IN THE SUPREME COURT OF CALIFORNIA
Plaintiff and Respondent,
Defendant and Appellant.
Super. Ct. No. CR-59671
A jury convicted defendant John Mungia of the first degree murder of Alma
Franklin. (Pen. Code, §§ 187, 189; all further statutory references are to the Penal
Code unless otherwise indicated.) It found true special circumstance allegations
that the murder was committed while defendant was engaged in the commission of
robbery (§ 190.2, former subd. (a)(17)(i), now subd. (a)(17)(A)) and burglary
(§ 190.2, former subd. (a)(17)(vii), now subd. (a)(17)(G)), and that the murder was
intentional and involved the infliction of torture (§ 190.2, subd. (a)(18)). At the
penalty phase, the jury returned a verdict of death.
After defendant waived a jury trial on the issue, the trial court found true the
allegations that defendant had previously been convicted, within the meaning of
section 667, subdivisions (c) and (e), of attempted murder (§§ 187, 664), mayhem
(§ 203), and three counts of robbery (§ 211). The trial court denied the automatic
application to modify the verdict (§ 190.4, subd. (e)) and sentenced defendant to
death; in light of the death sentence, no sentence enhancements were imposed for
the prior convictions.
This appeal is automatic. (§ 1239, subd. (b).) We vacate the torture-murder
special-circumstance finding, but otherwise affirm the judgment.
A. Guilt Phase
1. Prosecution evidence
In October 1993, defendant moved into a trailer beside the house of his sister,
Cynthia Mungia, in Riverside. Cynthia lived across the street from 73-year-old
murder victim Alma Franklin. After moving in, defendant told Cynthia that if he
ever committed another robbery, he would have to kill the victim to avoid being
On April 11, 1994, Franklin placed a television set on the street to be picked
up as trash. Defendant asked her if the television worked; when she replied it did
not, defendant said he wanted a part from it.
On April 12, 1994, between 4:00 and 4:30 p.m., defendant asked Cynthia for
money. Cynthia refused to give him any and left to go to the store. As she was
leaving, she saw Franklin in front of her house. Cynthia returned, but she departed
again around 5:15 p.m. for her weekly bingo game. Although defendant
occasionally accompanied Cynthia to the bingo game, he did not do so on this
occasion. William Mills (Cynthia’s next-door neighbor), Kenneth Wilde
(Franklin’s next-door neighbor), and Melissa DeAnda (a friend of defendant’s
nephew, Alex Mungia) each also saw Franklin in front of her house from around
5:00 p.m. to 7:00 p.m. Around 7:00 p.m., Wilde heard defendant ask Franklin if
she needed help putting empty tar buckets on the curb for trash collection, and
Franklin said she did not.
Around 7:15 p.m., Manuel Lopez III (hereafter Lopez), who lived on the
same street as murder victim Franklin and defendant, heard a car coming quickly
down the street. Lopez and his father went to the street to yell at the driver to slow
down; they were surprised when they saw the car was Franklin’s. Lopez
considered Franklin a cautious driver, and he had never seen her allow anyone else
to drive her car. Lopez’s father thought the driver was Paul McAllister, Franklin’s
Around 9:15 p.m., Wilde heard a loud noise outside and called Franklin to
ask if she had heard the noise. No one answered the telephone.
On the morning of April 13, 1994, Mills saw Alex Mungia feeding the
chickens in Cynthia’s backyard, a job ordinarily performed by defendant. Later
that day, around 4:00 or 5:00 p.m., Melissa DeAnda, who was selling candy to
raise money for a school trip, went to Franklin’s house. Franklin’s front door was
open. Through the closed screen door, DeAnda could see Franklin lying on the
living room floor. DeAnda ran across the street to Cynthia’s house and told
Cynthia what she had seen. Cynthia ran to Franklin’s house and saw Franklin’s
garage door was open and her car was gone. Cynthia entered Franklin’s home and
saw that Franklin’s face was “gashed” in.
Cynthia ran to Mills’s house and told him that Franklin was “down in the
front room.” Mills went over to Franklin’s house, determined that she was dead,
and told Cynthia to tell his wife to call 911. After doing so, Cynthia went back to
her house, checked defendant’s trailer, and found no one there.
Riverside Police Officer Heath Baker and his partner responded to the 911
call. Baker saw Franklin lying on the living room floor with her feet bound
together by a white sock and her wrists bound in the same manner. Because of the
manner in which the blood had soaked the sock around Franklin’s wrists,
Riverside Police Detective George Callow, the lead crime scene investigator,
concluded the sock had been tied around Franklin’s wrists before she started to
bleed. Callow also observed damage to Franklin’s fingernails, which had blood
Callow noted bloodstains on the bookshelf, on the wall between the
bookshelf and coffee table, and on the chair near Franklin. The water in one of
Franklin’s toilets was red. In the master bedroom several dresser drawers were
partially open, and clothing was scattered about the floor. A sheath knife was in
the bedroom. The lower doors of a hallway linen closet were open and the closet
appeared to have been searched. Franklin’s wallet, her watch, and several pieces
of her jewelry were missing. There were no signs of forced entry.
Lopez told Riverside Police Detective Gary DeVinna that he had seen
someone driving Franklin’s car the night before. He described the driver having
very short, white hair. Defendant’s hair was normally longer and darker than that
of Paul McAllister (Franklin’s boyfriend, who Lopez’s father thought was the
driver of her car), but defendant had his hair cut during the first week of April
When Riverside Police Sergeant Daniel Horton noticed the open garage door
and the absence of a car, he reported to the National Crime Information Center
that Franklin’s car was stolen and wanted in connection with a homicide. About
9:30 p.m., Santa Ana Police Officer Jim Berwanger discovered Franklin’s car on
the 1300 block of South King Street in Santa Ana. Because the car was wanted in
connection with a homicide investigation, Berwanger had it impounded. Around
11:00 p.m., Detective DeVinna spoke with Cynthia and her mother; defendant was
not in his trailer next to Cynthia’s house.
On April 14, 1994, Lopez told Detective DeVinna that he believed Paul
McAllister, Franklin’s boyfriend, was the man he had seen driving Franklin’s car
on the night of the murder. But when shown a photographic lineup that included a
picture of McAllister, Lopez was not able to identify him. DeVinna also showed
him a photographic lineup that included a picture of defendant with long hair;
Lopez identified defendant but said he was not the driver of Franklin’s car because
the driver had short hair. At the time, he did not know that defendant had had his
hair cut a week before Franklin’s murder.
Detective DeVinna and his partner then talked to defendant. After defendant
was told of, and waived, his constitutional rights to remain silent and to have a
lawyer present, defendant said he was in his trailer the night of April 12. DeVinna
and his partner asked defendant remove his shirt. Defendant had superficial
scratches on his chest, which he said were itch scratches. Defendant told DeVinna
that on April 13 he looked for employment, rode around on a bus, went to a park
and a mall, and finally went to the house of his cousin, Peggy Chairez, where he
spent the night. Chairez’s daughter confirmed that defendant had spent the
evening of April 13 at Chairez’s house.
On April 20, 1994, California Department of Justice Senior Criminalist Ricci
Cooksey processed Franklin’s car for evidence. Cooksey recovered a gray hair
similar to Franklin’s from the front passenger carpet mat; the hair was covered
with a red substance that tested presumptively positive for blood. Two
fingerprints lifted by Cooksey from the passenger side of the front bumper were
later matched as defendant’s prints by California Department of Justice Latent
Print Analyst Donna Mambretti. Riverside Police Service Representative Richard
Greenwood also collected a pair of unmatched cufflinks, a silver-colored pillbox,
and a pearl tie pin from the floorboard area of the passenger compartment.
Cooksey also recovered from the car’s interior a Marlboro cigarette butt that had
lipstick on it. Franklin did not smoke; defendant smoked Camel brand cigarettes.
On April 26, 1994, DeVinna and his partner again talked to defendant.
Defendant told DeVinna he used to live in Santa Ana but no longer knew anyone
who lived there. Defendant denied ever having been in Franklin’s house, garage,
or car, and claimed he had never worked on or touched her car. Defendant told
DeVinna the only time he had ever spoken to Franklin was about the television
On May 4, 1994, Lopez spoke with his landlord, John Smothers. Smothers
showed him defendant’s photograph, which had appeared in that day’s newspaper;
defendant had short hair in the picture. After looking at the photograph, Lopez
concluded that defendant, not Paul McAllister, was the man he had seen driving
Franklin’s car on the day of the murder. Over a year later, on July 20, 1995,
Lopez was shown a photographic lineup and identified defendant as the driver of
On August 18, 1995, while defendant was serving a prison term on an
unrelated matter, Riverside County District Attorney Investigator Terry Fischer
executed a search warrant for defendant’s personal property. On the property
receipt issued by the prison to defendant, Fischer noted that “Betty” and
“0 (714) 547-2303” had been handwritten in the top right corner, and that “Betty,”
“Carlos Angulo, Jr.,” and an address on South Fairview in Santa Ana had been
handwritten in the bottom left corner. Riverside County Sheriff’s Detective J.D.
Purkiss, a documents and handwriting expert, identified the handwriting on the
paper as defendant’s.
Fischer determined Elizabeth Arreguin was defendant’s aunt, “Betty” was
her nickname, and Angulo was her son (and defendant’s cousin). According to
the telephone company’s records, “(714) 547-2303” was the unlisted number for
Arreguin’s telephone at the South Fairview address handwritten on defendant’s
Franklin’s last phone bill showed that on April 12, 1994, at 6:34 p.m., a call
was placed from her house to Arreguin’s apartment. Franklin’s personal phone
book contained no listings for a telephone number with a 714 area code, or the
names Elizabeth Arreguin or Betty Arreguin.
From April to July 1994, Arreguin and Angulo lived in an apartment on
South Fairview, about four-fifths of a mile from where Officer Jim Berwanger
recovered Franklin’s car. While Arreguin and Angulo were living on South
Fairview, defendant unexpectedly showed up one night and spent the night on the
sofa. At trial, Arreguin could not recall the exact date that defendant stayed at her
apartment, but she remembered that shortly after that visit, defendant had called
her once and said he was in custody. Collect calls were made from the men’s
prison in Chino, where defendant was incarcerated, to Arreguin’s number on April
30, 1994, and May 2, 1994.
Dr. Darryl Garber, a pathologist, performed an autopsy on Franklin’s body.
Franklin had been struck 23 times in the head and face, and there were four
significant injuries to her face. Dr. Garber was unable to estimate the time of
death, but he determined the cause to be craniocerebral injuries due to blunt force
trauma. Franklin’s body had defensive wounds on the back of her left hand, faint
ligature furrows on both wrists, an abrasion on her right shoulder, and bruises on
her left arm and shoulder. Dr. Garber could not determine whether the ligatures
were applied before or after Franklin’s death. Although the first blow may have
knocked Franklin unconscious, her defensive wounds suggested she had remained
conscious for a period of time. Dr. Garber noted Franklin had thick lacerations on
the left side of her head in different directions, which indicated they were
“inflicted in a frenzy almost” (that is, she received “a lot of blows in a short period
of time”), and characterized her injuries as extremely painful and some of the most
brutal that he had ever seen.
San Bernardino County Sheriff’s Department Criminalist Donald Jones
examined Franklin’s fingernails for DNA evidence. A polymerase chain reaction
test of genetic material recovered from fingernail fragments from Franklin’s right
hand eliminated Paul McAllister, but not defendant, as a suspect. All genetic
material analyzed by Jones that was foreign to Franklin was consistent with
defendant’s. One in 320 Caucasians, one in 940 Hispanics, and one in 1,300
African Americans have a DNA profile similar to defendant’s.
Over defendant’s objection, the prosecutor presented evidence of a prior
robbery to show a common plan or scheme and to prove defendant’s intent. Santa
Ana Police Officer William Hill investigated the May 4, 1983 robbery of a Tastee
Doughnut Shop employee, Micaela Partida, and the attempted murder of the
shop’s owner, Carl Shepard. After waiving his constitutional rights to remain
silent and to have a lawyer present, defendant denied being at the doughnut shop,
instead telling Hill he was at a park during the day and spent that night with a
woman whom he had met in a bar. Hill later learned defendant actually had spent
that night in his usual residence, the home of his grandmother and uncle.
Detective J.D. Purkiss identified defendant’s signature on a redacted guilty
plea form on which was written, “On 5-4-83 in Orange County I assaulted Micaela
Partida and Carl Shepard with a knife. I took money from the immediate presence
of Micaela Partida by force and fear and attempted to murder Carl Shepard by
stabbing him in the left eye and right arm with a knife. Dated 9-12-83, Johnny
2. Defense evidence
Defendant presented no evidence during the guilt phase.
B. Penalty Phase
1. Prosecution evidence
a) The Tastee Doughnut Shop robbery (§ 190.3, factors (b), (c))
While Micaela Partida was working as a cashier at the Tastee Doughnut
Shop, defendant entered the shop through the back door. Partida told defendant to
leave, so he did. A minute or two later, defendant entered the shop through the
front door, talked to another customer, left and returned again, and played a video
game. Defendant then went to the counter near the cash register and asked for a
cup of coffee. When Partida told him that a cup of coffee was 35 cents, defendant
said he lost his only quarter in the video game machine. Defendant later returned
to the counter area and said, “I’m going to do a robbery.” He drew a knife,
jumped over the counter, opened the cash register, and started taking money out of
it. Partida fled across the street.
