Supreme Court of California Justia
Citation 53 Cal. 4th 1181, 274 P.3d 413, 139 Cal. Rptr. 3d 786
People v. Myles

Filed 4/26/12



Plaintiff and Respondent,




San Bernardino County

Defendant and Appellant.

Super. Ct. No. FSB10937

A jury convicted defendant John Myles and a codefendant, Tony Tyrone

Rogers, of the first degree murder of Fred Malouf (Pen. Code, § 187, subd. (a)),1

and found true the special circumstance allegations that the murder was committed

while defendant and Rogers were engaged in the commission of robbery (§ 190.2,

subd. (a)(17)(A)).2 The jury also convicted defendant of the second degree

robbery of two other victims (§ 211), and unlawful possession of a firearm (former

§ 12021, subd. (a)(1) (now § 29800, subd. (a)(1); Stats. 2010, ch. 711)).3 In


All further statutory references are to the Penal Code unless otherwise

indicated; references are to the provisions effective at the time of trial.


Outside of the jury‟s presence during the defense case, defendant admitted

that he had suffered a prior felony conviction. As a result of that admission, the
jury was not called upon to determine the truth of a “second strike” allegation
pursuant to section 667, subdivisions (b) through (i), or to decide whether
defendant was a felon for purposes of the felon-in-possession charge under former
section 12021, subdivision (a).


Codefendant Rogers also was convicted of one count of second degree

robbery (§ 211), and the jury found true the allegations that he personally used a

(footnote continued on next page)


connection with the murder and robbery counts, the jury found true the allegations

that defendant personally used a handgun. (§ 12022.5, subd. (a).)

In a separate, subsequent proceeding, the same jury convicted defendant of

the first degree murder of Harry “Ricky” Byrd, and found true the special

circumstance allegation that defendant had been convicted of more than one

murder and the allegation that defendant personally used a handgun in the murder.

(§§ 187, subd. (a), 190.2, subd. (a)(3), 12022.5, subd. (a).) After the penalty

phase, it returned a verdict of death. Defendant moved for new trial (§ 1181), and

for modification of his sentence to life without the possibility of parole (§ 190.4,

subd. (e)). The trial court denied the motions and sentenced him to death.4

Defendant‟s appeal is automatic. (§ 1239, subd. (b).) For the reasons that follow,

we affirm the judgment.

(footnote continued from previous page)

handgun in the commission of the murder and the robbery (§ 12022.5,
subd. (a)(1)). He was sentenced to life in prison without the possibility of parole
consecutive to 10 years for the murder conviction.


The court also imposed an aggregate determinate sentence of 44 years

eight months, for the robbery and felon-in-possession convictions and firearm-use
findings, but ordered all but 11 years four months of that term stayed pursuant to
section 654. As discussed post, in part II.C.3., we order that the abstract of
judgment be corrected in a minor respect with regard to the determinate term.



A. Guilt Phase Evidence

1. Prosecution evidence

a. The murder of Harry “Ricky” Byrd5

Juli Inkenbrandt was a methamphetamine user. On April 11, 1996, she

borrowed a neighbor‟s Buick sedan to drive her drug dealer friend, Jshakar Morris,

and defendant to the West Side neighborhood in San Bernardino. They told her

they needed to “collect some money.” Morris sat in the front passenger seat and

defendant, whom Inkenbrandt did not know, sat in the backseat behind Morris.

Inkenbrandt‟s one-year-old daughter was in a car seat to the left of defendant in

the backseat.

Inkenbrandt drove to an area known as California Gardens. As she headed

down Magnolia Avenue, defendant directed her to pull up to a group of young

men who were talking in the front yard of a house. Inkenbrandt stopped the car in

the middle of the street and defendant yelled out of the left backseat window

something to the effect of “You guys know Smoke?” They shrugged their

shoulders and said, “No.” One member of the group, Harry “Ricky” Byrd

(Ricky), suggested to defendant that he “[g]o check on the dark side.” The young

men then resumed their socializing.

Defendant and Morris directed Inkenbrandt to continue driving.

Unbeknownst to defendant and Morris, they passed Ricky‟s cousin, Gary Lee,

who was standing outside talking with Darion “Smoke” Robinson.


As discussed more fully post, in part II.A.1., trial on the Ricky Byrd murder

count was bifurcated from, and conducted subsequently to, trial on the charges
stemming from the incident at the Pepper Steak Restaurant that occurred nine days
after the Ricky Byrd shooting.


After several minutes of driving around, defendant directed Inkenbrandt to

return to where the young men were gathered on Magnolia Avenue. Driving in

the same direction as at the time of the initial encounter, Inkenbrandt pulled the

Buick closer to the group as defendant instructed. Defendant again yelled to them

from the left backseat window, this time asking whether they would “give Smoke

a message for him.” Ricky, who was leaning on the side of a friend‟s car that was

parked between him and the Buick, replied, “Okay. What‟s the message?”

Defendant reached over the baby in the car seat, pointed two guns out the window,

and fired twice. The young men dropped to the ground for cover, and the Buick

drove off. Ricky suffered a fatal gunshot wound to his upper chest. Another

bullet struck the driver‟s seat headrest in the parked car.

As Inkenbrandt sped away from the scene at defendant‟s direction, they

again passed Gary Lee and Darion Robinson, who were still outside talking. This

time, defendant shot at them with what sounded to Lee like a .22-caliber revolver.

The two men ducked behind a parked car until the Buick was gone. They then

pursued their assailant by car, but lost sight of the Buick as it headed toward

Interstate 215. However, Lee thought that he recognized the car and the driver,

and he drove to an area where he believed he might find them.

When defendant‟s group arrived back at Inkenbrandt‟s apartment complex,

defendant and Morris instructed her to park behind the buildings. Defendant then

removed the shell casings from inside the vehicle and they left, telling Inkenbrandt

to forget what she had seen. Inkenbrandt used the Buick to run some errands. On

her return 15 to 20 minutes later she parked in her normal parking spot in front of

the buildings. Shortly after her arrival, defendant and Morris ran up to her, asking

for a ride to an area where they sold drugs. Inkenbrandt dropped them off as

requested, then returned home, again parking in the front of the apartment



At some point when the Buick was parked in front of the apartment

complex, Lee and Robinson had driven by and located it. Seeing no one in the

Buick, they returned to Magnolia Avenue, where they discovered that Ricky had

been fatally shot. After hearing witnesses describe the car involved in that

shooting, Lee realized that it was the same car from which shots had been fired at

him. When Lee led police officers to where he had spotted the vehicle, it was no

longer there. However, police were on the scene moments after Inkenbrandt

returned to the apartment complex after dropping off defendant and Morris. A

witness from the Magnolia Avenue shooting was sitting in the back of an

unmarked police vehicle and he identified the Buick and Inkenbrandt as the driver.

When police then contacted Inkenbrandt in her apartment, she told them what had

happened from “the beginning to the end.” As she explained at trial, she talked

with the officers about the incident because she “wasn‟t going down for a murder I

didn‟t commit that they were stupid enough to do.”

Approximately three weeks after the shootings, two other eyewitnesses

attended a live lineup and identified defendant as the gunman. They also

identified him at trial. Inkenbrandt likewise identified defendant, first by

photograph, then at a live lineup, and finally at trial. Although one other

eyewitness to the shooting had never been asked to view a photographic array or

attend a live lineup, he positively identified defendant at trial.

Investigating officers searching the area where Ricky was shot recovered a

live .380-caliber round of ammunition and a spent .380-caliber shell casing. The

.380-caliber round bore an “FC” headstamp and the casing had a Winchester

headstamp. During the investigation of the shooting, a search of a room at the

Phoenix Motel in San Bernardino yielded defendant‟s fingerprints and clothing,

along with eight live .380-caliber rounds of ammunition, one live .22-caliber

round, and two expended .22-caliber shell casings. One of the .380-caliber rounds


discovered in the motel room had an “FC” headstamp like the live round found at

the scene where Ricky was shot. And ballistics testing showed that the bullet that

killed Ricky was of the same variety as bullets in the live .380-caliber rounds

found at the scene of the shooting and at the Phoenix Motel.

In connection with the subsequent shooting incident at the Pepper Steak

Restaurant in nearby Colton, officers searched a vehicle parked in the lot of an

apartment building in San Bernardino. They found inside the trunk a Lorcin .380-

caliber semiautomatic handgun wrapped in a towel. Although the prosecution‟s

firearms expert could not state conclusively that the bullet that killed Ricky had

been fired from the Lorcin, he expressed the view that it could have been. The

parties stipulated at trial that, if called to the stand, witnesses would testify that a

person they believed to be defendant possessed a Lorcin semiautomatic handgun.

b. Robbery Murder at the Pepper Steak Restaurant

Nine days after Ricky Byrd‟s murder, defendant, with 17-year-old Tony

Tyrone Rogers, used a firearm to commit a robbery that led to another death.

