a
semiautomatic weapon. That a large sum of money was in the Cardenas home at
the time did not render defendant’s actions any less aggravated, heinous, or
reprehensible than they otherwise would be. Nor did such circumstance tend to
lessen defendant’s guilt or the gravity of the burglary, robbery, murder and
attempted murders for which he was convicted. (Cf. People v. Lucero (2000) 23
Cal.4th 692, 723-724 [approving trial court’s instructional definition of
“extenuating circumstances”].)
Moreover, defendant’s argument at trial on this point was that the evidence
was relevant to rebut any potential juror belief or prosecutorial argument that the

perpetrators randomly chose the Cardenas residence for their crimes.10 The
prosecutor, however, never actually advanced such an argument. In any case, the
jury was well aware from evidence presented at the guilt phase that the Berry
brothers knew the Cardenas family and evidently chose to rob them with that
knowledge. Accordingly, we are confident that any conceivable error in excluding
evidence that $31,600 was in the Cardenas home at the time of the crimes was
harmless under any standard. (People v. Lucero (1988) 44 Cal.3d 1006, 1032
[applying the reasonable doubt standard of Chapman v. California (1967) 386
U.S. 18 to errors resulting in the exclusion of potentially mitigating evidence]; see
also People v. Brown (2003) 31 Cal.4th 518, 576 [applying reasonable possibility
2. Effect of Lourdes’s Guilt Phase Testimony
During his closing argument, the prosecutor described the Cardenas family
as: “A family living in a home, working family, Cesar Cardenas trying to run his
printing business, Lourdes Cardenas working at St. Mary’s Hospital. She has a
little baby girl. Her mom living with them in the house. A family living in a
residential neighborhood not bothering anybody.” He later commented: “To take
a young man trying to live his life and work a job, help out the family, live with

Defendant argues on appeal that the evidence also was relevant for
purposes of challenging the credibility of Lourdes Cardenas, the prosecution’s star
witness at the guilt phase. Once Lourdes’s credibility is undermined, defendant
argues, “her identification of [him as a perpetrator] becomes suspect, as does her
entire story concerning the events of the night in question.” Defendant’s failure to
raise this point at trial, however, forfeits review of the matter here. (People v.
, supra, 15 Cal.4th at p. 1178.) In any event, Lourdes did not testify at the
penalty phase, and such evidence was not admissible to religitate the issue of guilt
during the penalty phase. (See People v. Miller (1990) 50 Cal.3d 954, 1005.)

the family and turn him into this in his own home is inexcusable and warrants only
one punishment.”
Defendant contends the foregoing comments exploited the prejudicial effect
of what he claims was Lourdes’s false testimony at the guilt phase that she had no
idea what the perpetrators were referring to when they demanded, “Give us what
we want.” (See ante, pt. II.B.3.) Specifically, defendant argues that the
prosecutor relied on Lourdes’s uncorrected testimony to present a false and
misleading picture of the circumstances of the crimes in support of a death
sentence. He also claims that the reliability of his death judgment was “grievously
undermined” because the prosecutor was permitted to unfairly bolster the
credibility of Lourdes, the prosecution’s star witness.
The People contend, as a procedural matter, that defendant’s failure to
object to the prosecutor’s penalty phase comments forfeits review of his
contentions on appeal. (See People v. Farnam, supra, 28 Cal.4th at p. 196; People
v. Barnett (1998) 17 Cal.4th 1044, 1177.) Defendant counters that review is
appropriate because any objection would have been futile in light of the court’s
evidentiary rulings regarding the recovery and return of the $31,600. (See People
v. Arias, supra, 13 Cal.4th at p. 159.)
Even assuming these penalty phase contentions have not been forfeited,
they are lacking in merit. As already explained (ante, pt. II.B.3), the record does
not establish that Lourdes’s testimony was demonstrably false or misleading.
Accordingly, the contentions lack foundation insofar as they are premised on the
assumption that Lourdes gave false testimony at the guilt phase.
The record, moreover, contains no evidence of the victims’ involvement in
drug dealing or any other crime. Although defendant had made an offer of proof
that the out-of-state brother, Alex, may have been involved in drug trafficking and
may have transported a gym bag containing $31,600 from the Cardenas home to a