Carl Shepard was in the kitchen area when defendant entered from the front
of the doughnut shop. Defendant charged Shepard, who threw a baking sheet at
him. Defendant then stabbed Shepard: The blade entered Shepard’s left eye and
exited through the roof of his mouth. Defendant withdrew the knife, stabbed
Shepard in the bicep of his right arm, and ran out the back door of the shop.
On October 13, 1984, defendant pleaded guilty to mayhem, robbery,
attempted murder, and two counts of assault with a deadly weapon.
After the robbery, Partida stopped trusting people, could not get defendant
out of her mind, and sought therapy. She could no longer work because she could
not trust people, and she believed the trauma from the robbery prevented her from
being a good mother.
b) Other prior criminal activity resulting in felony
convictions (§ 190.3, factors (b), (c))
On June 27, 1976, defendant burglarized a Santa Ana home by entering
through a window. On November 21, 1976, defendant pleaded guilty to burglary.
On July 9, 1977, defendant robbed an employee and a customer of a
Winchell’s Doughnut House in Santa Ana, taking money, doughnuts, and the
customer’s purse. Defendant told the employee not to call the police or he would
“kill” or “get” her, and told the customer he would shoot her if she did not give
him the purse. On August 23, 1977, defendant pleaded guilty to robbery.
On July 10, 1977, defendant drew a butcher knife on an employee of the
Greenville Market in Santa Ana, twice hit him with the butt of the knife, and said,
“Give me the money or I’ll stab you.” The employee gave defendant the money
out of the cash register and two packages of cigarettes. On August 23, 1977,
defendant pleaded guilty to robbery.
On October 27, 1979, defendant and a confederate robbed the U’Totem
Market in Santa Ana. Defendant approached the manager with a knife and took
the manager’s wallet and money from the cash register. On January 21, 1980,
defendant pleaded guilty to robbery with the use of a knife.
c) Other prior criminal activity (§ 190.3, factor (b))
On March 11, 1975, defendant knocked on the front door of an elderly
woman’s house and asked if he could use the telephone. The woman refused,
quarreled with defendant, and shut the door. Defendant pulled out a pellet gun,
placed it against the glass window in the door, and fired into the house.
d) Victim impact testimony (§ 190.3, factor (a))
Lois Hamilton, a friend of murder victim Franklin, described Franklin as an
active church member who took great pride in her home and yard and was “a very
loving, caring person” who never got upset with anyone. Jeanne Bell, one of
Franklin’s nieces, described Franklin as “close” to her nieces and nephews. Bell
spoke with Franklin at least weekly. Franklin helped Bell after Bell’s mother died
in 1989 and her father died the following year, and they grew even closer.
Franklin was in good health and walked daily before her murder.
2. Defense evidence
Dr. James Bartley, a clinical geneticist, examined defendant and determined
he had Klinefelter’s syndrome, a chromosomal abnormality in which a male has
two X and one Y chromosomes. A male with Klinefelter’s syndrome often has
some developmental delays, but usually catches up with his peers as an adult. The
physical characteristics of Klinefelter’s syndrome include increased breast tissue
during puberty, lower testosterone levels, and smaller testes. Dr. Bartley found
defendant had normal language skills and smaller than normal sized testes, but did
not have enlarged breasts.
Dr. Arnold Lee Medearis, an obstetrician, gynecologist, and geneticist,
testified that a male with Klinefelter’s syndrome typically has problems with
language skills, is infertile, and has an intelligence quotient below the average for
others in his family. A male with Klinefelter’s syndrome is typically less
aggressive than the average person, but may have poor impulse control.
Defendant contends the trial court erred by denying his pretrial continuance
requests, removing the public defender as his counsel of record, and denying his
motion made under People v. Marsden (1970) 2 Cal.3d 118 (Marsden) to replace
the attorney the trial court appointed after it removed the public defender. These
are the pertinent facts:
The felony complaint was filed on November 2, 1994. On November 21,
1994, the trial court appointed as defendant’s counsel the Riverside County Public
Defender, who assigned Deputy Public Defender John Isaacs to handle the case.
The information was filed on February 23, 1995. On March 3, 1995, the court set
November 20, 1995, as defendant’s trial date.
On July 21, 1995, Isaacs advised the trial court that Deputy Public Defender
Mara Feiger was also assigned to defendant’s case; Feiger was to work exclusively
on penalty phase preparation.
On October 13, 1995, on defendant’s motion, the trial was continued to
January 8, 1996, because defense counsel had not received any DNA evidence
from the prosecution and needed more time to complete the penalty phase
investigation. On December 15, 1995, the defense still had not received all of the
DNA evidence. Because Isaacs was on a leave of absence to care for his ill wife,
the trial court set a trial readiness conference for January 26, 1996, and anticipated
the trial would start within 30 days from that conference.
On January 26, 1996, the prosecution produced its DNA discovery, and
defendant moved to continue the trial to April 15, 1996, to allow him to review the
discovery. Stating that the public defender’s office had been on the case “well
beyond a year,”1 the trial court instead scheduled a trial readiness conference for
February 26, 1996, and anticipated the trial would start within 30 days from that
conference. The court also warned Isaacs not to “be surprised the next time you
come here and you find me reticent to grant another continuance.”
On February 26, 1996, Isaacs informed the trial court that he was not ready
for trial because the prosecution had disclosed only its DNA expert’s report, but
The public defender had been appointed 14 months before this hearing.
none of the information that would be required to evaluate the report. On March
1, 1996, after the prosecution disclosed the requested information, the court stated,
“we are coming up on two years,”2 scheduled a trial readiness conference for
March 22, 1996, and set April 15, 1996, as the trial date.
On March 6, 1996, Isaacs suffered a heart attack and later was hospitalized.
On March 19, 1996, Isaacs’s doctor signed a note indicating Isaacs would be
totally disabled until at least April 19, 1996. On March 22, 1996, defendant orally
moved to vacate the trial date because of Isaacs’s condition. The trial court denied
the motion and continued the trial readiness conference to March 26, 1996.
On March 26, 1996, defendant filed a written motion to continue his trial to
an undetermined date. At the hearing on the motion held that day, Supervising
Deputy Public Defender Toni Healy informed the trial court, “It is unlikely at this
point that [Isaacs] will return to trial work.” Nonetheless, because there still was
“a possibility” that Isaacs could try the case, defendant orally requested a
monthlong continuance to assess Isaacs’s condition. The court noted the age of
the case,3 vacated the trial date, and “put this matter over” to April 2, 1996.
At the April 2 conference, the trial court stated it would relieve the public
defender unless that office assigned defendant’s case to another attorney.
Defendant stated his desire to be represented by the public defender. The court
continued the case to April 5, 1996.
On April 5, 1996, Deputy Public Defender Feiger informed the trial court
that she was “unprepared” to become lead counsel because she had been working
At this point, Franklin had been killed nearly two years previously, but the
public defender had been appointed only 16 months earlier.
The trial court said the case was “old, April of ’94,” but Healy pointed out
the complaint had not been filed until November 1994.
exclusively on the penalty phase, and it would take her “many months” to
familiarize herself with the guilt phase issues. In a written declaration,
Supervising Deputy Public Defender Healy explained Isaacs might need bypass
surgery. Healy said that if all went well, Isaacs might be able to resume doing jury
trials in three months, but it was also possible that he would never be able to return
to work again. So that the public defender’s office could obtain more information
about the state of Isaacs’s health, the court scheduled a trial readiness conference
on April 12, 1996.
At the April 12, 1996, conference, Acting Riverside County Public Defender
Margaret Spencer, Supervising Deputy Public Defender Healy, and Deputy Public
Defender Feiger all appeared on defendant’s behalf. Spencer told the trial court
that defendant’s case had been reassigned to Deputy Public Defender Stu Sachs,
but he would not be prepared to try the case until January 1997, if he were
assigned no other cases by the public defender’s office, or April 1997, if he were
assigned other cases. The prosecution expressed doubt that Sachs would be able
to try the case that soon because of his heavy workload, and moved to have the
public defender relieved as defendant’s counsel. The court suggested appointing a
private attorney as cocounsel to determine whether the requested preparation time
was reasonable, and if this private attorney could prepare the case more quickly,
the public defender would be relieved. The public defender refused to accept the
appointment of cocounsel, so the court found her to be unavailable and relieved
her as defendant’s counsel.
The trial court appointed private attorneys Randolph Driggs and Paul Grech
to represent defendant, and it ordered them to review the case and advise the court
on how long it would take to prepare for trial. The court said it was “not looking
for the lowest bidder, . . . not looking for the person who says they can do it in the
shortest amount of time”; it said it would reappoint the public defender if Driggs
and Grech could not prepare for trial in an amount of time significantly shorter
than the estimate given by Sachs. Defendant personally objected to the court’s
removal of the public defender. The court continued the trial readiness conference
to May 3, 1996, with the trial scheduled to start 60 days from that conference.
On April 25, 1996, defendant filed in the Fourth District Court of Appeal a
petition for writ of mandate seeking reinstatement of the public defender as his
counsel. The petition was summarily denied on April 30, 1996. We denied
defendant’s petition for review.
On May 3, 1996, Attorneys Driggs and Grech sought to clarify the scope of
their representation; the trial court told them they had been counsel of record since
April 12. Defendant again objected to the court’s April 12 removal of the public
defender. The court repeated that it would reappoint the public defender if Driggs
and Grech could not prepare for trial in a substantially shorter time than the public
defender. The court continued the trial readiness conference to May 13, 1996.
On May 13, 1996, defendant moved to disqualify the trial court under Code
of Civil Procedure section 170.6; the trial court summarily denied the motion as
untimely. The court said it would let the public defender’s office “just step back
in the case if they want it,” provided that office would be able to try the case in a
reasonable amount of time. The court continued the trial readiness conference to
May 24, 1996, with the trial scheduled to start by July 2, 1996.
On May 24, 1996, Attorney Grech told the trial court that he and Attorney
Driggs would need 10 months to prepare for trial. The court asked if defendant
would prefer to be represented by the public defender; defendant responded
inaudibly (but presumably in the affirmative). Deputy Public Defender Feiger
explained that Deputy Public Defender Sachs had returned from vacation, but the
court said it wanted Sachs to appear in court before it would consider reappointing
the public defender. The trial readiness conference was continued to May 28,
On May 28, 1996, Attorney Driggs told the trial court he could be prepared
for trial by January or February 1997. The court terminated Grech’s appointment
to allow Driggs to find his own Keenan counsel.4 (See Keenan v. Superior Court
(1982) 31 Cal.3d 424 (Keenan).) Deputy Public Defender Sachs informed the
court that Isaacs was no longer trying cases, and that Sachs had inherited from
Isaacs a four-defendant homicide case. The court continued the trial readiness
conference to June 3, 1996, to permit the public defender’s office to present its
estimate as to when it could be ready for trial.
On June 3, 1996, Deputy Public Defender Sachs informed the trial court that,
in light of his new case assignments, he could not be prepared to go to trial until
June 1997. Defendant moved for substitution of counsel under Marsden, supra, 2
Cal.3d 118, citing Attorney Driggs’s failure to contact him since his appointment.
Defendant also complained of a conflict of interest because the trial judge had
been Driggs’s “boss” when both were in the Riverside County District Attorney’s
Office. The court denied the Marsden motion and set a status conference for July
12, 1996, with the trial scheduled to start 60 days from that conference.
From July 1996 to January 1997, the trial court held periodic status
conferences and extended the trial date at each conference. With Driggs
representing defendant, the trial began on January 13, 1997.
Driggs ultimately indicated he did not think defendant’s case warranted the
appointment of Keenan counsel and represented defendant by himself.
1. Denial of continuance requests and removal of the public
defender as counsel
Defendant contends the trial court’s denial of his requests for continuances
and removal of the public defender as counsel of record violated his rights to due
process, to equal protection, to the effective assistance of counsel, to
representation by counsel of his choice, to present a defense, and to a fair trial
under the Sixth, Eighth, and Fourteenth Amendments to the United States
Constitution, as well as sections 7 and 15 through 17 of article I of the California
a) Denial of continuance request
At the outset, we note the trial court did not err in denying defendant’s
section 1050 motion to continue his trial because it in fact granted that motion.
On March 26, 1996, defendant moved to continue the trial date to “None set,” and
the court vacated the trial date. Even after the court relieved the public defender
as defense counsel on April 12, it made it clear that defendant’s new counsel
Our recent observation in People v. Boyer (2006) 38 Cal.4th 412, 441,
footnote 17, applies here: “In most instances, insofar as defendant raised the issue
at all in the trial court, he failed explicitly to make some or all of the constitutional
arguments he now advances. In each instance, unless otherwise indicated, it
appears that either (1) the appellate claim is of a kind . . . that required no trial
court action by the defendant to preserve it, or (2) the new arguments do not
invoke facts or legal standards different from those the trial court itself was asked
to apply, but merely assert that the trial court’s act or omission, insofar as wrong
for the reasons actually presented to that court, had the additional legal
consequence of violating the Constitution. To that extent, defendant’s new
constitutional arguments are not forfeited on appeal. [Citations.] [¶] In the latter
instance, of course, rejection, on the merits, of a claim that the trial court erred on
the issue actually before that court necessarily leads to rejection of the newly
applied constitutional ‘gloss’ as well. No separate constitutional discussion is
required in such cases, and we therefore provide none.”
would be given time to prepare the case. Defendant did not go to trial until
January 13, 1997.