On April 20, 1996, Fred Malouf (hereafter sometimes Fred), his wife

Donna Malouf (Donna),6 and Donna‟s mother went to the Pepper Steak Restaurant

in Colton at around 8:00 p.m. for coffee. Donna was an employee of the

restaurant and had worked the morning shift that day. Fred was a retired captain

in the Colton Police Department.

After the Malouf party sat down in a booth at the back of the restaurant, a

waitress named Krystal Anderson walked over to say hello. Donna testified at

trial that moments later, defendant came running through the restaurant yelling,


At the time of trial, Donna Malouf had remarried and went by the name

Donna Malouf Lawrence.


“It‟s a robbery. I‟ll shoot. Get your money out.” He was holding a large

semiautomatic gun in his right hand. A mask came across his mouth and nose,

and he was wearing a beanie on his head.

Donna further testified that she immediately rose from the booth and started

walking toward the kitchen because she knew that a gun was kept there. Before

she reached her destination, however, defendant ran up and grabbed her by the

hair. He yelled and cursed at her, wanting to know whether she was the manager

and where the safe was located, and threatening to “blow [her] head off.” Donna

told him there was no manager and no safe. According to Donna‟s testimony,

defendant was yelling so hard that his mask slipped below his nose, and she could

see all of his face except for his mouth and the top of his head. He then wrapped

his hand holding his gun around Donna‟s throat and dragged her by the hair into

the kitchen.

Donna noticed that three other employees and the codefendant, Tony

Rogers, were inside the kitchen. Rogers also was armed with a large

semiautomatic gun, and he was wearing a hat but no mask. Defendant directed

Rogers to shoot Donna if she moved, then left the kitchen and returned to the

dining area. Several minutes later, Donna noticed Fred‟s face in the window of

the kitchen‟s back door.

Rogers ran toward the back door just as Fred was entering. When Fred

attempted to wrest control of Rogers‟s gun, a shot rang out. Donna saw Fred fall

back into the women‟s restroom. Rogers then stood over Fred and shot him

repeatedly. At some point, Fred managed to remove his gun from his ankle holster

and shoot Rogers in the upper chest. Rogers screamed, “I‟ve been shot,” and ran

past Donna to exit the kitchen and flee.

Other restaurant employees and patrons gave varying accounts of the

sequence of events prior to the shooting. Krystal Anderson, the waitress who was


talking with the Maloufs at the outset of the robbery, testified that defendant

dragged Donna by the hair and forced her into a booth, then pushed Anderson

toward the cash register near the front of the restaurant by kicking her legs and

hitting her. When Anderson had trouble complying with defendant‟s repeated

demands to open the register, he hit her in the stomach with his gun. After she

finally managed to open the register, defendant took out the money, which was

mostly $5 and $10 bills. Defendant then reached into Anderson‟s apron and

removed her tips. Another witness, Harold Lewis, was seated with his wife and

grandson in a booth across from the cash register when defendant came into the

restaurant waving his gun and demanding that everyone put their money on the

table. According to his testimony, defendant first dragged Donna to the cash

register before grabbing the other waitress. After taking the money from the till,

defendant came up to Lewis, twisted Lewis‟s arm behind his back, and pointed the

gun behind his ear. He then took the billfold and money that Lewis had placed on

the table.

There were some discrepancies in the testimony of the eight witnesses

regarding the events in the restaurant before the shooting. But the witnesses

testified consistently that after the shots were fired, defendant first ran back to the

door leading to the kitchen and then fled through the front door of the restaurant.

Three witnesses further testified that they saw defendant point his gun in the

kitchen‟s passthrough window and heard it click, but that the gun did not fire.

Officers responding to a dispatch regarding the robbery found Rogers

hunched over on the sidewalk a short distance away. There was a semiautomatic

handgun lying next to him. Rogers complained of a shotgun wound to the

stomach and officers observed blood in his abdominal area. He was handcuffed

and transported to the hospital, where he underwent emergency surgery. Officers


took Donna to view Rogers in the hospital, where she identified him as the


An autopsy showed that Fred was shot five times at close range, suffering

gunshot wounds to his face, abdomen, knee, thigh, and wrist. The fatal wound

was the gunshot to the abdomen, which caused a small hole in the aorta that led to

massive internal hemorrhaging.

Officers investigating the crime scene discovered extensive evidence of

gunfire in the kitchen area and restrooms, including 7 nine-millimeter cartridges,

an expended bullet, and numerous bullet fragments. Ballistics testing on the nine-

millimeter semiautomatic gun found next to Rogers at the time of his arrest

showed that all of the cartridges found in the kitchen had been fired from his


In the early morning hours the day after the shooting, officers contacted

Rogers‟s 22-year-old cousin, Earl Williams, who was allowing Rogers to live with

him. Williams told the officers that Rogers associated with three large African-

American men, one of whom he identified as J-Dog, the name by which defendant

was known. Williams also took the officers to the San Bernardino apartment

rented by Lateshia Winkler, where defendant occasionally stayed. Police then

brought Williams to the police station to question him about his possible

involvement in the crimes. He told officers that around 11:30 a.m. on the day of

the shooting, defendant came to his apartment looking for Rogers, saying he

needed “to talk to him about some cash flow.” Williams told defendant that

Rogers was socializing at a nearby apartment and defendant left. When he

returned to Williams‟s apartment with Rogers a short time later, Williams

overheard defendant telling Rogers that he had been watching two places for the

last two days and “we got to hit them before 8 o‟clock.” Williams testified at trial

that he did not recall most of what he had told the officers during the questioning.


Investigators also interviewed Lateshia Winkler, in whose apartment

defendant occasionally stayed. According to Winkler, defendant, Rogers, and

another man whom she did not know left her apartment between 6:00 and

6:30 p.m. on the evening of the shooting. Defendant returned around 10:00 p.m.

alone, two hours later than the time he said he would be home, and went straight to

his bedroom. He appeared to be high. Winkler followed him, asking for an

explanation but defendant stated angrily, “Don‟t start. I‟ve got a lot of shit on my

mind.” Defendant then left the apartment for about 30 to 45 minutes. Winkler

also told officers that in a longer conversation later that same night, defendant

stated that “his homeboy got shot in a robbery, either by somebody who worked

there or somebody who was staking it out.” The next day, while defendant was

speaking with his mother by telephone, Winkler overheard defendant asking his

mother, “What are they going to do?” and “Did he die?” Later, he told Winkler

that his friend had been shot and was at a nearby hospital in police custody. Like

Earl Williams, Winkler testified at trial that she did not remember most of what

she told police during the interview.

Both Williams and Winkler told police that they previously had seen

defendant carry a handgun. According to Winkler, defendant kept two loaded

magazines on the headboard in his bedroom and stored the gun in the trunk of

Winkler‟s 1973 Pontiac Firebird, which was parked in a lot close to her apartment.

Police searched the trunk of her car and discovered a Lorcin .380-caliber

semiautomatic handgun.

During the investigation, several eyewitnesses identified defendant as the

masked man who entered the front of the restaurant waving a large firearm and

announcing that a robbery was in progress. Donna picked defendant‟s picture

from a photographic lineup, telling police she was “80 percent sure” that the

photograph depicted the man who had forced her to go into the kitchen. She also


identified defendant in a live lineup conducted about one week after the

photographic lineup, and later again at trial.

2. Defense evidence

a. Defendant’s defense case

Defendant presented no evidence at the Ricky Byrd murder trial.

To cast doubt on the prosecution‟s evidence regarding the crimes at the

Pepper Steak Restaurant, the defense called a number of the investigating officers

who had interviewed prosecution witnesses. For example, to undercut the

evidence that defendant left Winkler‟s apartment with Rogers at approximately

6:00 to 6:30 p.m. and returned alone and worried about his “homeboy,” the

defense elicited from Sergeant Mark Owens discrepancies in Winkler‟s various

accounts of these events. Specifically, Winkler had told the officer that on the

night of the crimes, defendant said only that his friend got shot while trying to

commit a robbery and that it was not until the following day that defendant

mentioned that one of his “homies” either killed somebody or got [himself] killed”

by “some gang bangers.”

The defense also emphasized the lack of physical evidence linking

defendant to the crimes. Sergeant Owens informed the jury that in his search of

clothing associated with defendant he never found a ski mask or black cap, gloves,

dark running suit, or any other article of clothing described by the eyewitnesses.

He confirmed that Winkler told him defendant had about $20 in $1 bills and coins

either on the night of the robbery or the day after, and that he knew that only $5

and $10 bills had been taken from the restaurant‟s cash register. The defense also

elicited from Officer Leroy Valadez that Harold Lewis reported to him that there

was approximately $500 hidden inside the wallet that defendant took from him.


Testimony by other officers highlighted discrepancies in the eyewitnesses‟

descriptions of the robber‟s clothing and firearm. The defense also elicited from

the officers that several of the eyewitnesses were unable to provide them with a

description of the robber‟s facial features because his face was covered by a ski

mask during the incident.