different residence just after the crimes, the trial court properly ruled that such
evidence was inadmissible third party hearsay. (Ante, pt. II.C.1.) Consequently,
the prosecutor’s comments—describing the victims as a working family who did
not bother anybody—were perfectly appropriate in light of the evidence both
before the jury and in the record.11
3. Motion to Modify the Death Verdict
In ruling on the automatic motion to modify the death verdict (§ 190.4,
subd. (e)), the trial court discussed its findings on each of the statutory factors in
aggravation and mitigation. Specifically, it found the presence of certain
aggravating circumstances pursuant to section 190.3, factors12 (a) (circumstances
of the underlying crime), (b) (other violent criminal activity), and (c) (prior felony
convictions), and found some evidence of mitigating circumstances pursuant to
factor (k) (any other circumstance extenuating the gravity of the crime).
With respect to factor (e), the court stated the following: “Subdivision (e),
whether or not the victim was a participant in the defendant’s homicidal conduct
or consented to the homicidal act, court finds this to be aggravating circumstances.
Cesar Cardenas did nothing to promote, consent, or instigate his death. Nothing
more than absolute and total, complete cooperation.” With regard to factor (j), the
court found: “Subdivision (j), whether or not the defendant was an accomplice to
the offense and participation in the commission of the offense was relatively
minor. And the offense herein the defendant was the perpetrator of the killing of

Because we find that no misconduct occurred, there is no need to reach
defendant’s further claim that the perceived misconduct prejudiced the outcome of
his trial.
All further references to factors are to the factors set forth in section 190.3.

Cesar Cardenas and the attempted murder of Lourdes Cardenas, court finds this to
[be] an aggravating factor.”
Based on this record, defendant argues the trial court erroneously viewed
factors (e) and (j) as aggravating even though those factors may only be
considered mitigating. By relying on impermissible factors to deny the automatic
motion to modify the verdict, defendant contends, the court violated state law and
his state and federal constitutional rights to due process and a reliable,
individualized capital sentencing verdict.13
Like the jury in its penalty phase determinations, a trial court ruling on a
motion to modify may rely on the presence of the aggravating circumstances
identified in factors (a), (b), and (c). Factors (d) (extreme mental or emotional
disturbance), (e), (f) (defendant’s belief in moral justification or extenuation), (g)
(extreme duress or substantial domination), (h) (diminished mental capacity), and
(j), however, can only mitigate, and the absence of any of these factors may not be
considered aggravating. (See People v. Hamilton (1989) 48 Cal.3d 1142, 1184,
1186; see also People v. Riel, supra, 22 Cal.4th at p. 1223 [absence of a mitigating
factor is not itself aggravating]; People v. Davenport (1985) 41 Cal.3d 247, 288-
In Carpenter, supra, 15 Cal.4th 312, we considered a similar situation in
which the trial court purported to find that factor (d), pertaining to a defendant’s
extreme emotional or mental disturbance, “ ‘supports aggravation’ because the
‘evidence shows that the defendant carefully planned each of these homicides’ and

Because the modification hearing in this case was held before our decision
in People v. Hill (1992) 3 Cal.4th 959 became final, we reach the merits of this
claim despite defendant’s failure to object at trial. (People v. Riel (2000) 22
Cal.4th 1153, 1220.)