Defendant contends, however, that the trial court abused its discretion in
denying his March 26, 1996, oral request for a one-month continuance to permit
Deputy Public Defender Isaacs’s doctor to determine whether Isaacs would be
capable of representing defendant. Defendant notes that after the court vacated
defendant’s trial date on March 26, it continued the case in a piecemeal fashion
until April 12, when it relieved the public defender as counsel of record. On
April 5, the court knew that if Isaacs required surgery, and if it was successful,
Isaacs could resume trying cases by July 1996. On the same date, the court also
knew that the public defender’s office was still working on the case, despite the
court’s indication that it was contemplating relieving the public defender as
counsel. Defendant thus argues that the court’s decision on April 12, 1996, to
relieve the public defender rather than ordering another short continuance to learn
more about Deputy Public Defender Isaacs’s status was, in effect, a denial of
defendant’s March 26 oral request for a one-month continuance.
Defendant argues that an additional short continuance would not have caused
a noticeable delay, as a continuance would have been necessary in any event to
analyze the DNA evidence that the prosecution had disclosed only on March 1,
1996. This is especially true, defendant asserts, because on April 12 the trial court
gave Attorneys Driggs and Grech three weeks to prepare their estimate on how
long it would take them to prepare for trial. Defendant also asserts the trial court’s
repeated miscalculation of the age of his case caused the court to think the case
was older than it actually was (see fns. 1-3, ante), and that the court unfairly
blamed defendant for the prosecution’s tardiness in providing the DNA discovery.
A continuance in a criminal trial may only be granted for good cause.
(§ 1050, subd. (e).) “The trial court’s denial of a motion for continuance is
reviewed for abuse of discretion.” (People v. Jenkins (2000) 22 Cal.4th 900,
1037.) “There are no mechanical tests for deciding when a denial of a continuance
is so arbitrary as to violate due process. The answer must be found in the
circumstances present in every case, particularly in the reasons presented to the
trial judge at the time the request is denied.” (Ungar v. Sarafite (1964) 376 U.S.
575, 589; see also Jenkins, supra, 22 Cal.4th at p. 1039.)
In reviewing the decision to deny a continuance, “[o]ne factor to consider is
whether a continuance would be useful. [Citation.]” (People v. Frye (1998)
18 Cal.4th 894, 1013.) In Frye, we upheld the trial court’s denial of a midtrial
open-ended continuance sought so the defendant could seek medical treatment for
his mental health issues, reasoning that the trial court could have reasonably
inferred that a continuance “was not likely to result in any positive change in [the]
defendant’s mental state.” (Ibid.) In this case, the trial court knew Deputy Public
Defender Isaacs had suffered a heart attack that required hospitalization.
Supervising Deputy Public Defender Healy told the court it was unlikely Isaacs
would return to trial work, although she said he might be able to return to trying
cases by July 1996. Although defendant argues that Frye is distinguishable
because the request there was open-ended, here there was no guarantee that on
April 19, 1996, Deputy Public Defender Isaacs’s physician would have been able
to offer a more accurate prognosis. From the trial court’s perspective, there was
little to indicate that the issue of Isaacs’s fitness to try the case would be resolved
in the near future. Therefore, the court did not abuse its discretion by declining to
wait for more information.
Even if the trial court did abuse its discretion in denying the defendant’s
request for a continuance to April 19, 1996, he suffered no prejudice. On May 28,
Deputy Public Defender Sachs told the court that Deputy Public Defender Isaacs
was “no longer trying cases” and that he (Sachs) had taken over another of
Isaacs’s cases. Defendant argues that this comment meant merely that Isaacs was
not trying cases at that moment, but there remained the possibility that he could
resume doing so in the near future. But if Isaacs could have resumed work on
defendant’s case (and thus could have been ready for trial before Attorney Driggs)
due to improvements in his health, Sachs surely would have mentioned this at
either the May 28 or the June 3 hearing, because at each of these hearings Sachs
gave the court a status report about when the public defender’s office could be
available to try the case. Sachs, however, gave no indication that Isaacs would
ever be able to try defendant’s case. Thus, on April 19 Isaacs was not ready to
work on defendant’s case, and there was no reason to believe that he could do so
in the foreseeable future. Consequently, defendant suffered no prejudice from the
court’s not waiting until April 19 to learn more about Isaacs’s recovery from the
Defendant’s contention that the trial court should have granted a longer
continuance that would have allowed the public defender to remain on the case is
related to his claim regarding the trial court’s removal of the public defender and
is discussed below.
b) Removal of appointed defense counsel
“A court may remove appointed counsel both to ‘prevent substantial
impairment of court proceedings’ [citation] and when counsel, without good
cause, does not become ready for trial (§ 987.05).” (People v. Cole (2004)
33 Cal.4th 1158, 1188 (Cole).) A trial court’s removal of appointed counsel for an
indigent defendant is reviewed for abuse of discretion. (People v. Panah (2005)
35 Cal.4th 395, 426.)
Defendant contends his continued representation by the public defender did
not threaten to substantially impair judicial proceedings. Defendant argues the
trial court removed the public defender for an improper reason: Because the
public defender refused to accept the appointment of cocounsel. The trial court,
defendant reasons, lacked the authority to force a court-appointed attorney to
accept cocounsel. (See People v. Padilla (1995) 11 Cal.4th 891, 928; see also
§ 987, subd. (d) [“In a capital case, the court may appoint an additional attorney as
a cocounsel upon a written request of the first attorney appointed” (italics
Defendant’s contention lacks merit. Although the trial court did state, “[i]f
you are telling me you won’t cooperate with whoever I appoint, you are going to
force me to relieve you,” it did so only after it had found the public defender’s
office’s time estimate to be “excessive.” The court made clear it would relieve the
public defender unless outside counsel agreed that the public defender’s time
estimate was “reasonable.” Thus, the court relieved the public defender because
she was delaying the case without good cause, not as punishment for refusing
cocounsel. Indeed, the court repeatedly stated it would reappoint the public
defender if private counsel could not be prepared in a significantly shorter amount
of time. Although Deputy Public Defender Isaacs’s medical condition certainly
necessitated some delay, the court did not abuse its discretion in concluding that
the amount of time the public defender requested was unreasonable. Defendant
therefore has not shown that the trial court removed the public defender for an
Citing Williams v. Superior Court (1996) 46 Cal.App.4th 320, defendant
argues the trial court lacked the authority to remove the public defender without
further inquiry to determine whether Deputy Public Defender Sachs’s estimate of
the time he would need to prepare for trial was reasonable. In Williams, the trial
court appointed private counsel instead of the public defender to represent the
defendant because it was concerned that the deputy, Peter Swarth, assigned to
represent the defendant was carrying too large a caseload. (Id. at pp. 324-325.)
Although in Williams the defendant’s petition for a writ of mandate was rendered
moot by the commencement of his trial, the Court of Appeal held that the trial
court erred because its decision not to appoint the public defender was based
solely on the number and ages of the cases assigned to Swarth without inquiring
whether any of those cases might be continued or otherwise expeditiously
resolved. (Id. at p. 332.) In contrast, here the trial court specifically inquired how
long it would take Deputy Public Defender Sachs to prepare defendant’s case for
trial. The prosecutor expressed concern over Sachs’s caseload, and the court also
sought outside estimates.6
To bolster his claim that the trial court did not adequately inquire as to
whether Deputy Public Defender Sachs’s estimate was reasonable, defendant
notes that on January 26, 1996, Deputy Public Defender Isaacs told the court that
three more months were needed to analyze the DNA evidence (which was not
fully disclosed until March 1), and on April 12 Deputy Public Defender Feiger
explicitly said the case was not ready for trial. At the April 12 conference,
however, the court asked how long it would take Sachs to prepare, and defendant
does not explain why the court could not rely on Sachs’s estimate (provided by
Deputy Public Defender Feiger) of nine to 12 months. At that conference, the
court knew the trial could not start imminently; the issue the court was concerned
Deputy Public Defender Feiger reminded the trial court that the court had
“spoke[n] to Mr. Finn like a week or so ago . . . asking Mr. Finn about his
attorneys and their, how long it would take them, the consensus is nine months to
a year.” The court responded, “I also spoke to Mr. Harmon, and I also spoke to
Mr. Phillips, and neither of them gave me that kind of estimate.” The record does
not state who Finn, Harmon, and Phillips were, but apparently they were
experienced criminal law practitioners.
about was whether the public defender’s delay in becoming ready for trial was
reasonable. Defendant argues the speed with which other counsel could prepare
the case was irrelevant in deciding how long a continuance to grant him. We
disagree; the trial court here reasonably concluded that estimates by criminal
defense attorneys about the length of time they would need to prepare defendant’s
case for trial would assist it in evaluating the reasonableness of the public
defender’s request for a continuance.
Defendant contends the trial court improperly delegated to Attorneys Driggs
and Grech its duty to determine the reasonableness of defendant’s request for a
continuance. The court, however, did not delegate any decisionmaking authority;
rather, it appointed Driggs and Grech as defendant’s counsel of record, while
leaving open the possibility that it would reappoint the public defender if Driggs
and Grech could not be ready for trial much sooner than the public defender’s
Defendant, relying on Smith v. Superior Court (1968) 68 Cal.2d 547 (Smith),
contends that a trial court must exhaust all reasonable alternatives before removing
counsel, even (as in this case) incapacitated counsel, and that the trial court here
failed to do so before relieving the public defender as defendant’s counsel. In
Smith, after a series of acrimonious exchanges between the trial court and defense
counsel, the court, over the defendant’s strong objection, vacated counsel’s
appointment on the ground that he was not competent to represent defendant. We
granted the defendant’s petition for writ of mandate and ordered counsel’s
reinstatement. We noted that trial courts should relieve a defendant’s appointed
counsel for physical incapacity “with great circumspection and only after all
reasonable alternatives, such as the granting of a continuance, have been
exhausted” (id. at p. 559), before going on to explain that the question whether a
trial court could remove an attorney for incompetence — at issue in Smith — was
a “far more difficult question” (ibid.). We held that the court’s removal of the
defense attorney in Smith based on his arguments to the court was a “threat to the
independence of the bar” (id. at p. 560) that constituted “a serious and
unwarranted impairment” of the defendant’s right to counsel (id. at p. 561).
Contrary to defendant’s arguments, our decision in Smith, supra, 68 Cal.2d
547, did not compel the trial court here to grant a continuance, or to continue the
public defender’s appointment as counsel of record. At the time the court relieved
the public defender as counsel, the public defender had represented defendant for
17 months, the deputy initially assigned to represent defendant (Deputy Public
Defender Isaacs) was physically incapacitated and the court had no reason to
believe he would ever be able to try the case, the newly assigned deputy (Deputy
Public Defender Sachs) said he would need at least nine more months before he
could try the case, and the trial court had reason to believe (based on the
prosecutor’s concerns about Sachs’s heavy caseload) that even this estimate was
unrealistically optimistic. Under these circumstances, the trial court did not abuse
its discretion in concluding that all reasonable alternatives to relieving the public
defender had been exhausted. (See Cole, supra, 33 Cal.4th at p. 1188.)
Defendant also relies on three other decisions by this court: People v.
Crovedi (1966) 65 Cal.2d 199 (Crovedi), People v. Ortiz (1990) 51 Cal.3d 975
(Ortiz), and People v. Courts (1985) 37 Cal.3d 784 (Courts). Each of these cases
involved a trial court’s decision to remove the defendant’s retained counsel of
choice, not (as in this case) appointed counsel. To the extent defendant claims a
violation of the right to counsel of choice, that right is not applicable here because
it applies only to retained counsel. (See generally People v. Easley (1988)
46 Cal.3d 712, 732 [“Failure to appoint the attorney desired by a defendant is not
interference with the right to counsel of choice. Conversely, the fact that a
defendant is pleased with counsel appointed for him by a court does not transform
his attorney into retained counsel . . . . [and] the special considerations that must
be taken into account when a court contemplates the removal (over objection) of a
retained attorney because of a conflict do not come into play . . . .”].) And even if
we assume for the sake of argument that the trial court’s power to remove
appointed counsel is no greater than its power to remove retained counsel (see
generally Smith, supra, 68 Cal.2d at pp. 561-562), the facts of Crovedi, Ortiz, and
Courts are distinguishable from this case, as we explain below.
In Crovedi, supra, 65 Cal.2d at pages 206-209, we held that the trial court
erred when it discharged the defendant’s attorney, who had suffered a heart attack
in the middle of the trial, even though a doctor said the attorney could resume the
trial in two months, the same amount of time it would take successor counsel to
prepare for trial. Here, by contrast, Deputy Public Defender Isaacs’s heart attack
occurred before the trial had started, the projected length of his absence was
unknown, and it was unclear that he would ever return.
In Ortiz, supra, 51 Cal.3d at page 987, we held that the trial court erred in
requiring the defendant to demonstrate his retained counsel’s incompetence as a
condition of discharging counsel. Thus, in Ortiz the issue was whether the trial
court erred in refusing to allow the defendant to discharge his attorney; by
contrast, here the issue is whether the trial court erred in insisting that defendant’s
attorney be discharged. And in Ortiz, there was no evidence that allowing the
defendant to discharge his attorney would disrupt the judicial process, whereas
here there was evidence that the public defender was disrupting the judicial
process by unreasonably delaying the proceedings: Attorney Drigg’s estimate of
the time he needed to prepare for trial was less than the public defender’s most
optimistic estimate, even though the public defender had already represented
defendant for almost a year and a half.