The defense further challenged the prosecution‟s identification evidence by

presenting testimony by an eyewitness identification expert. Robert Shomer,

Ph.D., described the various factors that reduce the accuracy of an identification,

including life-threatening, unexpected and traumatic circumstances, age and racial

differences between the eyewitness and the perpetrator, the manner in which the

identification procedure is conducted, and the precision of the eyewitness‟s initial

description. According to Dr. Shomer, the more stressors present, the more

difficult it is to later identify a person. He also explained that the accuracy of an

identification is further reduced when any substantial part of a person‟s face is

covered, and that eyes are not a good feature for identifying a person because

unlike ears, the mouth, the nose, and the hairline, eyes typically are not that


b. Codefendant Rogers’s defense

Rogers offered his own account of events at the Pepper Steak Restaurant.

Rogers testified that he left his apartment with G-Dog and someone named Dee to

drive to someone else‟s house. He passed out as they drove around because he

had been drinking beer and smoking marijuana. When he awoke, they were in the

Pepper Steak Restaurant‟s parking lot and Dee told him, “Homies went inside.”

Rogers had to use the restroom. When he opened the door to what he thought was

the restroom, a man “came out of nowhere” and shot him in the chest. In

response, Rogers removed the gun that was tucked into his pants. When he and


the man struggled for his gun, it fired accidentally and then kept firing. He then

ran out of the door to get help but passed out on the sidewalk. Rogers denied

going into the restaurant to commit a robbery or to “back up” G-Dog.

According to Rogers, defendant was not involved in the robbery.

B. Penalty Phase Evidence

1. Prosecution’s case in aggravation

The prosecution presented evidence that defendant committed six other

criminal acts involving violence or a threat of violence, three of which occurred in

the West Valley Detention Center where defendant was incarcerated while

awaiting trial on the capital crimes. Family members of the murder victims

testified about how they were affected by their loved ones‟ deaths.7

a. Robbery at Denny’s Restaurant

In October 1992, Mark Repman worked as the manager at the Denny‟s

Restaurant in Victorville. Repman testified that around 11:30 p.m. on October 28,

defendant and two other African-American men entered the restaurant armed with

pistols and a shotgun. One of the men placed a gun to the back of Repman‟s head

and ordered him to the office. Repman complied with the man‟s demand to open

the safe, handing over about $1,200 in cash. Meanwhile, defendant pointed a

shotgun at the restaurant customers and employees and ordered them down on the


Deputy Sheriff Matthew Kitchen testified that he responded to the report of

a robbery in progress by stationing his vehicle on the freeway on-ramp near the


Defendant was permitted to absent himself from the penalty phase after a

pretrial hearing at which he indicated to the court that he did not want to “act out”
or “cause a scene.” (§ 1043, subd. (b)(1).)


restaurant. He spotted a car that matched the description of the assailants‟ vehicle

and a high-speed chase ensued. When the suspects‟ car failed to negotiate a

freeway exit and crashed onto an embankment, two of the men jumped out of the

vehicle and ran toward the railroad tracks. California Highway Patrol Sergeant

Steven Urrea testified that he took defendant into custody along the tracks and

found money and a shotgun under a nearby bush. The parties stipulated that

defendant was convicted of second degree robbery in connection with this

incident. (§ 211.)

b. Shooting of Shawn Boyd

Lieutenant Robert Miller of the Colton Police Department investigated a

shooting that had occurred at the home of defendant‟s mother in February 1996.

Miller testified that the victim, Shawn Boyd, told him that he was visiting

defendant‟s mother on the evening of February 23. Around 11:45 p.m., Boyd

mentioned in conversation that he was doing well and had a job and new clothes.

Defendant became jealous and agitated, telling Boyd to “get into the

motherfucking room” and pointing to the master bedroom. When Boyd resisted,

defendant threatened to “plug” him. He then shoved Boyd toward the bedroom,

pulled out a handgun and shot him in the face. Boyd ran through the bedroom and

jumped from the second story through a glass window. The prosecution‟s

firearms expert at the guilt phases, William Matty, testified that the bullet

recovered from the scene of that shooting was fired from the Lorcin handgun that

was recovered from the trunk of Lateshia Winkler‟s car during the Pepper Steak

Restaurant investigation.

c. Robbery at Thomas Realtors

Thomas Realtors is a San Diego property management company.

According to Jacqueline Graff, who worked as a receptionist there in April 1996,


most of the tenants‟ rent payments came into the office on the 3d and 4th of each

month. Graff testified that on April 3 around 2:20 p.m., two African-American

men entered the office. One of them, whose description matched that of

defendant, put a gun to her head and demanded that she open the desk drawer and

give him all of the money. Graff explained that the owner had taken the money to

the bank. However, she complied with the robber‟s demands to open all of the

drawers and he rifled through them, saying, “Somebody is going to die if I don‟t

get the money.” The assailants then turned their attention to Graff‟s coworker,

Paul Baumhoefner, who had come to the lobby to see what the commotion was

about. Baumhoefner testified that the man with the gun held the weapon inches

from his face, demanding money and backing him into his private office. Like

Graff, Baumhoefner explained that the owner was on his way to the bank, and he

opened all of his desk drawers to show that there was no money inside. He also

pulled out a wad of money from his pockets, which the gunman grabbed before

leaving the office and heading out the front door. Baumhoefner then retrieved the

owner‟s gun from another desk and ran out the door in pursuit. He got into his

truck and took off after a red sedan that bystanders had identified as the getaway

car. Baumhoefner eventually pulled up behind the car and noted its license plate

number, then returned to the office and reported the number to responding


The commotion on the street near the scene of the robbery had attracted

Thomas Stone‟s attention as he was driving by. Stone testified that he saw

bystanders pointing at a red car, which he followed as it made its way down

various streets and alleys. When the car stopped in an alley, a large African-

American man emerged from the passenger side and started shooting at Stone as

Stone tried to back up, hitting his vehicle in several places.


The parties stipulated that two days after the incident, police located a

sedan with a license plate number matching the one reported by Paul

Baumhoefner, and that one of the four latent fingerprints recovered from the

vehicle was positively identified as belonging to defendant. The prosecution‟s

firearms expert testified that the .380-caliber casings recovered from the scene of

the shooting could have been fired from the Lorcin handgun, and that cartridges

found in the alley were the same kind as those recovered from the scene of the

Shawn Boyd shooting six weeks earlier.

d. Jail incidents

Defendant was held at the West Valley Detention Center in Rancho

Cucamonga while awaiting trial in the case. In December 1996, eight months

after his arrest, he had a violent outburst during a “shakedown” search of the unit

where he was being housed. Deputy Joseph Perea of the San Bernardino County

Sheriff‟s Department testified that during the shakedown, when the inmates were

lined up in front of their cells, defendant mumbled something under his breath as

one of the deputies passed by him. Perea and another deputy took defendant to the

multipurpose room and asked him to sit down, but defendant did not comply.

When Deputy Mark James intervened and attempted to push defendant down into

his chair, defendant punched him on the left side of the face, rendering him

unconscious. Perea sprayed defendant with pepper spray, but defendant managed

to throw a food cart at the officer, hitting him in the right arm. Defendant then ran

to a utility room, grabbed a push broom and started swinging it wildly. The

deputies managed to knock the broom out of defendant‟s hands by throwing

plastic chairs at him, then attempted to tackle him, eventually getting defendant

under control by handcuffing him and shackling his legs.


Defendant had a second violent confrontation with deputies five months

later. According to the testimony of Deputy Timothy Nichols, in May 1997,

Deputy David Llewellyn ordered defendant to go into his cell and “lock it down”

for disrespecting one of the deputies. Defendant first disregarded the directive,

then took a combative stance and responded, “Fuck you.” Deputy Nichols sprayed

him with pepper spray, but it had no effect. Defendant then stepped toward the

deputies, and he and Llewellyn started hitting each other with their fists. When

Nichols attempted to place defendant in a “choke hold,” defendant threw him off

and punched him repeatedly on the side of the head and in the groin as he tried to

get up off the ground. Defendant then picked up Nichols and tried to throw him

over the second-tier railing. After releasing his hold on Nichols, defendant

resumed fighting with Llewellyn until he was subdued by other deputies.

A third incident occurred approximately one month before the start of the

first guilt phase trial. Deputy Alejandro Barrero testified that in November 2000,

he removed from defendant a sharpened metal instrument known as a “shank.”

The homemade shank had a cloth handle with a leash made of rope that would

permit the user to retrieve the weapon in the event it slipped or was grabbed away.

e. Victim impact evidence

i. Ricky Byrd’s murder

Ricky Byrd‟s father, Harry Byrd III, told the jury that when he was

informed of his son‟s death, he fell to his knees and dropped the telephone in

disbelief. It was very difficult for him to see his son in a coffin. Although Byrd

had not seen Ricky in person for a year or two before the murder, he had spoken to

him the previous weekend and Ricky was planning to come to Northern California

to visit him the following week.