‘was not under the influence of any extreme mental or emotional disturbance.’ ”
(Carpenter, supra, at pp. 423-424.) Although we acknowledged that the mere
absence of a mitigating factor is not itself aggravating, we observed the trial court
could properly consider in aggravation the objective circumstances of the
underlying killing. (Id. at p. 424; see also People v. Cooper (1991) 53 Cal.3d 771,
848.) As relevant here, we held that “[a]ny error in considering these
circumstances under the wrong statutory factor did not affect the court’s decision.”
(Carpenter, supra, 15 Cal.4th at p. 424.)
We see no factual or legal basis for distinguishing the instant situation from
that in Carpenter, supra, 15 Cal.4th 312. Although the perceived errors in this
case involve factors (e) and (j), all the evidence the trial court cited pertained to
the objective circumstances of the underlying crime, which the court properly
could consider under factor (a). Additionally, the trial court was explicit in its
opinion that “the aggravating circumstances so far outweigh the mitigating
circumstances” as to render the matter “not even close.” That conclusion is
soundly supported by the evidence.
In sum, we find no reasonable possibility that the perceived state law errors
affected the ruling and no basis for remanding this case for a new modification
hearing. (Carpenter, supra, 15 Cal.4th at p. 425; see People v. Wader (1993) 5
Cal.4th 610, 667 [even where trial court erroneously considered probation report,
no remand was necessary when court’s statement of decision made apparent that
issue of penalty was not close].) In light of these conclusions, defendant’s related
state and federal constitutional claims are rejected.

4. Constitutionality of California’s Death Penalty Statute
Defendant contends many features of this state’s capital sentencing scheme
(§ 190 et seq.) violate the United States Constitution. We have repeatedly rejected
such contentions, as follows.
Contrary to defendant’s arguments, section 190.2 is not impermissibly
broad. (People v. Hillhouse (2002) 27 Cal.4th 469, 510; People v. Lewis (2001)
26 Cal.4th 334, 393.) Factor (a) is not unconstitutionally vague (People v. Jones
(2003) 30 Cal.4th 1084, 1128; People v. Hillhouse, supra, 27 Cal.4th at p. 510),
and there is no merit to the claim that factor (a) has been used in ways so arbitrary
and contradictory as to violate the federal guarantee of due process of law (People
v. Lewis, supra, 26 Cal.4th at p. 394; see Tuilaepa v. California (1994) 512 U.S.
967, 976-980). Allowing consideration of unadjudicated criminal activity under
factor (b) is not unconstitutional and does not render a death sentence unreliable.
(People v. Kipp (2001) 26 Cal.4th 1100, 1138; People v. Barnett, supra, 17
Cal.4th at p. 1178.) Use in the sentencing factors of such adjectives as “extreme”
(factors (d), (g)) and “substantial” (factor (g)) does not act as a barrier to the
consideration of mitigating evidence in violation of the federal Constitution.
(People v. Lewis, supra, 26 Cal.4th at p. 395; People v. Anderson, supra, 25
Cal.4th at p. 601.)
The trial court was not constitutionally required to inform the jury that
certain sentencing factors were relevant only in mitigation, and the statutory
instruction to the jury to consider “whether or not” certain mitigating factors were
present did not impermissibly invite the jury to aggravate the sentence upon the
basis of nonexistent or irrational aggravating factors. (People v. Kraft, supra, 23
Cal.4th at pp. 1078-1079; see People v. Memro (1995) 11 Cal.4th 786, 886-887.)
Indeed, “no reasonable juror could be misled by the language of section 190.3

concerning the relative aggravating or mitigating nature of the various factors.”
(People v. Arias, supra, 13 Cal.4th at p. 188.)14
The death penalty statute does not fail to perform the constitutionally
required narrowing function by virtue of the number of special circumstances it
provides or the manner in which they have been construed. (People v. Frye (1998)
18 Cal.4th 894, 1029; People v. Ray (1996) 13 Cal.4th 313, 356.) We have
previously declined to find that a statistical analysis examining published appeals
from murder convictions for the years 1988-1992 warrants reconsideration of our
conclusions. (People v. Frye, supra, 18 Cal.4th at pp. 1028-1029.)
The jury need not make written findings, or achieve unanimity as to
specific aggravating circumstances, or find beyond a reasonable doubt that an
aggravating circumstance is proved (except for other crimes), that aggravating
circumstances outweigh mitigating circumstances, or that death is the appropriate
penalty. (People v. Hillhouse, supra, 27 Cal.4th at p. 510; People v. Lewis, supra,
26 Cal.4th at p. 394.) The death penalty statute is not unconstitutional for failing
to provide the jury with instructions of the burden of proof and standard of proof
for finding aggravating and mitigating circumstances in reaching a penalty