In Courts, supra, 37 Cal.3d at page 796, we held that the trial court erred in
denying the defendant’s request for a continuance so retained counsel could be
brought into the case. In Courts, however, the defendant had been reasonably
diligent in trying to replace the attorney appointed by the trial court with privately
retained counsel; no privately retained counsel ever sought to represent defendant
Defendant also cites a trio of civil cases, each holding that a trial court abused
its discretion in denying a litigant’s motion for a continuance. (Oliveros v. County
of Los Angeles (2004) 120 Cal.App.4th 1389 [reversing directed verdict where
litigant was unrepresented because trial counsel unexpectedly had to go to trial in
another case]; Lerma v. County of Orange (2004) 120 Cal.App.4th 709 [reversing
summary judgment where trial counsel could not file an opposition due to his
hospitalization]; Hernandez v. Superior Court (2004) 115 Cal.App.4th 1242
[granting writ of mandate where, after trial counsel’s death, the trial court denied
successor counsel’s requests to reopen discovery and for a continuance].) Even if
we assume that these cases, which involve continuance requests by retained
counsel in civil cases, are pertinent here, where a continuance request was made
by appointed counsel in a criminal case (but see, e.g., Roswall v. Municipal Court
(1979) 89 Cal.App.3d 467, 472-473; compare §§ 987.05, 1050, subd. (e), with
Code Civ. Proc., §§ 128, 284), all three are distinguishable: In those cases, the
trial court’s denial of a continuance meant either that the litigant was
unrepresented by counsel, or that the litigant was represented by an attorney who
had an inadequate opportunity to prepare. Here, by contrast, the trial court gave
the defense an adequate opportunity to prepare for trial.
More pertinent is Cole, supra, 33 Cal.4th 1158. In Cole, the trial court
appointed as defense counsel the Alternate Defense Counsel (hereafter ADC),
which assigned the case to Attorney Wayne Brandow. (Id. at p. 1179.) After
Brandow left the ADC, the trial court granted several continuances because the
ADC’s replacement for Brandow was not ready for trial, and ultimately the court
relieved the ADC as counsel and appointed Attorney Marvin Part, who told the
court he could be prepared for trial faster than the ADC. (Id. at pp. 1182-1183.)
We held the court did not abuse its discretion in relieving the ADC because its
skepticism of the ADC’s ability to be ready for trial was reasonable in light of that
office’s requests for a number of continuances. (Id. at p. 1188; see also People
v. Panah, supra, 35 Cal.4th at p. 426 [upholding trial court’s replacement of
appointed second counsel due to counsel’s “indeterminate unavailability”].) As in
Cole, the trial court here, given the procedural history of defendant’s case as
discussed above, reasonably was skeptical of the public defender’s ability to
become ready for trial in a timely manner.
Defendant argues that Cole is distinguishable because here Deputy Public
Defender Isaacs’s heart attack was an unforeseen event and not part of a pattern of
delay and unpreparedness for trial, as in Cole. Yet Deputy Public Defender Feiger
admitted to the trial court that she and Isaacs had been working on a continuance
motion before Isaacs’s March 6, 1996, heart attack, as they anticipated that they
would not be prepared to go to trial on April 15, 1996, the date set by the trial
court just before Isaacs’s heart attack. Defendant notes that the trial court in Cole
attempted to accommodate the defendant’s preference to be represented by the
ADC by granting several continuances, and he faults the trial court here for not
doing likewise. But the trial court need not always accommodate the defendant’s
preference. “The essential aim ‘is to guarantee “an effective advocate for each
criminal defendant rather than to ensure that a defendant will inexorably be
represented by the lawyer whom he prefers.” ’ ” (People v. Sapp (2003) 31
Cal.4th 240, 256; see also Cole, supra, 35 Cal.4th at p. 1184.) The trial court need
not grant further continuances if it reasonably concludes that it must remove
appointed counsel “to ‘prevent substantial impairment of court proceedings’
[citation] and when counsel, without good cause, does not become ready for trial
[citation].” (Cole, supra, at p. 1188.) That, in essence, is what the trial court did
Defendant further attempts to distinguish Cole by noting that there the
defendant’s appointed counsel Part “was ‘firm’ in [the] defendant’s defense”
(Cole, supra, 33 Cal.4th at p. 1189), whereas here Attorney Driggs did not review
defendant’s file until after being appointed. But Part’s “firmness” in Cole was
only in comparison to that of former ADC Attorney Brandow (whose availability
and readiness were uncertain) and that of the ADC (which the trial court no longer
believed could be ready to go to trial in a timely manner). (Ibid.) Here, Driggs
reviewed the case file, offered his estimate of the time he needed to prepare for
trial, and never wavered from his commitment to the case nor indicated any
inability to proceed within his time estimate.
Defendant also contends that the trial court in Cole, supra, 33 Cal.4th 1158,
removed the ADC with the expectation of expediting those proceedings, but it was
unrealistic for the trial court here to think removing the public defender would
expedite this case. We disagree. The court considered the public defender’s
request (after Deputy Public Defender Isaacs’s heart attack) for an additional nine
to 12 months to prepare for trial (in addition to the 17 months it already had spent
on the case). When the court reasonably inquired who the public defender would
assign to represent defendant, the public defender (through her deputies) asked the
court to adopt a wait-and-see approach as to when Isaacs would be able to return
to work. Under these circumstances, the court did not abuse its discretion in
rejecting the public defender’s request for the continuance.
Finally, defendant argues that the trial court abused its discretion in denying
his April 1996 request for a nine-to-12-month continuance (which would have
allowed the public defender to remain on the case) because his trial began in
January 1997 — that is, within Deputy Public Defender Sachs’s original time
estimate. But as the prosecutor noted, Sachs already had been assigned another
death penalty case, making it unlikely that he would be able to prepare for
defendant’s trial within a year. And Sachs ultimately revised his time estimate,
saying he would not be able to take defendant’s case to trial until June 1997.
Although defendant’s trial began within Deputy Public Defender Sachs’s original
time estimate, under the circumstances just discussed, the trial court reasonably
could have found Sachs’s original time estimate to be overly optimistic.
For the reasons given above, the trial court did not abuse its discretion when
it removed the public defender as defendant’s counsel of record, based on its
conclusion that the public defender would not bring defendant’s case to trial
within a reasonable time.
c) Attorney Driggs’s appointment
A trial court is required to appoint counsel for indigent capital defendants.
(§ 987, subd. (b); see People v. Jones (2004) 33 Cal.4th 234, 244 [an indigent
defendant does not have the right to select a court-appointed attorney].) “On
appeal, a trial court’s orders concerning the appointment of counsel for an indigent
defendant are reviewed for abuse of discretion. [Citations.] A court abuses its
discretion when it acts unreasonably under the circumstances of the particular
case. [Citation.]” (Cole, supra, 33 Cal.4th at pp. 1184-1185.)
Defendant first contends the trial court erred in appointing Attorney Driggs
because section 987.2, subdivision (d) requires a trial court to appoint the public
defender, unless the public defender is unavailable. Defendant argues the court
abused its discretion because the public defender was available. But, as in Cole,
supra, 33 Cal.4th 1158, the court here reasonably found that the public defender
was unavailable because she was unable to be ready for trial in a timely manner.
We have never held that section 987.2 trumps either a trial court’s discretion to
remove appointed counsel when necessary to prevent substantial impairment of
the trial proceedings or a trial court’s authority under section 987.05 to relieve
counsel who, without good cause, does not become ready for trial. We see no
reason to do so now.
Defendant contends the trial court’s appointment of Attorney Driggs created
a conflict of interest because Driggs (along with Attorney Grech) initially was
appointed only to give an opinion to the trial court regarding whether the public
defender’s office’s request for the continuance at issue here was reasonable. The
limited nature of the appointment, defendant argues, divided Driggs’s loyalty
between the court and defendant. Without citation of authority, defendant asserts
that Driggs was actually working for the court (in a limited capacity) when he was
first appointed to defendant’s case because the court ordered him to prepare a time
estimate within which to bring the case to trial. We disagree. In no way was
Driggs and Grech’s appointment “limited,” the court did not delegate its authority
to Driggs and Grech, and by giving a time estimate Driggs did not violate his duty
to defendant. The court specifically said, “When I appoint counsel for a
defendant, they aren’t working for me, they are working for the defendant.” The
court did not prevent Driggs from zealously advocating for defendant, nor did it
create a situation in which Driggs was simultaneously representing the interests of
the trial court and defendant.
Defendant further contends the process by which Attorney Driggs was
appointed created a conflict of interest. He cites People v. Barboza (1981)
29 Cal.3d 375, 379-381, in which we held that the terms of Madera County’s
contract with its public defender impermissibly created a financial incentive for
the public defender to ignore the existence of an actual or potential conflict of
interest in representing its clients. Defendant here asserts that Driggs was placed
in a similar situation because Driggs knew he would not be appointed unless he
provided a time estimate that was substantially less than that of the public
defender’s office. Therefore, defendant claims, Driggs had a financial incentive to
present a “low bid” to “win” appointment.
But unlike the public defender in Barboza, Driggs’s attempt here to secure
appointment as defendant’s counsel did not give Driggs a financial incentive to
ignore an existing conflict of interest, nor did it create a conflict of interest. (See
People v. Barboza, supra, 29 Cal.3d at p. 380 [noting public defender was
personally liable for any deficiencies in fund reserved for conflict counsel].) True,
Driggs had a financial incentive in securing and maintaining the appointment as a
means to create income for himself. But Driggs was not obligated to fulfill his
initial time estimate. If, after further research and investigation, Driggs had felt a
continuance was necessary to protect defendant’s interests, he could have moved
for one with no financial consequences, so long as the request was reasonable.
Driggs told the court that he would not take the case to trial if he was not fully
prepared, and that he would seek a continuance if needed. Notably, after Driggs’s
appointment, the defense did not request any more continuances, and defendant’s
case was tried during the time frame Driggs originally had estimated.
Defendant therefore has not shown that the trial court’s appointment of
Driggs created a conflict of interest.
2. Denial of Marsden motion
Defendant contends the trial court failed to conduct an adequate inquiry into
his complaints regarding Attorney Driggs’s representation of him after he moved
for substitute counsel under Marsden, supra, 2 Cal.3d 118. The court’s denial of
his motion, defendant argues, also violated his federal due process rights and his
expectation that the state would follow its own rules. (See Powell v. Alabama
(1932) 287 U.S. 45, 71; Hicks v. Oklahoma (1980) 447 U.S. 343, 346.)
Defendant voiced two complaints about Attorney Driggs to the trial court:
(1) that neither Driggs nor an investigator had come to discuss the case with him
in the seven weeks since the trial court’s appointment of Driggs; and (2) that
Driggs was working for the trial court, not him. At the June 3, 1996, hearing on
the Marsden motion, Driggs admitted the lack of communication with defendant,
other than when they were in court, since his appointment as counsel (52 days
prior to the Marsden hearing), and that he and the trial judge previously had been
employed in the district attorney’s office at the same time.
“In [Marsden], we held that a defendant is deprived of his constitutional right
to the effective assistance of counsel when a trial court denies his motion to
substitute one appointed counsel for another without giving him an opportunity to
state the reasons for his request. A defendant must make a sufficient showing that
denial of substitution would substantially impair his constitutional right to the
assistance of counsel [citation], whether because of his attorney’s incompetence or
lack of diligence [citations], or because of an irreconcilable conflict [citations]. We
require such proof because a defendant’s right to appointed counsel does not
include the right to demand appointment of more than one counsel, and because
the matter is generally within the discretion of the trial court. [Citation.]” (Ortiz,
supra, 51 Cal.3d at p. 980, fn. 1.) When reviewing whether the trial court abused
its discretion in denying a Marsden motion, we consider whether it made an
adequate inquiry into the defendant’s complaints. (People v. Smith (2003)
30 Cal.4th 581, 606.)
On appeal, defendant complains that the trial court never inquired how
Attorney Driggs had arrived at his trial preparation time estimate without ever
discussing the case with him. Defendant, however, never voiced that complaint,
instead faulting Driggs for not communicating with him. The trial court explained
to defendant that Driggs had been “devoting his time” to “coming up to speed” on
the case materials. Driggs acknowledged at the Marsden hearing that he had
conferred with defendant only during court appearances up until that point, but he
assured the court that once his representation of defendant was “set in earnest,”
there would “not be a great deal of conflict” about future communication. Driggs
explained he had not sent an investigator to meet with defendant because he had
not yet hired one due to “an economic factor,” but said that he would soon file a
motion under section 987.9 for funding for an investigator. At no point after this
Marsden motion did defendant again complain about a lack of communication by
Driggs, even after the trial court told defendant he could file another Marsden
motion if he still considered Driggs’s representation to be inadequate.
Defendant argues that had the trial court made an adequate inquiry, it would
have discovered an insurmountable conflict between defendant and Driggs, which
was so great that it resulted in a total lack of communication. (See People v.