Ricky Byrd‟s grandmother testified that Ricky lived with her off and on for

most of his life and that she was very close to him. Her home was three houses

away from the scene of the shooting and she heard the gunfire while she was in the

backyard hanging up laundry. Although she was grateful that the responding

officer was performing CPR on Ricky, she knew when she saw him lying on the

sidewalk that he was gone. She further testified that little things around the house

brought back memories of Ricky every day, as did the presence of Ricky‟s young

son, Harry Byrd V, who was born shortly after Ricky‟s death. She also informed

the jury that on the day of the shooting, Ricky had applied for a job at UPS, and

that he aspired to go to college to become a marine biologist.

ii. Fred Malouf’s murder

Fred‟s wife Donna testified that she has been in weekly counseling to deal

with her grief and anger. She also told the jury that she had since remarried, but

that “Fred was, and always will be, my life.”

Fred‟s nephew testified about their close relationship and the profound

influence his uncle had on him, especially on his decision to choose a career in law

enforcement. He also told the jury that his uncle had a great sense of humor and

that during his retirement he “enjoyed life to the fullest” by hunting, fishing,

prospecting, and spending time with the family. He also organized annual family

reunions so that the family could get together for an event other than a funeral.

2. Defense case in mitigation

The defense had intended to present the testimony of three inmates who

witnessed the May 1997 altercation between defendant and sheriff‟s deputies in

the West Valley Detention Center. Because calling the witnesses would have

required a continuance of three to four weeks, however, over the prosecutor‟s


objection, the court permitted the defense to introduce the inmates‟ taped

statements in lieu of their testimony.

The inmates‟ recorded statements were played for the jury, who followed

along with a written transcript. Casey Whigman stated that “all hell broke loose”

when Deputy Llewelyn pushed defendant for not “locking it down” as quickly as

he wanted him to. According to Linnard Roberson, the officers rushed defendant

as he was on his way to his cell, and never asked him to stop. Defendant was

fighting, but he was defending himself, and the officers continued to beat him and

“stomp[] his head into the pavement” even after he had been subdued. Jack

Dunnigan observed that before punches were thrown, one of the officers got “right

up close in [defendant‟s] face” and pushed him. He likewise saw the officers slam

defendant‟s head into the concrete and stomp on him after he was handcuffed.

The defense also presented testimony by David Call, the attorney who

previously had represented defendant in the case. Call explained to the jury that

he had planned to present mitigating evidence regarding defendant‟s upbringing,

but defendant refused to allow him to do so, saying he “would rather die than have

his mother be disgraced in the courtroom.”8


A. Pretrial Issues

1. Denial of motion to sever the two murder counts

Defendant asserts that the trial court abused its discretion and deprived him

of his right to a fair trial and other federal and state constitutional guarantees by

denying his motion to sever trial on the Ricky Byrd murder charge from trial on


Neither party raises an issue regarding the admissibility of defendant‟s

mitigating evidence. We include these facts in the interest of completeness, and
not as an endorsement of the trial court‟s rulings.


the charges relating to the homicide and robberies at the Pepper Steak Restaurant.9

His claim fails, as we explain, post.

a. Background

Defendant and Rogers each were charged with the murder of Fred Malouf

and other crimes related to the incident at the Pepper Steak Restaurant. Defendant

also was charged with the murder of Ricky Byrd, a separate crime occurring nine

days earlier that did not involve Rogers. In November 1997, the court held a

hearing on the prosecutor‟s motion to join defendant‟s and Rogers‟s cases for trial.

The court granted the motion over the objection of Rogers‟s counsel, noting that

the guilt phase would focus predominantly on the restaurant homicide and

robberies and rejecting the argument that evidence regarding the Ricky Byrd

murder charge would prejudice Rogers. The court then considered defendant‟s


Defendant contends that the court‟s rulings violated his rights to due

process, a fair trial, jury trial, a reliable determination of guilt and penalty, and
fundamental fairness as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth
Amendments to the United States Constitution and their counterparts in the
California Constitution. He invokes the same constitutional provisions in almost
every other claim raised in this appeal. “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
of violating the Constitution. To that extent, defendant‟s new
constitutional arguments are not forfeited on appeal. [Citations.]” (People v.
(2006) 38 Cal.4th 412, 441, fn. 17.) “ „No separate constitutional
discussion is required, or provided, when rejection of a claim on the merits
necessarily leads to rejection of any constitutional theory or “gloss” raised for the
first time here.‟ [Citations.]” (People v. Solomon (2010) 49 Cal.4th 792, 811,
fn. 8.)


motion to sever trial on the Ricky Byrd murder charge from trial on the counts

arising from the restaurant incident. In denying that motion, the court observed

that all of the charges involved crimes of the same class and were committed

relatively close in time.

Defendant later sought reconsideration of the court‟s ruling denying

severance. At the hearing on that motion, the court also considered defense

counsel‟s alternative proposal to try defendant and Rogers before a single jury on

the charges relating to the restaurant incident first and then, after the jury reached

its verdicts on those counts, try defendant alone on the Ricky Byrd murder charge

before the same jury and proceed to a penalty phase if necessary. The court again

denied the motion to sever counts, reiterating its prior observation that the charges

arising from the separate incidents were the same class of crimes and finding that

joinder would not create undue prejudice. However, it granted the alternative

request to bifurcate the guilt trial, concluding that the procedure proposed by

defendant‟s counsel would not only prevent the potential for prejudice to

defendant and Rogers, but also avoid the inefficiency of conducting separate trials.

At a subsequent hearing, the court explained more specifically that the bifurcated

guilt phase proceedings would alleviate the problem of the jury‟s hearing both

murder charges at the same time and using each of them “to kind of supplement

the other count.”

Defendant renewed his motion to sever counts after the jury had rendered its

guilty verdicts in the restaurant robbery-murder case, arguing that it was

“fundamentally unfair” to have the same jury now hear the Ricky Byrd murder

charge. The court found no prejudice to defendant and no reason to depart from

its earlier ruling. As the court observed, the bifurcated procedure benefited

defendant because the jury heard evidence and decided the potentially weaker of


the two cases first without having heard the evidence relating to the other shooting


b. Defendant fails to show prejudice from joinder

Defendant does not dispute that the restaurant murder and robbery charges

and the Ricky Byrd murder charge were properly joined under section 954, which

permits the joinder of “two or more different offenses of the same class of crimes

or offenses.” (See also People v. Soper (2009) 45 Cal.4th 759, 771 (Soper).) The

law favors the joinder of counts because such a course of action promotes

efficiency. (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1220.) A trial court

has discretion to order that properly joined charges be tried separately (§ 954), but

there must be a “clear showing of prejudice to establish that the trial court abused

its discretion in denying the defendant‟s severance motion.” (People v. Mendoza

(2000) 24 Cal.4th 130, 160.) In assessing a claimed abuse of discretion, we assess

the trial court‟s ruling by considering the record then before the court. (Soper,

supra, at p. 774; People v. Avila (2006) 38 Cal.4th 491, 575.)

If the evidence underlying each of the joined charges would have been cross-

admissible under Evidence Code section 110110 had they been prosecuted in

separate trials, “that factor alone is normally sufficient to dispel any suggestion of

prejudice and to justify a trial court‟s refusal to sever properly joined charges.”

(Soper, supra, 45 Cal.4th at p. 775; see also People v. Vines (2011) 51 Cal.4th


Evidence Code section 1101, subdivision (b) states, “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.”


830, 855.) We doubt, however, that the evidence regarding these two separate

incidents was sufficiently similar to support an inference of intent, motive, or any

other fact in issue that would render the evidence cross-admissible, and respondent

does not argue otherwise. (People v. Ewoldt (1994) 7 Cal.4th 380, 402-403.) As

defendant observes, the intent and motive behind the restaurant incident was

robbery while the Ricky Byrd shooting may have been motivated by a drug debt or

some sort of personal vendetta against “Smoke.”

We need not affirmatively decide, however, whether the evidence would

have been cross-admissible in separate trials because, as defendant acknowledges,

lack of cross-admissibility is not dispositive of whether the court abused its

discretion in denying severance. (§ 954.1; People v. Thomas (2011) 52 Cal.4th

336, 350 [“When two crimes of the same class are joined, cross-admissibility is

not required”].) To resolve the question of abuse of discretion, we must further

inquire “whether the benefits of joinder were sufficiently substantial to outweigh

the possible „spill-over‟ effect of the „other-crimes‟ evidence on the jury in its

consideration of the evidence of defendant‟s guilt of each set of offenses.”