As part of this contention, defendant asserts, in essence, that the prosecutor
committed misconduct that exacerbated the confusing nature of the statutory
instruction during his closing argument to the jury. Defendant’s failure to object
and request an admonishment at trial forfeits review of this matter on appeal.
(People v. Montiel (1993) 5 Cal.4th 877, 936-937; People v. Proctor (1992) 4
Cal.4th 499, 544.) In any event, we have reviewed the record and conclude that,
as for the portion of the prosecutor’s remarks relating to the general law
concerning aggravating and mitigating factors, no reasonable juror would
understand them in the manner defendant construes them, especially in light of the
trial court’s proper instructions. As for the portion of the prosecutor’s argument
relating to specific evidence in the case, all such evidence pertained to the
circumstances of the underlying crime, which the jury properly could consider
under factor (a).

determination. (People v. Welch (1999) 20 Cal.4th 701, 767; see People v.
Anderson, supra, 25 Cal.4th at p. 589.) We repeatedly have held that neither
Apprendi v. New Jersey (2000) 530 U.S. 466 nor Ring v. Arizona (2002) 536 U.S.
584 affects California’s death penalty law or otherwise justifies reconsideration of
the foregoing decisions. (People v. Cleveland (2004) 32 Cal.4th 704, 765; People
v. Martinez (2003) 31 Cal.4th 673, 700-701; People v. Prieto (2003) 30 Cal.4th
226, 262-263.) And contrary to defendant’s assertion, Blakely v. Washington
(2004) 542 U.S. ___ [124 S.Ct. 2531] does not undermine our analysis on the
point. That recent decision simply relied on Apprendi and Ring to conclude that a
state noncapital criminal defendant’s Sixth Amendment right to trial by jury was
violated where the facts supporting his sentence, which was above the standard
range for the crime he committed, were neither admitted by the defendant nor
found by a jury to be true beyond a reasonable doubt.
Finally, intercase proportionality review is not constitutionally required.
(People v. Cox (2003) 30 Cal.4th 916, 970; People v. Farnam, supra, 28 Cal.4th at
p. 193; People v. Anderson, supra, 25 Cal.4th at p. 602.) Nor does equal
protection require that capital defendants be provided with the same sentence
review afforded other felons under the determinate sentencing law. (People v.
Cox, supra, 30 Cal.4th at p. 970, and cases cited.)
5. Cumulative Error
Defendant contends that the cumulative effect of the errors at each phase of
trial denied him his constitutional rights to a fair trial and a reliable penalty
determination, thus requiring reversal of both the guilt and penalty judgments. We
disagree. Whether considered individually or together, the two or possibly three
errors that occurred in this case were minor and harmless.

For the reasons stated above, we find no reversible error in the record. The
judgment of death is affirmed.




See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Morrison

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted


Opinion No.

Date Filed: December 9, 2004


County: Los Angeles
Judge: Gary J. Ferrari


Attorneys for Appellant:

John L. Dodd and Robert F. Landheer, under appointments by the Supreme Court, for Defendant and


Attorneys for Respondent:

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C.
Hamanaka, Assistant Attorney General, John R. Gorey and Juliet H. Swoboda, Deputy Attorneys General,
for Plaintiff and Respondent.


Counsel who argued in Supreme Court (not intended for publication with opinion):

John L. Dodd
17621 Irvine Blvd., Ste. 200
Tustin, CA 92780
(714) 731-5527

Juliet H. Swoboda
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
(213) 897-2361


Opinion Information
Date:Docket Number:
Thu, 12/09/2004S023835

1The People (Respondent)
Represented by Attorney General - Los Angeles Office
Juliet H. Swoboda, Deputy Attorney General
300 South Spring Street, Suite 500
Los Angeles, CA

2Morrison, Jesse (Appellant)
Represented by Robert F. Landheer
Attorney at Law
924 Anacapa St., Suite 1-T
Santa Barbara, CA

3Morrison, Jesse (Appellant)
Represented by John L. Dodd
Law Offices Of John L. Dodd
17621 Irvine Blvd., Suite 200
Tustin, CA