Smith, supra, 30 Cal.4th at p. 606.) As evidence, he cites his complaints that “this
case [was] about money” and that Driggs was “working for the court,” not for
him. But defendant said nothing suggesting a total lack of communication caused
by a conflict; rather, he expressed concern that Driggs’s prior relationship with the
court and his preparation of a time estimate at the court’s request were indications
that Driggs was working for the court, not for him. The court responded
appropriately, acknowledging that he had previously worked in a supervisory
capacity in the district attorney’s office at the same time as Driggs’s employment
there, and he told defendant he perceived no conflict when Driggs or any other
former prosecutorial colleague appeared before him. No further inquiry by the
court was necessary.
Thus, “we find no basis for concluding that the trial court either failed to
conduct a proper Marsden inquiry or abused its discretion in declining to
substitute counsel.” (People v. Valdez (2004) 32 Cal.4th 73, 96.) Consequently,
defendant’s related constitutional claims also must fail.
Guilt Phase Issues
1. Admission of evidence of uncharged conduct during the guilt
At a pretrial conference, the prosecution asked the trial court to admit at trial
evidence of defendant’s May 1983 robbery of the Tastee Doughnut Shop.
According to the prosecutor’s offer of proof, the evidence would show that
defendant entered through the shop’s back door, saying he was looking for a
certain “girl.” After he was told she was not there, defendant went to the front of
the shop, ordered coffee and a doughnut, and played video games. Then, armed
with a knife, he jumped over the counter and robbed the cashier, Micaela Partida.
When the 67-year-old owner, Carl Shepard, emerged from the back, defendant
stabbed him, the blade penetrating Shepard’s left eye and emerging from the roof
of his mouth. Defendant then stabbed Shepard in the right arm. When police
questioned defendant about the robbery, he claimed he had spent the day of the
crime in a park and had spent the night with a woman. Defendant later pleaded
guilty to attempted murder, mayhem, robbery, and two counts of assault with a
deadly weapon, and was sentenced to 18 years in prison.
The evidence of the robbery, the prosecutor argued, was admissible because
it tended to show defendant’s attempt to commit a burglary in this case. The
prosecutor explained that in the Tastee Doughnut Shop robbery, defendant
distracted Partida by saying he was looking for a girl and by playing video games,
and that there was evidence here that defendant had employed a ruse to get into
Franklin’s house because there was no sign of forced entry and there was evidence
that defendant used the telephone while in her house. The prosecutor also asserted
that the stabbing of Shepard was probative of defendant’s intent to kill and torture
Franklin. Finally, the prosecutor contended that the robbery was admissible to
show a common plan or scheme, because in each offense defendant used a ruse to
commit the crime, spent a night at a relative’s house soon after committing the
crime, and denied culpability when questioned by the police.
The trial court ruled the prosecution could introduce evidence of the prior
Tastee Doughnut Shop robbery, but it excluded evidence of defendant’s prison
sentence, and it excluded photographs of Shepard’s injuries. The court allowed
defendant’s sister Cynthia Mungia to testify, over defendant’s objection, that he
said he would have to kill the victim if he ever committed “another” robbery.
Defendant renewed his objection to all of this evidence at trial.
The evidence introduced during the guilt phase of defendant’s trial was
somewhat different from the prosecutor’s pretrial offer of proof. No witnesses
testified during the guilt phase about the facts of the prior robbery. Instead,
Officer William Hill testified that he questioned defendant about the robbery and
that defendant denied committing the offense, claiming he had spent the day in a
park and then had met a woman and had spent the night with her. Hill also spoke
with defendant’s uncle, who said that defendant actually had spent the night at his
home. The prosecution also introduced defendant’s redacted guilty plea, in which
he admitted that he assaulted Partida and tried to murder Shepard by stabbing him
in the arm and ear with a knife.
Defendant contends the trial court erroneously denied his pretrial and
midtrial motions to exclude evidence of prior conduct under Evidence Code
sections 352 and 1101’s subdivision (a). The admission of this evidence,
defendant argues, violated his right to due process.
With certain exceptions not relevant here, “evidence of a person’s character
or a trait of his or her character (whether in the form of an opinion, evidence of
reputation, or evidence of specific instances of his or her conduct) is inadmissible
when offered to prove his or her conduct on a specified occasion.” (Evid. Code,
§ 1101, subd. (a).) Evidence Code section 1101’s subdivision (b) clarifies this
general rule: “Nothing in this section prohibits the admission of evidence that a
person committed a crime, civil wrong, or other act when relevant to prove some
fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake or accident, or whether a defendant in a prosecution for an
unlawful sexual act or attempted unlawful sexual act did not reasonably and in
good faith believe that the victim consented) other than his or her disposition to
commit such an act.”
In addition to the trial court’s power to exclude evidence under section 1101
of the Evidence Code, section 352 of that code allows the trial court to “exclude
evidence if its probative value is substantially outweighed by the probability that
its admission will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or of misleading the
jury.” Rulings made under these sections are reviewed for an abuse of discretion.
(People v. Harrison (2005) 35 Cal.4th 208, 230.)
Defendant argues that the trial court abused its discretion in admitting
evidence of the prior robbery of the Tastee Doughnut Shop as evidence of his
intent to kill and rob Franklin and to burglarize her house because these intents
were not disputed issues at trial (but see People v. Carpenter (1997) 15 Cal.4th
312, 379 [not guilty plea places all elements of the offense at issue]), and that the
prior robbery was not sufficiently similar to the burglary, robbery, and murder of
Franklin to be probative. He further contends that his use of a false alibi in both
the prior Tastee Doughnut Shop robbery and in Franklin’s murder did not make
the two cases sufficiently similar to allow admission of the prior robbery on the
theory that he used a common course or scheme in giving the two alibis. Finally,
defendant asserts that the prejudicial effect of the prior robbery, which included
evidence that he stabbed Shepard in the eye, was so great that it substantially
outweighed any probative value that the prior robbery might have had at the trial
for Franklin’s murder.
The Attorney General argues that the trial court properly admitted evidence
of the prior Tastee Doughnut Shop robbery because even if the crime itself was
not similar to Franklin’s murder, there were significant similarities in defendant’s
behavior before and after both of these crimes. Before both the prior Tastee
Doughnut Shop robbery and Franklin’s murder, the Attorney General asserts,
defendant used a diversion: At the doughnut store he played video games before
the robbery, and Franklin’s telephone records at the time of murder suggest he
gained entry to her house by asking to use her telephone.7 The Attorney General
also points out that in both cases defendant stayed with a relative after the crime,
and that he used somewhat similar alibis for both crimes: He claimed to have
been in a park on the day of the prior Tastee Doughnut Shop robbery, and he
claimed to have been at home during Franklin’s murder and then in a park the next
We need not decide whether the trial court erred in admitting evidence of the
prior Tastee Doughnut Shop robbery because any error was harmless. In this case,
defendant was seen speaking to Franklin shortly before the murder, and he was
seen driving Franklin’s car away from the scene of the crime. After Franklin’s
Although the prosecution mentioned in its offer of proof that defendant
played video games in the Tastee Doughnut Shop as a diversion, it did not present
evidence of that diversion at the guilt phase of trial.
murder, defendant’s fingerprints were found on her car, which was abandoned
near the home of his relatives in Santa Ana. Around the time of her murder, a
telephone call was made from Franklin’s telephone to these same relatives in
Santa Ana. Shortly after Franklin’s murder, the police observed scratches on
defendant’s body, and genetic tissue under Franklin’s fingernails that was
recovered after her murder was consistent with defendant’s DNA. When the
police questioned defendant about Franklin’s murder, he falsely told them he was
in his trailer that night, that he had never been in Franklin’s house and never
touched her car, and that he did not know anyone in Santa Ana.
In short, the evidence of defendant’s guilt was overwhelming. As a result,
any error in admitting evidence of the prior Tastee Doughnut Shop robbery during
the guilt phase did not prejudice defendant.
2. Instruction on uncharged conduct (CALJIC No. 2.50)
When orally instructing the jury with the 1994 revision of CALJIC No. 2.50,
the trial court omitted a portion of the standard instruction, italicized below:
“Evidence has been introduced for the purpose of showing that the defendant
committed crimes other than that for which he is on trial. [¶] Such evidence, if
believed, was not received and may not be considered by you to prove that
defendant is a person of bad character or that he has a disposition to commit
crimes. [¶] Such evidence was received and may be considered by you only for
the limited purpose of determining if it tends to show: [¶] A characteristic
method, plan or scheme in the commission of criminal acts similar to the method,
plan or scheme used in the commission of the offense in this case which would
further tend to show the existence of the intent which is a necessary element of the
crime charged. [¶] The existence of the intent which is a necessary element of the
crime charged. [¶] For the limited purpose for which you may consider such
evidence you must weigh it in the same manner as you do all other evidence in the
case. [¶] You are not permitted to consider such evidence for any other purpose.”
The written instructions did contain a complete version of CALJIC No. 2.50.
Defendant contends the incomplete instruction allowed the jury to consider
the uncharged conduct (the prior Tastee Doughnut Shop robbery) as evidence of
his intent during the charged conduct in this case (Franklin’s robbery, burglary,
and murder) without first determining whether the charged and uncharged conduct
were similar, and thus to infer improperly from the prior robbery that he was
predisposed to criminally violent behavior. Defendant claims the instruction
violated his rights under state law and the Sixth, Eighth, and Fourteenth
Amendments to the United States Constitution, as well as sections 7 and 15
through 17 of article I of the California Constitution.
Defendant does not argue that the written instructions were incorrect, and he
acknowledges we often have held that when erroneous oral instructions are
supplemented by correct written ones, we assume the jury followed the written
instructions, particularly when, as here, the jury is instructed that the written
version is controlling. (See, e.g., People v. Osband (1996) 13 Cal.4th 622, 687-
688.) Defendant insists that these cases were wrongly decided. He does not
persuade us that we should reconsider the matter.
Defendant asserts there was no evidence that the jury actually received the
written instructions. We disagree. Although the record does not explicitly state
that the jury received the written instructions, it does show that the trial court
twice orally instructed the jury it would receive written instructions. (See CALJIC
No. 17.45.) If the jury had not received the written instructions, we presume it
would have told the court so. We therefore conclude that the jury was given the
Even if the jury never received a written version of CALJIC No. 2.50, the
trial court’s omission of the phrase “in the commission of criminal acts similar to
the method, plan or scheme” during the oral instructions was harmless under any
standard. Just before Officer William Hill testified about the prior robbery at the
Tastee Doughnut Shop, the trial court gave a limiting instruction to the jury about
uncharged acts. The instruction mirrored the language of CALJIC No. 2.50 and
included the phase “in the commission of criminal acts similar to the method, plan
or scheme,” which the court omitted from the oral closing instructions. Moreover,
Attorney Driggs specifically argued there was no plan or scheme common to both
the charged and uncharged conduct, while the prosecutor highlighted the
similarities of both. In addition, the court repeatedly told the jury not to use the
uncharged conduct as propensity evidence, giving this instruction during voir dire,
just before Officer Hill’s testimony, and as part of the oral closing instructions.
Both the prosecutor and defense counsel during closing arguments stressed that
the prior robbery could only be used as evidence of defendant’s intent during the
burglary, robbery, and murder of Franklin, or as evidence of a common plan or
scheme. In light of the totality of the court’s instructions and counsel’s explicit
arguments regarding the similarity, or lack thereof, of the charged and uncharged
conduct, it may reasonably be inferred that the jury understood it was first
required to find that the charged and uncharged offenses were similar before it
could consider the relevance, if any, of the uncharged conduct.
Finally, the court’s omission of a portion of CALJIC No. 2.50 did not
prejudice defendant because the instruction applied only to evidence of the prior
robbery at the Tastee Doughnut Shop, and we have held already there was no
prejudice in admitting evidence of the prior robbery. For the same reasons,
defendant suffered no prejudice from the trial court’s omission of a portion of
CALJIC No. 2.50 during the oral closing instructions.
3. Instruction on admissions (CALJIC No. 2.71)
Both parties initially asked the trial court to instruct the jury with CALJIC
No. 2.71, which warns the jury to view a defendant’s admissions with caution.
But after some discussion, both parties withdrew their requests for the instruction.
Nonetheless, defendant argues that, by not instructing the jury with CALJIC
No. 2.71, the trial court violated his rights under the Sixth, Eighth, and Fourteenth
Amendments to the United States Constitution, as well as sections 7 and 15
through 17 of article I of the California Constitution.
CALJIC No. 2.71 reads: “An admission is a statement made by [a] [the]
defendant which does not by itself acknowledge [his] [her] guilt of the crime[s] for
which the defendant is on trial, but which statement tends to prove [his] [her] guilt
when considered with the rest of the evidence. [¶] You are the exclusive judges
as to whether the defendant made an admission, and if so, whether that statement
is true in whole or in part. [¶] [Evidence of an oral admission of [a] [the]
defendant not made in court should be viewed with caution.]” “When evidence is
admitted establishing that the defendant made oral admissions, the trial court
ordinarily has a sua sponte duty to instruct the jury that such evidence must be
viewed with caution. [Citation.]” (People v. Slaughter (2002) 27 Cal.4th 1187,
Defendant asserts that his statements to Detective Gary DeVinna that the
scratches on his chest were itch scratches, that he was in his trailer the night
Franklin was killed and spent the next day performing various tasks, that he did
not know anyone in Santa Ana and had not been there in the months before
Franklin’s death, that on previous visits to Santa Ana he normally caught a bus
near where Franklin’s car was found, and that he never entered Franklin’s house
or touched her car were admissions that warranted a jury instruction. The
Attorney General concedes the trial court erred in failing to instruct the jury with
CALJIC No. 2.71. We agree.