(People v. Bean (1988) 46 Cal.3d 919, 938; see People v. Thomas, supra, 52

Cal.4th at p. 350.) To make that determination “[w]e consider [1] whether some

of the charges are likely to unusually inflame the jury against the defendant; [2]

whether a weak case has been joined with a strong case or another weak case so

that the total evidence may alter the outcome of some or all of the charges; and [3]

whether one of the charges is a capital offense, or the joinder of the charges

converts the matter into a capital case.‟ [Citation.]” (People v. Thomas (2012) 53

Cal.4th 771, 798-799.) “ „We then balance the potential for prejudice to the

defendant from a joint trial against the countervailing benefits to the state.‟

[Citation.]” (Ibid.)


None of these considerations point to a potential for prejudice that

outweighed the benefits of joint trial in this case. As previously noted, at

defendant‟s request, the trial court ordered the guilt phase of trial bifurcated so that

the jury heard evidence and reached its verdicts in the restaurant case before

considering the evidence regarding the Ricky Byrd homicide. In the trial court‟s

view, such a procedure both prevented the potential for prejudice and avoided the

inefficiency of conducting separate trials. We agree. As the court observed in

denying defendant‟s final severance motion before commencement of the Ricky

Byrd homicide case, the jury heard evidence and decided the potentially weaker of

the two cases without exposure to the evidence relating to the stronger murder

charge. As a result of this procedure, the risk of potential prejudice from joinder

was small and it certainly was outweighed by the benefits of trial on all counts

before a single jury.

Defendant argues nonetheless that the evidence relating to the restaurant

crimes was likely to inflame the jurors against him because the homicide victim in

that case was a retired police officer who was killed while attempting to protect his

wife. We have recognized some potential for prejudice when the murder victims

are police officers killed in the line of duty. (See Odle v. Superior Court (1982)

32 Cal.3d 932, 942 [“[c]ommunities undoubtedly have special hostility toward

„cop killers‟ ”].) The same concerns are not implicated here, however. Moreover,

we observe that the callous, cold-blooded killing of Ricky Byrd, who was shot

down in front of his friends after innocently responding to defendant‟s request to

“give Smoke a message,” was no less inflammatory than the events that unfolded

at the restaurant. Any potential for prejudice from evidence regarding the

restaurant murder was lessened, furthermore, because the evidence of defendant‟s

guilt of the Ricky Byrd murder was strong.


Noting that the Ricky Byrd homicide case, standing alone, did not involve a

special circumstance, defendant asserts further that the court‟s refusal to sever

counts converted that matter into a capital case. There is no potential for prejudice

under this factor, however. As we recently explained in People v. Thomas, supra,

53 Cal.4th at pp. 799-800, “[o]ur concern in such situations is whether joinder

„would tend to produce a conviction when one might not be obtainable on the

evidence at separate trials. Clearly, joinder should never be a vehicle for

bolstering either one or two weak cases against one defendant, particularly where

conviction in both will give rise to a possible death sentence.‟ [Citation.]” In the

present case, the evidence supporting each of the murder cases was not weak and

neither case posed the risk of an unjustifiable conviction.

As defendant correctly points out, even when a trial court‟s denial of

severance was not an abuse of discretion at the time it was made, we must reverse

the judgment on a showing that joinder actually resulted in “ „ “gross

unfairness” ‟ ” amounting to a denial of fair trial or due process. (People v.

Mendoza, supra, 24 Cal.4th at p. 162.) However, he fails to make such a showing

here. Contrary to defendant‟s assertion, the restaurant homicide and robberies

were no more “emotionally charged” and “inflammatory” than the Ricky Byrd

murder charge, as previously discussed. Nor does defendant explain why the trial

court‟s instruction to jurors to decide the Ricky Byrd homicide case “separately

and independently” from the counts at the earlier phase was insufficient to prevent

a grossly unfair trial. Given the bifurcation of trial of the two separate incidents,

there was minimal risk, even absent such an instruction, that the jury would have

considered the restaurant crimes as evidence supporting conviction in the Ricky

Byrd case. (See People v. Mendoza, supra, at p. 163 [rejecting the defendant‟s

argument that the trial court had a sua sponte duty to instruct the jury not to

consider evidence of one of the joined crimes as evidence of another offense].)


Defendant‟s claim that the denial of severance rendered his trial grossly unfair

does not succeed.

2. Denial of defense motion for a “ski mask” lineup

Prior to the start of trial, the defense moved for a live lineup at which the

participants would wear ski masks to partially obscure their faces. Defendant

claims that the trial court‟s denial of that motion was an abuse of discretion and a

violation of his right to due process and other constitutional protections. We

conclude there was no error.

The record shows the following. At a live lineup conducted on April 30,

1996, 10 days after the restaurant crimes, four eyewitnesses to those crimes

identified defendant as the perpetrator who was wearing a ski mask. Four years

later, the defense moved that the court order a live lineup at which the participants

would wear ski masks. At a hearing on the motion, defense counsel argued that,

as a matter of fundamental fairness, the eyewitnesses who identified defendant at

the earlier lineup ought to be provided the opportunity to identify him while he

was wearing a ski mask, which is how they described the perpetrator. The court

observed that it was incumbent on investigators to conduct the initial live lineup,

which had occurred shortly after the shooting. The court also noted that at that

lineup, investigators adopted defense counsel‟s suggestion to have the participants

wear a black knit cap pulled down to the forehead, covering their hair and ears. In

the court‟s view, the initial lineup amply protected defendant‟s due process rights

and a second lineup was not required. As the court pointed out, whether or not an

eyewitness could pick out defendant in a ski mask four years after the incident

would neither bolster nor cast doubt on his or her original identification.

Evans v. Superior Court (1974) 11 Cal.3d 617, 625 (Evans), held that the due

process clause requires the trial court, in an appropriate case, to grant a


defendant‟s timely request for a pretrial lineup. The right to a lineup is not

absolute, however. Rather, it arises “only when eyewitness identification is shown

to be a material issue and there exists a reasonable likelihood of a mistaken

identification which a lineup would tend to resolve.” (Ibid.) The decision whether

to order a pretrial lineup rests within the sound discretion of the trial court. (Ibid.;

see also People v. Williams (1997) 16 Cal.4th 153, 235-236.)

Here, less than two weeks after the incident, eyewitnesses to the restaurant

crimes viewed a live lineup. To account for the fact that there was no opportunity

for the eyewitnesses to observe the robber‟s hairstyle, and at counsel‟s behest, all

of the lineup participants donned black watch caps that were pulled down to cover

their hair, foreheads, and ears. Some of the eyewitnesses identified defendant.

Others identified a different individual or made no identification at all. At trial,

defense counsel cross-examined the eyewitnesses who had positively identified

defendant at the live lineup, eliciting from them that the robber‟s face had been

covered by the ski mask. On this record, we agree with the trial court that

defendant received due process.

Defendant‟s real complaint appears to be that the initial lineup was

suggestive and its results unreliable because, by presenting participants whose

faces were not covered by ski masks, it failed to duplicate the conditions at the

crime scene. We note that Donna testified she was able to see most of defendant‟s

face when his mask slipped down below his nose. But even if it might have been

proper for each of the lineup participants to wear a ski mask like the one worn by

the perpetrator (United States v. Hinton (D.C. Cir. 1980) 631 F.2d 769, 774), there

is no authority supporting the proposition that they were required to do so. Even

assuming that the participants at the initial lineup should have worn ski masks

rather than knit caps, it would not establish defendant‟s right to a second pretrial

lineup. In considering the defendant‟s claim of a due process right to a pretrial


lineup in Evans, this court explained that the inquiry was not whether the receipt

of identification evidence at trial is so unfair to the accused as to infringe due

process but rather whether “the accused can insist that procedures be afforded

whereby the weakness of the identification evidence, if it is in fact weak, can be

disclosed.” (Evans, supra, 11 Cal.3d at pp. 621-622.) In this case, the original

lineup adequately revealed to the defense the weakness of the eyewitnesses‟

identifications, and defense counsel vigorously challenged the evidence during

cross-examination. The court observed, and we agree, that a second lineup would

do nothing to assist the defense in testing the reliability of the identifications. The

court did not abuse its discretion in denying defendant‟s request for a ski mask


3. Denial of the third request for substitution of counsel

The trial court granted defendant‟s requests to replace his first two appointed

counsel. Ten months before the commencement of trial, when defendant sought to

discharge his third attorney and substitute new counsel, the court denied the

motion. Defendant asserts that the trial court‟s refusal to grant his request for

substitution of counsel constituted an abuse of discretion. As we shall explain, the

court‟s ruling was neither an abuse of discretion nor did it violate defendant‟s

Sixth Amendment right to the effective assistance of counsel.

a. Background

In February 2000, the trial court conducted a pretrial hearing on various

motions. Defendant addressed the court directly with regard to one motion,

requesting an order for access to the law library. Defendant explained that he

needed library access in order to fully understand the proceedings and determine

which motions he had a right to file. He complained that his defense attorney,


Chuck Nacsin, had failed to properly advise him, advocate for him, and protect his


The trial court denied defendant‟s request for law library privileges on the

ground that it was counsel‟s role to present motions on defendant‟s behalf. The

court added that Nacsin was one of the most experienced criminal defense

attorneys in the county, and, in the court‟s view, always had demonstrated the

highest degree of professionalism and competence. The court also found,

however, that defendant‟s expression of dissatisfaction with Nacsin suggested that

he might be requesting substitution of counsel. The court excused the prosecutor

from the courtroom so that it could conduct a hearing pursuant to People v.