Dec 9 2004Opinion: Affirmed

Oct 30 1991Judgment of death
Nov 18 1991Filed certified copy of Judgment of Death Rendered
Nov 10 1994Counsel appointment order filed
  John L. Dodd is appointed as counsel of record, and Robert F. Landheer is appointed as associate counsel, to represent appellant on his automatic appeal, including any related habeas proceedings.
Dec 1 1994Application for Extension of Time filed
  By Applt to request correction of Record.
Dec 1 1994Extension of Time application Granted
  To Applt To 2-10-95 To request Corr. of Record.
Feb 6 1995Application for Extension of Time filed
  By Applt to request correction of Record.
Feb 7 1995Extension of Time application Granted
  To Applt To 4-11-95 To request Corr. of Record.
Mar 30 1995Compensation awarded counsel
Apr 6 1995Received:
  copy of appellant's Application to correct, augment record, examine sealed transcripts, and settle record. (20 pp.)
May 10 1995Compensation awarded counsel
Jul 27 1995Compensation awarded counsel
Oct 19 1995Compensation awarded counsel
Mar 20 1996Compensation awarded counsel
May 15 1996Compensation awarded counsel
Dec 23 1996Compensation awarded counsel
Mar 26 1997Compensation awarded counsel
Sep 11 1997Compensation awarded counsel
Sep 24 1997Compensation awarded counsel
Jan 26 1998Change of Address filed for:
  Attorney John L. Dodd
May 21 1998Compensation awarded counsel
Jun 5 1998Compensation awarded counsel
Jul 8 1998Compensation awarded counsel
Sep 29 1998Compensation awarded counsel
Oct 28 1998Compensation awarded counsel
Dec 14 1998Compensation awarded counsel
Apr 13 1999Compensation awarded counsel
Sep 28 1999Compensation awarded counsel
May 17 2000Compensation awarded counsel
  Atty Dodd
Jul 7 2000Counsel's status report received (confidential)
Jul 24 2000Record on appeal filed
  C-29 (7,557 pp.) and R-20 (3,692 pp.) including material under seal; Clerk's Transcript includes 3,496 pages of Juror Questionnaires.
Jul 24 2000Appellant's opening brief letter sent, due:
Jul 26 2000Compensation awarded counsel
  Atty Dodd
Aug 4 2000Counsel's status report received (confidential)
Sep 6 2000Application for Extension of Time filed
  To file the AOB. (1st request)
Sep 7 2000Extension of Time application Granted
  To 11/3/2000 to file AOB.
Oct 13 2000Counsel's status report received (confidential)
  from atty Dodd.
Nov 14 2000Application for Extension of Time filed
  To file AOB. (2nd request)
Nov 29 2000Filed:
  Supplemenal declaration of John L. Dodd in support of second request for an ext. of time to file AOB.
Dec 4 2000Extension of Time application Granted
  To 1/2/2001 to file AOB.
Dec 13 2000Counsel's status report received (confidential)
Dec 29 2000Application for Extension of Time filed
  To file AOB. (3rd request)
Jan 4 2001Extension of Time application Granted
  To 5/1/2001 to file AOB.
Jan 5 2001Compensation awarded counsel
  Atty Dodd
Jan 10 2001Compensation awarded counsel
  Atty Dodd
Mar 5 2001Counsel's status report received (confidential)
May 2 2001Application for Extension of Time filed
  To file AOB. (4th request)
May 3 2001Extension of Time application Granted
  To 7/2/2001 to file AOB.
Jul 2 2001Application for Extension of Time filed
  to file AOB. (5th request)
Jul 16 2001Counsel's status report received (confidential)
  from atty Dodd.
Jul 16 2001Filed:
  Supplemental declaration in support of applt.'s request for extension of time to file AOB.
Jul 17 2001Extension of Time application Granted
  To 8/31/2001 to file AOB. No further extensions of time are contemplated.
Sep 4 2001Application for Extension of Time filed
  To file AOB. (6th request)
Sep 24 2001Counsel's status report received (confidential)
Oct 3 2001Filed:
  Declaration of Steven Parnes of CAP in support of applt.'s 6th request for extension of time to file AOB.
Oct 19 2001Filed:
  "Declaration of Steven W. Parnes Concerning Review of Draft Opening Brief".
Oct 24 2001Extension of Time application Granted