Defendant contends that the trial court’s instructional error violated his
federal constitutional rights, and that reversal is required unless the error was
harmless beyond a reasonable doubt. (See Chapman v. California (1967)
386 U.S. 18, 24.) The Attorney General argues, however, that the error requires
reversal only if it is reasonably probable that the error had an effect on the verdict.
(See People v. Watson (1956) 46 Cal.2d 818, 836.) We need not decide which
standard to apply because the error was not prejudicial under either standard. The
purpose of CALJIC No. 2.71 is to help the jury determine whether the statements
(in this case, defendant’s statements to Detective DeVinna) were ever made.
(People v. Livaditis (1992) 2 Cal.4th 759, 784.) Defendant did not cross-examine
DeVinna about his statements, nor is there any evidence that would cast doubt on
the detective’s testimony about the statements. There is simply no dispute as to
whether defendant made these statements, or whether DeVinna accurately recalled
Defendant also argues that his signed statement on the redacted guilty plea
form admitting that he committed the prior Tastee Doughnut Shop robbery was an
admission, which permitted the jury to infer that because his alibi in that case was
false, his alibi in this case also must be false. Defendant does not cite any
authority for the proposition that juries must be instructed to view with caution
admissions made as part of a plea bargain stemming from uncharged conduct.
Even if we assume such an instruction is necessary, there was, for the reasons
stated above, no prejudice because defendant never disputed that he signed the
4. Instruction on willfully false statements (CALJIC No. 2.03)
Defendant contends the trial court erred in instructing the jury that it could
consider, as evidence of his guilt, any willfully false statements that he had made.
CALJIC No. 2.03, as read by the trial court, states: “If you find that before this
trial the defendant made a willfully false or deliberately misleading statement
concerning the crime for which he is now being tried, you may consider such
statement as a circumstance tending to prove a consciousness of guilt. However,
such conduct is not sufficient by itself to prove guilt, and its weight and
significance, if any, are matters for your determination.”
Here, the prosecution introduced evidence that defendant made willfully false
statements to Detective Gary DeVinna that he spent the night of April 12, 1994, in
his trailer and that he spent the following day looking for a job and at the park.
Defendant argues that when the trial court gave CALJIC No. 2.03, it inaccurately
instructed on the inferences the jury could properly draw from these statements,
thereby violating his rights under the Sixth, Eighth, and Fourteenth Amendments
to the United States Constitution, as well as sections 7 and 15 through 17 of article
I of the California Constitution.
According to defendant, CALJIC No. 2.03 creates a permissive presumption,
and instructions creating such presumptions are constitutional only if there is a
rational connection between the facts found by the jury and those implied by the
instruction. (See Ulster County Court v. Allen (1979) 442 U.S. 140, 156-157.)
Here, defendant claims, the instruction allowed the jury to infer from his false
statements that he killed Franklin with premeditation, or that he killed her in the
course of a burglary or robbery. These inferences, he asserts, are irrational. We
consistently have rejected similar claims. (See, e.g., People v. Geier (2007)
41 Cal.4th 555, 589; People v. Griffin (1988) 46 Cal.3d 1011, 1027; People v.
Crandell (1988) 46 Cal.3d 833, 871.)
5. Sufficiency of the evidence for the torture-murder special-
Defendant contends the evidence presented at trial was insufficient to support
the jury’s torture-murder special-circumstance finding. We agree.
First degree murder is punishable by death if the murder “was intentional and
involved the infliction of torture.” (§ 190.2, subd. (a)(18).) The torture-murder
special circumstance requires proof that a defendant intentionally performed acts
that were calculated to cause extreme physical pain to the victim. (Cole, supra, 33
Cal.4th at p. 1228.) Required is “an intent to cause cruel or extreme pain and
suffering for the purpose of revenge, extortion, persuasion, or for any other
sadistic purpose.” (People v. Elliot (2005) 37 Cal.4th 453, 479, fn. omitted
(Elliot).) We review the entire record, in the light most favorable to the
prosecution, to determine whether a rational trier of fact could have found the
essential elements of the torture-murder special-circumstance allegation beyond a
reasonable doubt. (See Jackson v. Virginia (1979) 443 U.S. 307, 319; People
v. Osband, supra, 13 Cal.4th at p. 690 [test for sufficiency of a special
circumstance finding is the same as that for a criminal conviction].)
Here, there is ample evidence that when defendant battered Franklin to death
with a blunt object, he caused her to experience great pain and suffering: The
pathologist, Dr. Garber, testified that Franklin’s injuries were “extremely painful.”
Defendant argues, however, that there is no evidence that he acted with an intent
to torture; that is, “for the purpose of revenge, extortion, persuasion, or for any
other sadistic purpose.” (Elliot, supra, 37 Cal.4th at p. 479.) The Attorney
General does not contend that defendant was motivated by revenge, extortion, or
persuasion, but he asserts that the jury reasonably could have found that defendant
committed the murder “with a ‘sadistic intent to cause the victim to suffer pain in
addition to the pain of death.’ [Citation.]” (People v. Bemore (2000) 22 Cal.4th
809, 841 (Bemore).) We are not persuaded.
The intent to torture “is a state of mind which, unless established by the
defendant’s own statements (or by another witness’s description of a defendant’s
behavior in committing the offenses), must be proved by the circumstances
surrounding the commission of the offense [citations], which include the nature
and severity of the victim’s wounds.” (People v. Crittenden (1994) 9 Cal.4th 83,
141, italics added (Crittenden).) “We have, however, cautioned against giving
undue weight to the severity of the wounds” (People v. Chatman (2006)
38 Cal.4th 344, 390 (Chatman)); severe injuries may also be consistent with the
desire to kill, the heat of passion, or an explosion of violence.
Here, the prosecution introduced statements by defendant that were probative
of his intent when he murdered Franklin: Defendant’s sister, Cynthia, testified
that before the murder, defendant had told her “on a constant basis” that if he ever
committed another robbery, he would have to kill the victim to avoid being
identified. This is strong evidence that defendant entered Franklin’s house
intending to kill her, but it is not evidence from which a rational trier of fact could
infer that he beat Franklin to death for a sadistic purpose. Rather, defendant’s
statements to his sister suggest that he killed Franklin to ensure that she would not
survive to identify him as the person who had robbed her.
Nor do the circumstances of the offense or the nature of the wounds provide
evidence from which a rational trier of fact could infer an intent to torture.
Defendant killed Franklin by hitting her repeatedly in the head with a blunt object.
Franklin also sustained defensive wounds to her hands, as well as minor wounds
to her arms and shoulders. The killing was brutal and savage, but there is nothing
in the nature of the injuries to suggest that defendant inflicted any of them in an
attempt to torture Franklin rather than to kill her.
The Attorney General is unable to point to any other case in which we
have upheld a jury’s torture-murder special-circumstance finding based on facts
comparable to the evidence presented here. When we have upheld such
findings, the evidence has shown that the defendant deliberately inflicted
nonfatal wounds or deliberately exposed the victim to prolonged suffering.
(See People v. Whisenhunt (2008) 44 Cal.4th 174, 201 [defendant
“methodically poured” hot oil on multiple portions of the victim’s body];
Chatman, supra, 38 Cal.4th at p. 390 [the defendant inflicted over 50 stab
wounds all over the victim’s body, and later told a friend he persisted in
stabbing the victim because it “felt good”]; Elliot, supra, 37 Cal.4th at p. 467
[the defendant inflicted 81 stab wounds, only three of which were potentially
fatal, and meticulously split the victim’s eyelids with a knife]; Cole, supra, 33
Cal.4th at pp. 1212-1214, 1229-1230 [defendant made statements indicating he
was angry at the victim, poured gasoline over her body, and set it alight];
Bemore, supra, 22 Cal.4th at p. 842 [defendant inflicted eight unusual nonfatal
wounds in the victim’s flank before stabbing him to death and made statements
implying that he inflicted those wounds in an effort to persuade the victim to
open a safe]; Crittenden, supra, 9 Cal.4th at p. 141 [the defendant broke one
victim’s jaw before killing him and inflicted “fairly superficial cuts that clearly
were not intended to be lethal” in an attempt to persuade another victim to write
a check payable to the defendant]; People v. Proctor (1992) 4 Cal.4th 499, 531
[the defendant severely beat the victim and inflicted a series of nonfatal
“incision-type stab wounds to her neck, chest, and breast area” before strangling
her]; People v. Pensinger (1991) 52 Cal.3d 1210, 1240 [the defendant made
incisions with “a nearly scientific air” that demonstrated a calculated intent to
inflict pain]; see also People v. Cook (2006) 39 Cal.4th 566, 602-603 [evidence
sufficient to show first degree torture-murder where the defendant kicked and
beat the victim with a stick for a long period while he lay unresisting in the
street]; People v. Raley (1992) 2 Cal.4th 870, 889 [evidence sufficient to show
first degree torture-murder where the defendant inflicted 41 knife wounds on
the victim while she screamed, wrapped her in rugs and left her (still conscious)
in the trunk of his car for hours before throwing her down a ravine; he inflicted
similar injuries on the victim’s friend, who miraculously survived].)
Here, unlike the cases described above, there is no evidence that defendant
deliberately inflicted nonfatal wounds to the victim in an attempt to increase her
suffering. Nor is there evidence that defendant was angry at the victim or that he
had any motive to inflict “ ‘pain in addition to the pain of death.’ ” (Bemore,
supra, 22 Cal.4th at p. 841.)
As evidence of defendant’s sadistic intent, the Attorney General points out
that defendant tightly bound Franklin’s hands and feet. We agree with the
Attorney General that “[b]inding may take place in some instances of torture”
(Chatman, supra, 38 Cal.4th at p. 391), and in several cases we have noted that the
defendant bound the victim when summarizing the evidence supporting a jury’s
torture-murder special-circumstance finding (Bemore, supra, 22 Cal.4th at p. 842;
Crittenden, supra, 9 Cal.4th at p. 141; People v. Proctor, supra, 4 Cal.4th at p.
530), but in each of those cases the evidence of binding was accompanied by other
strong evidence of the defendant’s sadistic intent. We have never found that
evidence that the defendant bound the victim is, by itself, substantial evidence of
an intent to inflict sadistic pain. Here, defendant bound the victim in the course of
robbing her; it is not uncommon for robbers to bind their victims to prevent them
from resisting or escaping.
In short, the record does not contain “substantial evidence — that is,
evidence that is reasonable, credible, and of solid value” (Cole, supra, 33 Cal.4th
at p. 1212) from which the jury could find that defendant intended to torture
Franklin. We therefore vacate the torture-murder special-circumstance finding.
Defendant claims that our reversal of the torture-murder special circumstance
requires reversal of the judgment of death. We find the error harmless under any
standard. The jury properly considered two other valid special circumstance
findings (murder in the commission of a burglary and robbery), all of the facts and
circumstances underlying Franklin’s murder, and defendant’s lengthy criminal
record. There is no likelihood that the jury’s consideration of the mere existence
of the torture-murder special circumstance tipped the balance toward death. We
have frequently rejected similar contentions. (See, e.g., People v. Lewis (2008) 43
Cal.4th 415, 520-523; People v. Morgan (2007) 42 Cal.4th 593, 628; People
v. Halvorson (2007) 42 Cal.4th 379, 422; see also Brown v. Sanders (2006) 546
U.S. 212, 221-225.)
C. Penalty and Posttrial Issues
1. Automatic application to modify the verdict
Defendant contends the trial court erred under state law when, in denying his
automatic application for modification of the death verdict, it failed to state any
reasons for denying the application. He contends the error also violated the due
process guarantees of the Eighth and Fourteenth Amendments to the United States
Under section 190.4, subdivision (e), in every case in which there is a death
verdict, the defendant is deemed to have made an application for modification of
the verdict. In ruling on the application, the trial court reweighs the evidence,
considers the aggravating and mitigating circumstances, and determines whether,
in its independent judgment, the weight of the evidence supports the jury’s verdict.
(See People v. Burgener (2003) 29 Cal.4th 833, 891; People v. Rodriguez (1986)
42 Cal.3d 730, 793.) The court must state on the record the reasons for its
findings. (§ 190.4, subd. (e).) The ruling on an automatic application to modify
the death verdict must be “sufficiently articulated to assure meaningful appellate
review.” (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1064 (Lewis and
The entirety of defendant’s application and the trial court’s denial was as
“THE COURT: Is there going to be a formal motion to modify the judgment
or make it orally?
“MR. DRIGGS: Yes — well, orally.
“THE COURT: Okay. You want to do so, go right ahead.
“MR. DRIGGS: Yes, Your Honor. [¶] On behalf of [defendant], we make
an oral motion to the Court to modify the sentence that the jury returned of death
to the sentence of life without parole. [¶] The argument of that is merely that the
evidence as to, shall we say, lingering doubt and Klinefelter’s is such that the
appropriate punishment should be life without parole. Submit.
“THE COURT: People.
“[PROSECUTOR]: I submit on my Points and Authorities, unless the Court
wishes to heard further.