Marsden (1970) 2 Cal.3d 118.

At the hearing, defendant read into the record a written statement entitled

“Request for a Marsden Hearing,” which set forth numerous accusations against

Nacsin. Specifically, he claimed that counsel was attempting to “railroad” him by

refusing to provide discovery. He also complained that counsel refused to

interview the witnesses he had suggested and was not properly investigating issues

that defendant brought to his attention. For instance, defendant faulted counsel for

failing to follow up on evidence indicating that a defense investigator and

detectives from the Colton Police Department had sabotaged the investigation

because they knew the victim Fred Malouf and evidence that investigative officers

were threatening the witnesses. Defendant also complained that counsel refused to

file a motion for the release of police officer personnel files or to seek recusal of

the court and the prosecutor on the ground that they likewise knew Fred Malouf.

Defendant repeated his earlier allegations that Nacsin was not properly advising

him regarding his rights or working in his best interests. He also reiterated that he

had no trust or faith in counsel and accused him of conspiring with the police and

prosecutors to secure his conviction. Defendant complained finally that Nacsin


visited him only once every two to three months and that Nacsin‟s law office

refused to accept his collect calls.

When defendant had finished reading his written statement, he indicated to

the court that he was not actually making a Marsden motion at that time but rather

seeking discovery, which he would review, and then would present his Marsden

motion at a subsequent hearing. Counsel objected to defendant‟s having access to

discovery materials while in jail because of the risk that they would fall into the

hands of jailhouse informants. The court, however, directed counsel to provide

defendant with all discovery and the transcripts of all proceedings that had

occurred since his appointment as counsel of record.

The hearing on defendant‟s eventual Marsden motion occurred four months

later in June 2000. Defendant repeated his earlier complaints that counsel was

ignoring his requests to explore whether investigative officers were threatening the

witnesses and falsifying evidence. When the court asked Nacsin whether he had

discussed those subjects with defendant, he replied that he had done so “many

times.” Nacsin also indicated that he was pursuing everything he could pursue in

the case. Defendant responded that he did not know what counsel was doing. He

also asserted that when he and counsel discuss the case, they “collide” and he

cannot understand him. As defendant further explained, “I got to be able to trust

him, for us to have that attorney-client relationship. And I don‟t trust him because

I don‟t know . . . what he‟s doing.”

The court found no basis for ordering substitution of counsel at that time and

denied the Marsden motion without prejudice. In the court‟s view, defendant‟s

appointed counsel was “one of the more tenacious defense attorneys” to appear in

his courtroom over the past 20 years, and the court was certain that if there was

evidence suggesting that a witness had been threatened, counsel would vigorously

pursue that point during cross-examination. Defendant continued to express


frustration with attorney-client communications, saying that when he would ask

counsel certain things about the proceedings, he would come away even more

confused. He also disclosed, however, that he wanted an opportunity to see if he

and counsel could “come to some type of understanding” and “somehow see eye-

to-eye” before deciding to go through with his request for a new attorney.

Although the court invited defendant to renew his Marsden motion after he had an

opportunity to review additional discovery, defendant did not renew the motion.

b. Discussion

Defendant contends that the court‟s denial of his request for substitution of

counsel was an abuse of discretion because the complaints summarized, ante, were

emblematic of a difficult, unproductive relationship between him and his counsel,

which led to an irretrievable breakdown in their ability to work together that

substantially impaired his constitutional right to the effective assistance of

counsel. We disagree, as explained, post.

Established principles govern our assessment of whether the court abused its

discretion in denying defendant‟s Marsden motion. “Once a defendant is afforded

an opportunity to state his or her reasons for seeking to discharge an appointed

attorney, the decision whether or not to grant a motion for substitution of counsel

lies within the discretion of the trial judge. The court does not abuse its discretion

in denying a Marsden motion „ “unless the defendant has shown that a failure to

replace counsel would substantially impair the defendant‟s right to assistance of

counsel.” ‟ [Citations.] Substantial impairment of the right to counsel can occur

when the appointed counsel is providing inadequate representation or when „the

defendant and the attorney have become embroiled in such an irreconcilable

conflict that ineffective representation is likely to result [citation].‟ [Citations.]”

(People v. Clark (2011) 52 Cal.4th 856, 912.)


Contrary to defendant‟s contention, none of his various complaints

concerning counsel suggests an irreconcilable conflict between them. Defendant‟s

main grievance was that counsel refused to pursue his suggested motions and lines

of investigation. However, “ „[t]actical disagreements between the defendant and

his attorney do not by themselves constitute an “irreconcilable conflict.” ‟ ”

(People v. Roldan (2005) 35 Cal.4th 646, 682; accord, People v. Cole (2004) 33

Cal.4th 1158, 1192.) Although defendant complained that he did not know what

counsel was doing, counsel informed the court that he and defendant had

discussed defendant‟s suggestions “many times,” and that he was pursuing

everything he could. The court was entitled to credit counsel‟s representations in

this regard. (People v. Clark, supra, 52 Cal.4th at p. 912; People v. Smith (1993) 6

Cal.4th 684, 696.) Nor was an irreconcilable conflict shown by defendant‟s

assertions that he did not trust his attorney and “collided” with him when they

discussed the case. As we explained in People v. Jones (2003) 29 Cal.4th 1229,

“If a defendant‟s claimed lack of trust in, or inability to get along with, an

appointed attorney were sufficient to compel appointment of substitute counsel,

defendants effectively would have a veto power over any appointment, and by a

process of elimination could obtain appointment of their preferred attorneys,

which is certainly not the law.” (Id. at p. 1246; see also People v. Abilez (2007) 41

Cal.4th 472, 489.) Furthermore, “[a] trial court is not required to conclude that an

irreconcilable conflict exists if the defendant has not made a sustained good faith

effort to work out any disagreements with counsel . . . .” (People v. Crandell

(1988) 46 Cal.3d 833, 860.) Here, after defendant indicated his willingness to try

to “come to some type of understanding” with counsel, the court reasonably could

find that any asserted conflict between defendant and his attorney was not

irreconcilable. That conclusion was borne out by the fact that although the court‟s

denial of the request for substitution of counsel was without prejudice, defendant


did not renew his Marsden motion. As for defendant‟s complaint that counsel

rarely visited him, such an allegation does not justify substitution of counsel.

(People v. Hart (1999) 20 Cal.4th 546, 604.) We conclude that the trial court did

not abuse its discretion in denying the Marsden motion.

4. Disclosure of police officer personnel records

Defendant filed a pretrial motion for an order directing the prosecution to

provide the confidential personnel records of 10 law enforcement officers involved

in the investigation of the crimes and his postarrest confinement in county jail. He

argued that the prosecutor was obligated to disclose the identified records because

they amounted to favorable, material evidence within the meaning of Brady v.

Maryland (1963) 373 U.S. 83. At a hearing on the motion, the court indicated

that, in an abundance of caution, it found good cause to conduct an in camera

review of the personnel records in issue to determine whether any of them showed

complaints or disciplinary action involving improper conduct such as falsifying

evidence or testifying falsely, or any other potential impeachment material that

should be disclosed to the defense. (See Evid. Code, § 1043, subd. (b); Pitchess v.

Superior Court (1974) 11 Cal.3d 531; see generally People v. Gaines (2009) 46

Cal.4th 172, 179 [summarizing the state law procedures by which a defendant may

seek disclosure of police personnel records].) The court conducted separate in

camera hearings to review the files provided by the three different law

enforcement agencies involved. Neither defendant nor the prosecutor attended the


The court ordered that the reporter‟s transcripts of each of the three hearings

be sealed, but it announced its rulings in open court. Specifically, the court

indicated that it denied disclosure of the records of San Bernardino Police Officers

Voss and Filson and Colton Police Officers Morenberg, Owens, and Schiller,


finding nothing in their personnel files that was likely to lead to any admissible

impeachment evidence. The court ordered that defense counsel be provided

access to reports and handwritten notes by two San Bernardino Sheriff‟s deputies

who claimed they were injured in the incident involving defendant at the jail, but it

denied disclosure of the remaining files.

The transcripts of the in camera hearings that the court ordered sealed have

remained under seal. Noting that neither the transcripts nor the documents

reviewed by the trial court were made available to him or his appellate counsel,

defendant requests that this court conduct an independent review of these

materials. He asserts that such review is necessary to ensure that the trial court‟s

rulings did not infringe his right to due process. Respondent does not oppose the


“This court routinely independently examines the sealed records of such

in camera hearings to determine whether the trial court abused its discretion in

denying a defendant‟s motion for disclosure of police personnel records.