  To 11/30/2001 to file AOB. No further extensions of time will be granted.
Dec 6 2001Counsel's status report received (confidential)
  from atty Dodd.
Dec 6 2001Appellant's opening brief filed
  (193 pp. brief accepted for filing pursuant to Rule 40(n))
Dec 31 2001Request for extension of time filed
  to file respondent's brief. (1st request)
Jan 2 2002Compensation awarded counsel
  Atty Dodd
Jan 3 2002Extension of time granted
  To 3/8/2002 to file resp.'s brief.
Mar 1 2002Request for extension of time filed
  to file respondent's brief
Mar 5 2002Request for extension of time filed
  To file resp.'s brief. (2nd request)
Mar 8 2002Extension of time granted
  To 5/7/2002 to file resp.'s brief. Dep. AG Swoboda anticipates filing the brief by 7/6/2002. No further extensions is contemplated.
Apr 15 2002Respondent's brief filed
  (101 pp.)
Apr 15 2002Motion filed
  by respondent to strike from the appellate record the reporter's and clerk's transcripts of the separate and subsequent trial of codefendant Michael Berry.
Apr 30 2002Request for extension of time filed
  To file reply brief. (1st request)
Apr 30 2002Opposition filed
  by applt., to resp.'s motion to strike.
May 2 2002Extension of time granted
  To 6/5/2002 to file reply brief.
May 22 2002Compensation awarded counsel
  Atty Dodd
Jun 5 2002Request for extension of time filed
  To file reply brief. (2nd request)
Jun 10 2002Extension of time granted
  To 7/5/2002 file applt.'s reply brief.
Jun 14 2002Filed letter from:
  Resp., dated 6/12/2002, re what portions of record resp. wants to be stricken.
Jun 25 2002Opposition filed
  by applt. to resp.'s supplemental motion to strike portions of appellate record.
Jul 9 2002Request for extension of time filed
  To file applt.'s reply brief. (3rd request)
Jul 10 2002Portion of case record ordered stricken
  Good cause appearing therefor, respondent's "Motion to Strike from the Appellate Record the Reporter's and Clerk's Transcripts of the Separate and Subsequent Trial of Codefendant Michael Berry," filed April 15, 2002, and as supplemented by respondent's letter request to strike other documents, received June 12, 2002, are granted. The following items are hereby stricken from the record on appeal herein: 1. The following items entitled People v. Michael Berry, Court of Appeal, Second District, Division Four, No. B067093: a. Reporter's Transcript, volumes 1, 2, 3, and 4, in their entirety. b. Reporter's Transcript of proceedings occurring in the Los Angeles Superior Court on August 16, 1991 before the Honorable Richard F. Charvat (pp. 101-104 only). c. Pages 91-230 of Clerk's Transcript. 2. The following volumes of Supplemental II Clerk's Transcript: a. Volumes 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, and 11, in their entirety. b. Pages 3301-3496 and 3577-3597 of volume 12. Appellant's request for judicial notice of "the material in the Clerk's and Reporter's transcripts" of People v. Michael Berry, Court of Appeal, Second District, Division Four, No. B067093, is denied. Brown, J., was absent and did not participate.
Jul 22 2002Extension of time granted
  To 8/5/2002 to file appellant's reply brief.
Aug 5 2002Request for extension of time filed
  To file appellant's reply brief. (4th request)
Aug 9 2002Filed:
  Supplemental declaration in support of application for extension of time to file appellant's reply brief.
Aug 13 2002Extension of time granted
  To 10/4/2002 to file appellant's reply brief. After that date, no further extension is contemplated. Extension is based upon the representation of counsel John L. Dodd that he anticipates filing the brief by 10/4/2002.
Oct 3 2002Request for extension of time filed
  To file appellant's reply brief. (5th request)
Oct 11 2002Extension of time granted
  To 11/4/2002 to file appellant's reply brief. After that date, no further extension is contemplated. Extension is granted based upon counsel John L. Dodd's representation that he anticipates filing that brief by 11/3/2002.