“THE COURT: I don’t. And I am denying the motion to modify the
By not stating its reasons for denying the modification motion, the trial court
did not comply with section 190.4’s subdivision (e), and the Attorney General
does not dispute the error. He contends, however, that defendant has forfeited this
issue because of his failure to object in the trial court. We agree. If a defendant
fails to make a specific objection to the court’s ruling at the modification hearing,
the claim is forfeited. (See People v. Riel (2000) 22 Cal.4th 1153, 1220.) This
rule applies only to cases in which the modification hearing was conducted after
the finality of this court’s decision in People v. Hill (1992) 3 Cal.4th 959, 1013.
(Riel, supra, 22 Cal.4th at p. 1220.) As defendant’s modification hearing was held
post-Hill, the forfeiture rule applies here.
Defendant insists that the forfeiture rule is inapplicable here because it has
only been applied when the trial court stated reasons for denying the modification
motion, thereby creating a record adequate to review its ruling, but the defendant
failed to object to the trial court’s consideration of inadmissible or irrelevant
evidence. (See, e.g., People v. Tafoya (2007) 42 Cal.4th 147, 196; People v.
Zambrano (2007) 41 Cal.4th 1082, 1183; Lewis and Oliver, supra, 39 Cal.4th at
p. 1064; People v. Martinez (2003) 31 Cal.4th 673, 701.) Those cases, defendant
argues, are distinguishable because “this Court had before it a record that made
clear the trial judge’s understanding of his duties . . . .” Here, he contends, “the
record does not show the judge’s understanding of his duty and authority . . . .”
For forfeiture purposes, we see no significant difference between a court that
states reasons for denying the modification motion and one that does not (as in this
case): In either event, the defendant must bring any deficiency in the ruling to the
trial court’s attention by a contemporaneous objection, to give the court an
opportunity to correct the error.
Pertinent here is People v. Horning (2004) 34 Cal.4th 871 (Horning). There,
after a penalty phase bench trial, the trial court rendered a death verdict and gave
its reasons for doing so. The court also explained its reasoning when it denied the
defendant’s motion for a new trial. (Id. at p. 911.) The question then arose
whether the defendant was entitled to a modification hearing. The defendant
agreed it was not necessary for the court to repeat its prior reasons, so the court
imposed a death sentence. (Id. at p. 912.) On appeal, the defendant claimed the
court erred by never ruling on his automatic application to modify his sentence.
We held that “[b]ecause defendant did not object [in the trial court], and the
hearing occurred after our decision in People v. Hill [, supra,] 3 Cal.4th 959, the
issue is not cognizable on appeal. [Citation.]” (Ibid.)
Defendant argues Horning, supra, 34 Cal.4th 871, is distinguishable because,
unlike this case, the trial court there understood its obligation to state reasons for
denying the defendant’s application for modification of the death verdict. But a
court’s understanding of its obligation to comply with section 190.4, subdivision
(e) is not relevant to whether the defendant has forfeited the issue by failing to
object. Thus, just as the defendant in Horning forfeited his claim that the trial
court failed to rule upon the automatic application, defendant here forfeited his
claim that the trial court failed to state its reasons for denying the application.
2. Constitutionality of the death penalty
Defendant contends his death sentence violated various guarantees under the
Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, as
well as sections 7 and 15 through 17 of article I of the California Constitution. As
we have in other cases, we reject defendant’s contentions. Specifically:
Section 190.3, factor (a) does not violate the Eighth Amendment. (Tuilaepa
v. California (1994) 512 U.S. 967, 975-976.) Factor (a) is not overbroad, nor does
it allow for arbitrary and capricious imposition of the death penalty. (See, e.g.,
People v. Williams (2008) 43 Cal.4th 584, 648.)
The prosecution is not constitutionally required to prove (either beyond a
reasonable doubt or by a preponderance of the evidence) either the existence or
greater weight of aggravating circumstances. (See, e.g., People v. Thornton
(2007) 41 Cal.4th 391, 468.) Contrary to defendant’s contention, neither Apprendi
v. New Jersey (2000) 530 U.S. 466 (Apprendi) nor Blakely v. Washington (2004)
542 U.S. 296 (Blakely) affected these conclusions. (See, e.g., People v. Barnwell
(2007) 41 Cal.4th 1038, 1059; Lewis and Oliver, supra, 39 Cal.4th at p. 1068.)
The trial court need not instruct on a presumption of life during the penalty
phase. (See, e.g., People v. Zamudio (2008) 43 Cal.4th 327, 373.)
The federal Constitution does not require the jury to agree unanimously on
which aggravating circumstances exist. (See, e.g., People v. Valencia (2008)
43 Cal.4th 268, 311.) Contrary to defendant’s contention, neither Apprendi,
supra, 530 U.S. 466, Blakely, supra, 542 U.S. 296, nor Ring v. Arizona (2002) 536
U.S. 584, has affected this conclusion. (See, e.g., People v. Hoyos (2007)
41 Cal.4th 872, 926; Lewis and Oliver, supra, 39 Cal.4th at p. 1068.)
The federal Constitution does not require written jury findings during the
penalty phase, and the lack of such findings does not deprive a capital defendant
of meaningful appellate review. (See, e.g., People v. Tafoya, supra, 42 Cal.4th at
Intercase proportionality review is not constitutionally required. (See, e.g.,
People v. Richardson (2008) 43 Cal.4th 959, 1034.)
Equal protection does not require that capital defendants be afforded the
same sentence review afforded other felons sentenced under the determinate
sentencing law. (See, e.g., People v. Watson (2008) 43 Cal.4th 652, 703-704.)
3. Application of international law to the death penalty
Defendant contends California’s death penalty scheme violates the Eighth
and Fourteenth Amendments to the United States Constitution by violating
international law and norms of humanity and decency.
Article VI, section 1, of the International Covenant on Civil and Political
Rights (hereafter ICCPR) prohibits the arbitrary deprivation of life, while Article
VII prohibits “cruel, inhuman or degrading treatment or punishment.” The United
States is a signatory to the ICCPR. (People v. Brown (2004) 33 Cal.4th 382, 403.)
The parties disagree on whether defendant has standing to challenge the
death penalty under the ICCPR. (Compare United States v. Duarte-Acero (11th
Cir. 2000) 208 F.3d 1282, 1286 [individuals have standing], with Beazley v.
Johnson (5th Cir. 2001) 242 F.3d 248, 267-268 [individuals lack standing].) As
we have done in the past, we assume without deciding that defendant has standing
(see, e.g., People v. Prince (2007) 40 Cal.4th 1179, 1299; People v. Ramirez
(2006) 39 Cal.4th 398, 479; People v. Cornwell (2005) 37 Cal.4th 50, 106), but
we deny his claim on the merits. “The [ICCPR] . . . specifically permits the use of
the death penalty if ‘imposed only for the most serious crimes in accordance with
the law in force at the time of the commission of the crime.’ [Citations.]) And
when the United States ratified the treaty, it specially reserved the right to impose
the death penalty on any person, except a pregnant woman, duly convicted under
laws permitting the imposition of capital punishment. [Citations.]” (People v.
Perry (2006) 38 Cal.4th 302, 322.) Because the trial court here imposed
defendant’s sentence in accordance with the applicable law, his capital sentence
does not violate the ICCPR.
California’s status as being in the minority of jurisdictions worldwide that
impose capital punishment, especially in contrast with the nations of Western
Europe, does not violate the Eighth Amendment. (See, e.g., People v. Moon
(2005) 37 Cal.4th 1, 47-48.)
We therefore conclude California’s death penalty scheme does not violate
international law or norms of humanity and decency.
4. Cumulative error
Defendant contends that the cumulative effect of the guilt and penalty phase
errors requires reversal of his conviction and death verdict even if no single error
compels reversal. Whether considered separately or together, any errors or
assumed errors had no effect on the judgment.
The torture-murder special-circumstance finding is vacated. The remainder
of the judgment, including the sentence of death, is affirmed.
GEORGE, C. J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Mungia
Original Appeal XXX
Opinion No. S060803
Date Filed: August 14, 2008
Judge: J. Thompson Hanks
Attorneys for Appellant:
Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and Jeffrey Gale,
Deputy State Public Defender, for Defendant and Appellant.
Attorneys for Respondent:
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney
General, Gary W. Schons, Assistant Attorney General, William M. Wood and Lise Jacobson, Deputy
Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Deputy State Public Defender
801 K Street, Suite 1100
Sacramento, CA 95814
Deputy Attorney General
110 West “A” Street, Suite 1100
San Diego, CA 92101
Automatic appeal from a judgment of death.
|Date:||Citation:||Docket Number:||Category:||Status:||Cross Referenced Cases:|
|Thu, 08/14/2008||44 Cal. 4th 1101, 189 P.3d 880, 81 Cal. Rptr. 3d 614||S060803||Automatic Appeal||closed; remittitur issued|| |
MUNGIA (JOHN) ON H.C. (S166477)
|1||The People (Respondent)|
Represented by Attorney General - San Diego Office
Lise Jacobson, Deputy Attorney General
P.O. Box 85266
San Diego, CA
|2||Mungia, John (Appellant)|
San Quentin State Prison
Represented by Jeffrey J. Gale
Attorney at Law
5714 Folsom Blvd., No. 212
|3||Mungia, John (Appellant)|
San Quentin State Prison
Represented by Habeas Corpus Resource Center
303 Second Street, Suite 400 South
San Francisco, CA
|Aug 14 2008||Opinion: Affirmed as modified|
|Apr 7 1997||Judgment of death|
|Apr 24 1997||Filed certified copy of Judgment of Death Rendered|
|Apr 24 1997||Penal Code sections 190.6 et seq. apply to this case|
|Jul 30 1997||Record certified for completeness|
|Jul 30 2001||Order appointing State Public Defender filed|
to represent applt for the direct appeal.
|Aug 15 2001||Date trial court delivered record to appellant's counsel|
3,410 pp. record (see Calif. Rules of Court, rule 39.50(c); the date of delivery is the date of mailing plus five days.
|Aug 15 2001||Received:|
notice from superior court of transmittal of 3,410-page record to appellant's counsel on 8-10-2001.
|Aug 16 2001||Appellant's opening brief letter sent, due:|
3-13-2002. (see rule 39.57(b))
|Aug 28 2001||Received:|
Suppl. notice from superior court, dated 8/16/2001, advising that 5 ascii disks were transmitted to applt.'s counsel on that date.
|Sep 28 2001||Counsel's status report received (confidential)|
from State P.D.
|Nov 27 2001||Counsel's status report received (confidential)|
from State P.D.
|Dec 21 2001||Received copy of appellant's record correction motion|
appellant's "request for correction of record, application for settled statements, application for additional records, and request for documentary exhibits." (52 pp.)
|Jan 28 2002||Counsel's status report received (confidential)|
from State P.D.
|Feb 28 2002||Request for extension of time filed|
To file AOB. (1st request)
|Mar 1 2002||Extension of time granted|
To 5/13/2002 to file AOB.
|Mar 29 2002||Counsel's status report received (confidential)|
from State P.D.
|May 9 2002||Request for extension of time filed|
To file AOB. (2nd request)
|May 16 2002||Filed:|
Suppl. declaration in support of application for extension of time to file AOB.
|May 20 2002||Extension of time granted|
To 7/12/2002 to file AOB. The court anticipates that after that date, only four further extensions totailng 240 additional days will be granted. Counsel is ordered to take all steps necessary to meet this schedule.
|May 28 2002||Counsel's status report received (confidential)|
from State P.D.
|Jul 8 2002||Request for extension of time filed|
To file AOB. (3rd request)
|Jul 12 2002||Extension of time granted|
To 9/10/2002 to file AOB. The court anticipates that after that date, only three further extensions totaling 180 additional days will be granted. Counsel is ordered to take all steps necessary to meet this schedule.
|Jul 25 2002||Counsel's status report received (confidential)|
from State P.D.
|Sep 10 2002||Request for extension of time filed|
To file appellant's opening brief. (4th request)
|Sep 12 2002||Extension of time granted|
To 11/12/2002 to file appellant's opening brief. The court anticipates that after that date, only two further extensions totaling 120 additional days will be granted. Counsel is ordered to take all steps necessary to meet this schedule.
|Sep 23 2002||Counsel's status report received (confidential)|
from State P.D.
|Nov 12 2002||Request for extension of time filed|
To file appellant's opening brief. (5th request)
|Nov 13 2002||Extension of time granted|
To 1/13/2003 to file appellant's opening brief. The court anticiaptes that after that date, only one further extension totaling 30 additional days will be granted. Counsel is ordered to take all steps necessary to meet this schedule.
|Nov 26 2002||Counsel's status report received (confidential)|
from State P.D.
|Jan 3 2003||Request for extension of time filed|
to file appellant's opening brief. (6th request)
|Jan 3 2003||Counsel's status report received (confidential)|
from State P.D.
|Jan 8 2003||Extension of time granted|
To 3/14/2003 to file appellant's opening brief. After that date, only two further extensions totaling about 120 additional days will be granted. Extension is granted based upon Supervising Deputy State Public Defender Jeffrey S. Gale's representation that he anticiaptes filing that brief by 7/15/2003.
|Mar 5 2003||Counsel's status report received (confidential)|
from State P.D.
|Mar 6 2003||Request for extension of time filed|
to file appellant's opening brief. (7th request)
|Mar 10 2003||Extension of time granted|
to 5/13/2003 to file appellant's opening brief. After that date, only one further extension totaling 60 additional days will be granted. Extensionis granted based upon Deputy State Public Defender Jeffrey J. Gale's representation that he anticipates filing that breif by 7/12/2003.