[Citations.]” (People v. Prince (2007) 40 Cal.4th 1179, 1285; accord, People v.

Chatman (2006) 38 Cal.4th 344, 398.) We have done so in this case.

The sealed record at issue here includes a full transcript of the three

in camera hearings, but not the actual personnel files that formed the basis of the

trial court‟s ruling barring disclosure of most of the requested materials. As

defendant points out, the trial court refused appellate counsel‟s suggestion to

include in the record on appeal the actual documents that it had reviewed during

the in camera hearings. We agree with the trial court‟s ruling that the transcript of

the hearings was sufficient. The sealed transcript that is before us, in which the

court “state[d] for the record what documents it examined,” is adequate for

purposes of conducting a meaningful appellate review. (People v. Mooc (2001) 26

Cal.4th 1216, 1229.)


Having independently reviewed the sealed records, we conclude that the trial

court‟s ruling refusing to disclose the requested personnel files except for the

portions relevant to the May 1997 jail incident that involved defendant was neither

an abuse of discretion nor a violation of defendant‟s due process rights. (Pitchess

v. Superior Court, supra, 11 Cal.3d at p. 535; People v. Salazar (2005) 35 Cal.4th

1031, 1042.)

B. Guilt Phase Issues

1. Evidence of witness dissuasion

Defendant claims that reversal is required because he was prejudiced by the

admission of evidence that a prosecution witness at trial of the restaurant crimes

had received a telephone call “from someone” that may have made her afraid to

testify. Although defendant is correct that the evidence could not be used by the

jury to infer his consciousness of guilt, there was a proper, albeit limited, purpose

for introducing the evidence and there is no merit to defendant‟s assertion that he

was incurably prejudiced by its admission, as we explain, post.

a. Background

Prosecution witness Karen King testified that for a two-week period in

February 1996, prior to the restaurant crimes, defendant stayed with her and her

boyfriend in the same Highland apartment complex where codefendant Rogers

resided. She told the jury that she recalled seeing a handgun in the apartment at

the time, although she could not confirm that it belonged to defendant. During

direct examination, the prosecutor asked the witness whether she was afraid to be

in court. She answered, “No.” The prosecutor then followed up by asking, “Did

you receive a phone call from someone?” The court sustained defense counsel‟s

hearsay and discovery objections. The prosecutor continued to question the

witness, eliciting from her that although she was initially fearful of testifying, she


was no longer afraid. At defense counsel‟s request, the court then conducted a

sidebar conference to discuss the objected-to evidence.

Outside the jury‟s presence, the prosecutor explained that the brother of

King‟s boyfriend had called to tell her “that it would be better for her if she did not

come to court and if she did not testify.” The court agreed with defense counsel

that the prosecutor should have disclosed this information to the defense before the

witness‟s testimony. When defendant‟s counsel further complained that the

prosecutor‟s line of questioning implied that defendant made a threatening

telephone call, the court suggested that defense counsel attempt to elicit from the

witness during cross-examination that the call was not from defendant or

codefendant Rogers. The court also indicated that, on request, it would instruct

the jury with CALJIC Nos. 2.05 and 2.06, regarding the requirements for

considering the suppression of evidence as tending to show a consciousness of

guilt. Defense counsel moved for mistrial, arguing that the admission of the

telephone call evidence denied defendant his federal constitutional guarantees,

including his rights to due process and to cross-examine the witnesses against him.

The court denied the motion, finding that any prejudice would be diffused by

cross-examination and a cautionary instruction expressly directing the jury not to

infer defendant‟s guilt from evidence of an effort to suppress evidence. The

prosecutor added that he attempted to present the telephone call evidence solely

for purposes of testing the witness‟s credibility.

Defense counsel introduced the telephone call evidence during cross-

examination, and elicited from King that neither defendant nor Rogers had called

her or had asked someone to call her. In response to defense counsel‟s question

whether she had been threatened, she replied, “Not threaten. Just told me it would

be best if I didn‟t testify.” King also indicated that she was as reluctant to be on


the witness stand as she had been to speak with investigating officers five years


Immediately following King‟s testimony on this point, the court instructed

the jurors that “the phone call was not made” by either defendant or the

codefendant, and informed them that “unless there was evidence to indicate they

told someone to do that, which at this point there is not, it cannot be considered

against either [of them].” The court also explained to the jury, however, that the

telephone call evidence could be considered in evaluating the credibility of the


The court instructed on the issue again before closing arguments, this time

affirmatively directing the jury not to consider evidence of an attempt to suppress

evidence “as tending to show any consciousness of guilt on the defendant‟s part.”

b. Discussion

We agree with the trial court that there was a proper, albeit limited, purpose

for the introduction of the evidence that someone called King attempting to

dissuade her from testifying, which was its effect on King‟s credibility as a

witness. The fact that King came to court and took the witness stand

notwithstanding the caller‟s advice tended to bolster her credibility. (See People

v. Guerra (2006) 37 Cal.4th 1067, 1142 [evidence that the defendant‟s sister

offered the witness money to refrain from testifying was relevant to evaluating the

witness‟s credibility]; cf. People v. Burgener (2003) 29 Cal.4th 833, 870 [“[i]t is

not necessarily the source of the threat — but its existence — that is relevant to the

witness‟s credibility”].)

Defendant argues that King‟s testimony was incurably prejudicial, and

deprived him of a fundamentally fair trial, because the very fact the threatening

call was made raised the inference that he had authorized it. His contention is


unpersuasive. As the record reflects, defense counsel affirmatively elicited from

King that the caller did not threaten her or state that he was speaking on

defendant‟s behalf, and the court instructed the jury that the telephone call

evidence could not be considered against either him or his codefendant. Under

these circumstances, “[w]e think it highly unlikely the jurors understood they

could infer defendant authorized or orchestrated [a] threat . . . .” (People v.

McKinnon (2011) 52 Cal.4th 610, 670 [relying on similar grounds to reject the

argument that evidence regarding the defendant‟s sister‟s attack on a prosecution

witness posed a danger that the jury would speculate that the defendant authorized

it].) Defendant suggests that the trial court “left the door open” for the jury to

infer that he was responsible for the threatening call when it instructed subsequent

to King‟s testimony that “at this point” there was no evidence connecting

defendant to the call. The record shows, however, that at the close of evidence the

trial court made clear to the jurors that they were not permitted to consider the

telephone call evidence as tending to show defendant‟s consciousness of guilt.

We presume jurors “generally understand and follow instructions.” (People v.

McKinnon, supra, at p. 670.)

Defendant complains nonetheless that the court‟s instruction directing the

jurors not to consider against him the evidence of the telephone call to King did

nothing to dispel the inference of consciousness of guilt. He urges this court to

adopt the reasoning and result of a 1974 decision by the Indiana intermediate

appellate court, which concluded that a new trial should have been granted in that

case because testimony by a prosecution witness about having received threats and

bribes was “so prejudicial to [the] defendant that no jury could be expected to

apply it solely to the question of the credibility of the witness.” (Keyser v. State

(Ind.Ct.App. 1974) 312 N.E.2d 922, 924.) Even were we to agree with the Keyser

decision that the prejudice to the defendant in that matter could not be cured by an


instruction to disregard the improper evidence, the case is readily distinguishable

from the present one in important respects. In Keyser, the prosecution‟s entire

case depended on the testimony of the witness who had been threatened. (Id. at

p. 924.) Here, by contrast, King‟s testimony played but a minor role in

establishing defendant‟s guilt of the restaurant crimes; at best, her testimony

showed only that two months before the crimes defendant was associating with

codefendant Rogers and carrying a firearm. In Keyser, furthermore, the reviewing

court intimated that the prosecutor‟s introduction of the improper testimony was

calculated to prejudice the defendant. (Ibid.) The telephone call evidence at issue

here, however, was admissible for the proper, limited purpose of assessing the

witness‟s credibility. Finally, in Keyser there was no evidence or instruction

advising the jury that the defendant was not involved in the attempted bribe and

threat. In this case, the court expressly instructed the jury that defendant had no

connection to the telephone call King received. Given the slight significance of

King‟s testimony and the absence of any evidence from which the jury could infer

that the telephone call was made at defendant‟s behest, we reject defendant‟s

assertion that the court‟s instructions were insufficient to overcome the assertedly

prejudicial effect of King‟s testimony on this point. The court did not abuse its

discretion in denying defendant‟s motion for mistrial, and its ruling allowing the

testimony for a limited purpose did not render defendant‟s trial fundamentally


2. Courtroom presence of the restaurant murder victim’s wife

Defendant claims that the court abused its discretion and deprived him of his

various constitutional rights when it allowed Donna, the restaurant murder

victim‟s wife, to remain in the courtroom after testifying for the prosecution.