Nov 4 2002Appellant's reply brief filed
  (47 pp.)
Mar 19 2003Compensation awarded counsel
  Atty Dodd
May 2 2003Related habeas corpus petition filed (concurrent)
  no. S115559.
Jun 6 2003Habeas funds request filed (confidential)
Jul 16 2003Order filed re habeas funds request (confidential)
Sep 11 2003Compensation awarded counsel
  Atty Dodd
May 10 2004Compensation awarded counsel
  Atty Dodd
May 19 2004Compensation awarded counsel
  Atty Dodd
Jul 29 2004Oral argument letter sent
  advising counsel that case could be scheduled for oral argument as early as the September calendar, to be held the week of Sept. 7, 2004, in San Francisco. Any request for additional time (to argue), notification of requirement for two counsel, or advisement of "focus issues" must be made no later than 10 days after the case has been set for oral argument.
Aug 25 2004Filed letter from:
  Appellant's counsel, dated 8/23/2004, requesting that if the matter is placed on the October calendar that it not be set for October 7, 2004 due to a pre-paid vacation.
Sep 1 2004Case ordered on calendar
  10/6/04 @ 1:30pm - Los Angeles
Sep 13 2004Filed letter from:
  respondent, dated 9/10/2004, re focus issues for oral argument and request for 45 minutes for argument.
Sep 15 2004Filed letter from:
  appellant's counsel, dated 9/14/2004, re focus issues for oral argument and request for 45 minutes for argument.
Sep 15 2004Order filed
  the request of appellant for 45 minutes for oral argument is granted.
Sep 15 2004Order filed
  the request of respondent for 45 minutes for oral argument is granted.
Sep 24 2004Received:
  letter from appellant, dated 9-23-2004, with additional authorities. (4 pp.)
Sep 24 2004Filed:
  appellant's application for order permitting filing of supplemental letter brief re: Blakely. (note: letter brief submitted under separate cover.)
Sep 28 2004Exhibit(s) lodged
  People's: 15; defendant's I; and defendant's I (from 402 hearing).
Sep 29 2004Request Denied
  Defendant's "Application for an Order Permitting the Filing of Supplemental Letter Brief re: Blakely," filed on September 24, 2004, is denied without prejudice to any relief to which defendant might be entitled after this court determines in People v. Black, S126182, and People v. Towne, S125677, the effect of Blakely v. Washington (2004) __ U.S. __, 124 S.Ct. 2531, on California law. George, C.J., was absent and did not participate.
Oct 6 2004Cause argued and submitted
Dec 8 2004Compensation awarded counsel
  Atty Dodd
Dec 9 2004Opinion filed: Judgment affirmed in full
  Majority Opinion by: Baxter, J., ----- Joined by George, CJ., Kennard, Werdegar, Chin, Brown and Moreno, JJ.
Dec 22 2004Compensation awarded counsel
  Atty Dodd
Dec 27 2004Rehearing petition filed
  by appellant. (2,118 words; 9 pp.)
Dec 30 2004Time extended to consider modification or rehearing
  to and including March 10, 2005, or the date upon which rehearing is either granted or denied, whichever occurs first.
Feb 23 2005Rehearing denied
  Petition for rehearing DENIED.
Feb 23 2005Remittitur issued (AA)
Feb 23 2005Exhibit(s) returned
  to Los Angeles County Superior Court: People's 15 and Defendant's I.
Mar 1 2005Order filed (150 day statement)
Mar 3 2005Received:
  Acknowledgment of receipt of remittitur.
Mar 7 2005Received:
  Acknowledgment of receipt of exhibits.
May 16 2005Received:
  letter from U.S.S.C., dated 5-11-2005, advising that time has been extended to 6-23-2005 for filing of petition for writ of certiorari.
Jun 22 2005Received:
  copy of apellant's cert petition. (15 pp. - excluding appendices)
Jun 24 2005Received:
  letter from U.S.S.C., dated 6/21/2005, advising cert petition filed 6/16/2005 as No. 04-10637.
Aug 10 2005Compensation awarded counsel
  Atty Dodd

Dec 6 2001Appellant's opening brief filed
Apr 15 2002Respondent's brief filed
Nov 4 2002Appellant'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