|May 12 2003||Counsel's status report received (confidential)|
from State P.D.
|May 12 2003||Request for extension of time filed|
to file appellant's opening brief. (8th request)
|May 14 2003||Extension of time granted|
to 7/14/2003 to file appellant's opening brief. The court anticipates that after that date, only two further extensions totaling 120 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
|Jun 30 2003||Counsel's status report received (confidential)|
from State P.D.
|Jul 10 2003||Request for extension of time filed|
to file AOB. (9th request)
|Jul 16 2003||Extension of time granted|
to 9-12-2003 to file AOB. The court anticipates that after that date, only one further extension totaling about 60 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
|Aug 28 2003||Counsel's status report received (confidential)|
from State P.D.
|Sep 10 2003||Request for extension of time filed|
to file appellant's opening brief. (10th request)
|Sep 12 2003||Extension of time granted|
to 11/12/2003 to file appellant's opening brief. The court anticipates that after that date, only two further extensions totaling 90 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
|Nov 5 2003||Counsel's status report received (confidential)|
from State P.D.
|Nov 6 2003||Request for extension of time filed|
to file appellant's opening brief. (11th request)
|Nov 12 2003||Extension of time granted|
to 1/12/2004 to file appellant's opening brief. The court anticipates that after that date, only two further extensions totaling 90 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all stpes necessary to meet it.
|Jan 9 2004||Counsel's status report received (confidential)|
from State P.D.
|Jan 9 2004||Extension of time granted|
to file appellant's opening brief. (12th request)
|Jan 13 2004||Extension of time granted|
to 3/12/2004 to file appellant's opening brief. The court anticipates that after that date, only one further extension totaling 30 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
|Mar 9 2004||Request for extension of time filed|
to file appellant's opening brief. (13th request)
|Mar 9 2004||Counsel's status report received (confidential)|
from State P.D.
|Mar 12 2004||Extension of time granted|
to 5/11/2004 to file appellant's opening brief. After that date, only one further extension totaling about 30 additional days will be granted. Extension is granted based upon Supervising Deputy State Public Defender Jeffrey J. Gales's representation that he anticipates filing that brief by 6/10/2004.
|Apr 15 2004||Record certified for accuracy|
|May 10 2004||Counsel's status report received (confidential)|
from State P.D.
|May 10 2004||Request for extension of time filed|
to file appellant's opening brief. (14th request)
|May 13 2004||Extension of time granted|
to 6/11/2004 to file appellant's opening brief. After that date, no further extension will be granted. Counsel is ordered to inform his or her supervising attorney, if any, of this schedule, and to take all steps necessary to meet it.
|May 19 2004||Request for extension of time filed|
to file AOB. (15th request)
|May 21 2004||Extension of time granted|
to 6-30-2004 to file AOB. After that date, no further extension will be granted. Counsel is ordered to inform his or her supervising attorney, if any, of this schedule, and to take all steps necessary to meet it.
|May 21 2004||Record on appeal filed|
Clerk's Transcript 18 volumes (2,382 pages) and Reporter's Transcript 28 volumes (2,343 pages) including material under seal. ASCII disks.
|May 21 2004||Letter sent to:|
counsel advising that record on appeal was filed this date.
|Jun 25 2004||Request for extension of time filed|
to file appellant's opening brief. (16th request)
|Jul 2 2004||Extension of time granted|
to 7/14/2004 to file appellant's opening brief. Extension is granted based upon Assistant State Public Defender Jay Colangelo's representation that he anticipates filing that brief by 7/14/2004. After that date, no further extension will be granted.
|Jul 7 2004||Counsel's status report received (confidential)|
from State P.D.
|Jul 14 2004||Appellant's opening brief filed|
(64,930 words - 236 pp.)
|Jul 14 2004||Motion for access to sealed record filed|
appellant's motion to unseal trial transcript.
|Jul 15 2004||Respondent's brief letter sent; due:|
November 12, 2004
|Aug 10 2004||Letter sent to:|
counsel advising that the court is considering whether to unseal, on its own motion, the transcript that is the subject of appellant's "Motion to Unseal Trial Transcript," filed on 7-14-2004. (See Cal. Rules of Court, rule 12.5(f)(2).) The court invites counsel to serve and file a response, on or before 8-17-2004, addressing whether the transcript in question is "required to be kept confidential by law" (Cal. Rules of Court, rule 12.5(a)), and if not, whether "(1) [t]here exists an overriding interest that overcomes the right of public access"; (2) [t]he overriding interest supports [continued] sealing"; "(3) [a] substantial probability exists that the overriding interest will be prejudiced" in the absence of continued sealing; "(4) [t]he proposed [continued] sealing is narrowly tailored"; and "(5) [n]o less restrictive means exist to achieve the overriding interest" (id., rule 243.1(d).
|Aug 13 2004||Filed:|
respondent's response to motion to unseal.
|Aug 17 2004||Filed:|
letter from appellant, dated 8-16-2004, in response to court's letter of 8-10-2004.
|Sep 1 2004||Motion for access to sealed record granted|
Appellant's "Motion to Unseal Trial Transcript," filed on July 14, 2004, is granted. The clerk is directed to unseal the following document and make it available for public access: "Sealed In Camera (Pages 60 to 62) Reporter's Transcript on Appeal, Proceedings had before the Honorable J. Thompson Hanks, Judge of Riverside County, Department 51, on January 13, 1997." The clerk is further directed to provide a copy of the unsealed document to Respondent.
|Nov 3 2004||Request for extension of time filed|
to file respondent's brief. (1st request)
|Nov 8 2004||Extension of time granted|
to 1/11/2005 to file respondent's brief.
|Dec 29 2004||Motion for access to sealed record filed|
respondent's application to unseal trial transcript.
|Dec 29 2004||Request for extension of time filed|
to file respondent's brief. (2nd request)
|Jan 5 2005||Filed:|
Appellant's response to respondent's motion to unseal trial transcript.
|Jan 5 2005||Extension of time granted|
to 2/10/2005 to file respondent's brief. Extension is granted based upon Deputy Attorney General Lise Jacobson's representation that she anticipates filing that brief by 2/10/2005. After that date, no further extension is contemplated.
|Jan 19 2005||Motion for access to sealed record granted|
Respondent's "Application to Unseal Trial Transcript," filed December 29, 2004, which is in substance an application for a copy of a sealed transcript pursuant to California Rules of Court, rule 31.2(a)(4), is granted. The clerk is directed to provide respondent with a copy of the 'Sealed Pretrial Proceedings Before the Honorable J. Thompson Hanks, Judge Presiding, Department 51, June 3, 1996, case number CR-59671 of the Consolidated Superior/Municipal Courts of Riverside County - Western Branch, volume 1PT-A, pages 131 -133.' (CT 242; RT 131-133) The transcript is to remain sealed.
|Feb 1 2005||Respondent's brief filed|
(36,931 words; 123 pp.)
|Apr 1 2005||Request for extension of time filed|
to file appellant's reply brief. (1st request)
|Apr 6 2005||Extension of time granted|
to 6/1/2005 to file appellant's reply brief.
|May 26 2005||Request for extension of time filed|
to file appellant's reply brief. (2nd request)
|May 31 2005||Extension of time granted|
to 8/1/2005 to file appellant's reply brief. Extension is granted based upon Supervising Deputy State Public Defender Jeffrey J. Gale's representation that he anticipates filing that brief by 8/1/2005. After that date, no further extension is contemplated.
|Jul 28 2005||Appellant's reply brief filed|
(17,551 words; 66 pp.)
|May 29 2007||Order appointing Habeas Corpus Resource Center filed|
Upon request of appellant for appointment of counsel, the Habeas Corpus Resource Center is hereby appointed to represent appellant John Mungia for habeas corpus/executive clemency proceedings related to the above automatic appeal now pending in this court. Any "petition for writ of habeas corpus will be presumed to be filed without substantial delay if it is filed . . . within 36 months" of this date (Supreme Ct. Policies Regarding Cases Arising From Judgments of Death, policy 3, timeliness std. 1-1.1), and it will be presumed that any successive petition filed within that period is justified or excused (see In re Clark (1993) 5 Cal.4th 750, 774-782), in light of this court's delay in appointing habeas corpus/executive clemency counsel on behalf of appellant John Mungia.
|Jul 26 2007||Counsel's status report received (confidential)|
|Aug 23 2007||Change of contact information filed for:|
|Sep 26 2007||Counsel's status report received (confidential)|
|Nov 28 2007||Counsel's status report received (confidential)|
|Jan 9 2008||Counsel's status report received (confidential)|
|Mar 14 2008||Oral argument letter sent|
advising counsel that the court could schedule this case for argument as early as the May 2008 calendars, to be held the weeks of May 5 and May 26, 2008, in San Francisco. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument.
|Mar 25 2008||Counsel's status report received (confidential)|
|Apr 30 2008||Case ordered on calendar|
to be argued on Wednesday, May 28, 2008, at 1:30 p.m., in San Francisco
|May 8 2008||Received:|
appearance sheet from Deputy State Public Defender Jeffrey Gale, indicating 30 minutes for oral argument for appellant.
|May 9 2008||Received:|
appearance sheet from Deputy Attorney General Lise Jacobson, indicating 30 minutes for oral argument for respondent.
|May 9 2008||Filed:|
respondent's focus issue letter, dated May 8, 2008.
|May 14 2008||Filed:|
appellant's focus issue letter, dated May 13, 2008.
|May 15 2008||Received:|
respondent's additional authorities letter, dated May 14, 2008.
|May 19 2008||Received:|
appellant's additional authorities letter, dated May 16, 2008.
|May 27 2008||Counsel's status report received (confidential)|
|May 28 2008||Cause argued and submitted|
|Jul 11 2008||Motion to withdraw as counsel filed|
by the State Public Defender.
|Jul 24 2008||Motion for appointment of counsel filed|
by Jeffrey J. Gale, Attorney at Law.
|Jul 29 2008||Counsel's status report received (confidential)|
|Aug 12 2008||Filed:|
by Donald Ayoob, Chief Asst. State Public Defender, "Supplemental Declaration in Support of Motion to Withdraw as Counsel of Record for Appellant Mungia."
|Aug 13 2008||Notice of forthcoming opinion posted|
|Aug 14 2008||Opinion filed: Judgment affirmed as modified|
The torture-murder special-circumstance finding is vacated. The remainder of the judgment, including the sentence of death, is affirmed. Opinion by Kennard, J. -----joined by George, C.J., Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.
|Aug 20 2008||Filed:|
by the Office of the State Public Defender, "Amended Certificate of Service" for the supplemental declaration filed on August 12, 2008.
|Aug 29 2008||Rehearing petition filed|
by State Public Defender (837 words; 5 pp.)
|Sep 2 2008||Time extended to consider modification or rehearing|
The time for granting or denying rehearing in the above-entitled case is hereby extended to and including November 12, 2008, or the date upon which rehearing is either granted or denied, whichever occurs first.
|Sep 4 2008||Related habeas corpus petition filed (post-judgment)|
|Sep 17 2008||Withdrawal of counsel allowed by order|
Good cause appearing, the application of appointed counsel for permission to withdraw as attorney of record for appellant John Mungia, filed July 11, 2008 (supplemental supporting declaration filed Aug. 12, 2008), is granted. The order appointing the State Public Defender as appellate counsel of record for appellant John Mungia, filed July 30, 2001, is hereby vacated. Jeffrey J. Gale is hereby appointed as counsel of record to represent appellant John Mungia for the direct appeal in the above automatic appeal now pending in this court.
|Sep 24 2008||Rehearing denied|
The petition for rehearing is denied. Corrigan, J., was absent and did not participate.
|Sep 24 2008||Remittitur issued (AA)|
|Oct 2 2008||Received:|
acknowledgement of receipt of remittitur.
|Dec 1 2008||Counsel's status report received (confidential)|
|Dec 23 2008||Received:|
copy of appellant's petition for writ of certiorari. (12 pp. excluding appendices.)
|Jan 9 2009||Received:|
letter from USSC, dated January 5, 2009, advising that petition for writ of certiorari was filed on December 22, 2008 and placed on the docket January 5, 2009 as No. 08-8010.
|Mar 2 2009||Certiorari denied by U.S. Supreme Court|
|Jul 15 2009||Compensation awarded counsel|
|Aug 13 2009||Compensation awarded counsel|
|Jul 14 2004||Appellant's opening brief filed|
|Feb 1 2005||Respondent's brief filed|
|Jul 28 2005||Appellant's reply brief filed|
|Dec 15, 2008|
Annotated by admin.ah
Written by: Benjamin T. Alden
PROCEDURAL HISTORY: Defendant was convicted following jury trial in the
TRIAL COURT PROCEEDINGS: John Mungia was convicted by jury of first degree
ISSUES: Should the trial court’s death penalty verdict be affirmed on automatic appeal?
CASE SUMMARY: The California Supreme Court affirmed the judgment of the jury in
[CrimLaw > CrimProc > Counsel > Court Removal of Public Counsel > Court
[CrimLaw > Death Penalty > Constitutionality > United States Constitution]. The
SUBSEQUENT HISTORY: Rehearing denied, Sept. 24, 2008. PEOPLE OF THE
STUDENT ANALYSIS: This case is interesting because it results from an automatic