There was no error.


a. Background

Prior to jury selection in the case, the court conducted a brief hearing on a

defense motion to exclude witnesses during the course of trial, and the court

agreed that witnesses should not hear the testimony of other witnesses prior to

testifying. The discussion, however, focused primarily on whether Donna Malouf

Lawrence, the homicide victim‟s wife and a percipient witness to the incident at

the restaurant, would be permitted to remain in the courtroom following her

testimony. After being informed that the prosecutor had advised Donna regarding

appropriate courtroom demeanor, the court indicated that it would exercise its

discretion to exclude from the courtroom any witness or spectator whose conduct

would prevent either side from receiving a fair trial. Nonetheless, defense counsel

expressed his concern that Donna‟s presence during the guilt phase would affect

the fairness of the possible penalty phase, at which Donna would be called to the

witness stand to give victim impact testimony. The court pointed out, however,

that the same concern was present in any death penalty case in which victim

impact witnesses were present during the guilt phase. In the court‟s view, once

Donna had testified, the rationale for excluding her from the courtroom no longer

existed. Although the court ruled that it would allow Donna to remain in the

courtroom following her testimony, it reiterated that if it came to the court‟s

attention that anyone in the courtroom engaged in inappropriate conduct, it would

not hesitate to exclude such person from the proceedings.

Without defense objection, Donna testified at the guilt phase of trial with the

assistance of a victim-witness advocate. At the prosecutor‟s request, the court

instructed the jury regarding the support person‟s presence and role.11


The court instructed, “Ladies and gentlemen, the law provides that an

alleged victim in a crime is allowed to have a support person with them in court

(footnote continued on next page)


Consistent with the court‟s earlier ruling, Donna remained in the courtroom

after completing her testimony, sitting in the front row. When the next

prosecution witness had answered several questions on direct examination,

defense counsel complained to the court outside the jury‟s presence that Donna

had been nodding her head in agreement with the witness‟s answers. The court

indicated that it had not observed Donna nodding her head, but suggested that she

be told to be more mindful of her gestures. The prosecutor informed the court that

he had done so. Although the court overruled defense counsel‟s objection to

Donna‟s presence, it stated it would monitor the situation and, if a problem arose,

it would recommend that Donna sit in the back of the courtroom.

Defense counsel renewed the objection to Donna‟s presence during the

testimony of a prosecution witness who was describing the shooting of the victim,

Fred Malouf. As counsel pointed out, Donna was crying and being held by her

support people, and he saw one of the jurors looking over at her and staring. The

court noted that it had been paying attention to Donna and agreed that she

appeared upset. It observed, however, that she was not making any disturbance.

In the court‟s view, her conduct was no different from that in any other case in

which family members of the victim exhibit some type of emotional reaction, and

she had a right to be in the courtroom.

b. Discussion

Defendant argues that the presence of a support person to assist Donna

during her guilt phase testimony, coupled with Donna‟s nodding her head in

(footnote continued from previous page)

during testimony. The support person is entitled to sit with them but is, obviously,
not the witness and is not going to participate in any manner.”


agreement with prosecution testimony and “emotional outbursts” during trial,

interfered with the jury‟s ability to deliberate and reach an unbiased verdict in

violation of his right to a fair trial, an impartial jury, and other constitutional

guarantees. Because defendant did not object when a victim-witness advocate

accompanied Donna to the witness stand, he has forfeited that portion of his claim.

(People v. Stevens (2009) 47 Cal.4th 625, 641.) We find no merit to his

contention in any event.

Defendant insists that he was prejudiced by the support person‟s presence on

the witness stand while Donna testified because it created a false and distorted

view of Donna‟s demeanor and tacitly vouched for the truth of her testimony. We

are not persuaded. Section 868.5 permits prosecution witnesses in cases involving

murder and other enumerated offenses to be attended in court by two support

persons, one of whom may accompany the witness to the stand. Absent improper

interference by the support person, however, no decision supports the proposition

that defendant advances here, that the support person‟s mere presence infringes his

due process and confrontation clause rights. “ „The presence of a second person at

the stand does not require the jury to infer that the support person believes and

endorses the witness‟s testimony, so it does not necessarily bolster the witness‟s

testimony.‟ [Citation.]” (People v. Stevens, supra, 47 Cal.4th at p. 641; see

People v. Ybarra (2008) 166 Cal.App.4th 1069, 1076-1079; People v. Patten

(1992) 9 Cal.App.4th 1718, 1725-1733.) Here, the record does not disclose any

circumstances indicating that Donna‟s support person improperly influenced the

jury‟s assessment of her testimony. (See People v. Patten, supra, at pp. 1731-

1732.) For instance, there is no description as to where the support person sat in

proximity to Donna and whether she had physical contact with Donna during her

testimony. Nor is there any indication that the support person displayed emotion

or gestures suggesting to the jury that she believed Donna‟s account of the


incident. (Patten, supra, at pp. 1732-1733.) Notably, the court informed the

jurors that Donna was entitled by law to be attended by a support person during

her testimony, and admonished them that the support person was “not the

witness.” This admonition, coupled with the court‟s instruction directing the jury

to base its decision in the case solely on the evidence received at trial and not to be

swayed by sympathy or prejudice, further undermines any suggestion of improper

interference by the support person. (People v. Ybarra, supra, at p. 1078.)

Defendant fails to show that he was prejudiced by the presence of a support person

during Donna‟s testimony.

Nor are we persuaded by defendant‟s argument that he was prejudiced further

by Donna‟s nodding in agreement with prosecution witnesses and crying in court

while being comforted by support persons. Defendant posits that such conduct

would have instilled in the jury powerful feelings of sympathy and revenge,

leading to verdicts on guilt and penalty that were based, not on the evidence

adduced at trial, but on emotion. His claim of prejudice is unsupported by the


A spectator‟s conduct is grounds for reversal if it is “of such a character as to

prejudice the defendant or influence the verdict.” (People v. Lucero (1988)

44 Cal.3d 1006, 1022; accord, People v. Chatman, supra, 38 Cal.4th at p. 369; see

also Holbrook v. Flynn (1986) 475 U.S. 560, 572 [spectator conduct violates the

federal Constitution if it is “so inherently prejudicial as to pose an unacceptable

threat to defendant‟s right to a fair trial”].) The trial court has broad discretion to

ascertain whether a spectator‟s actions were prejudicial. (People v. Chatman,

supra, at p. 369.)

There is no showing that Donna‟s presence in the courtroom following her

testimony prejudiced defendant. During the hearing on Donna‟s continued

courtroom presence, the court made clear its intention to exercise its discretion to


exclude any spectator whose conduct threatened the fair trial rights of either side.

When later informed by defense counsel that he had seen Donna nodding her head

in agreement with a prosecution witness, the court indicated that it would monitor

her demeanor. After defense counsel subsequently complained that one or more

jurors were watching Donna being comforted by support persons during another

witness‟s description of the shooting, the court stated that it had observed no

impropriety. The court acknowledged that Donna was upset but noted that she

was not making a disturbance. On this record, the court properly exercised its

discretion in overruling defense counsel‟s repeated objections to Donna‟s presence

in the courtroom. Having observed the courtroom proceedings firsthand, the trial

judge was in the best position to evaluate the impact of Donna‟s conduct in front

of the jury. (People v. Cornwell (2005) 37 Cal.4th 50, 87.)

Defendant cites a number of out-of-state decisions reversing the judgments

for spectator misconduct in support of his argument that the same result is

warranted here. We examined these identical cases in People v. Lucero, supra, 44

Cal.3d 1006. In rejecting the defendant‟s invitation to adopt the reasoning and

result from those decisions, we concluded that none involved the “single isolated

outburst” at issue there. (Id. at p. 1023.) We easily reach the same conclusion in

this case, in which the conduct in question is even farther afield from the

unrelenting, prejudicial disruptions at issue in the cited cases.

3. Circumstantial evidence instructions

Defendant contends he was denied due process because the court‟s

instructions explaining to the jury how to consider circumstantial evidence were

contrary to the requirement of proof beyond a reasonable doubt. We disagree.

The court instructed at the two guilt phases with CALJIC Nos. 2.01 and 8.83:

the sufficiency of circumstantial evidence to prove guilt and the special


circumstance allegations, respectively. In relevant part, both instructions informed

the jury that if one interpretation of the circumstantial evidence “appears to you to

be reasonable and the other interpretation to be unreasonable, you must accept the

reasonable interpretation and reject the unreasonable.”

Defendant faults the instructions in two respects. First, he argues that telling

the jurors they must accept a guilt interpretation of the evidence “that appears to

be reasonable” allows a finding of guilt based on proof less than beyond a

reasonable doubt. (Cage v. Louisiana (1990) 498 U.S. 39.) We have repeatedly

rejected the identical contention. “When the questioned phrase is read in context,

not only with the remaining language within each instruction but also together

with related instructions, including the reasonable doubt instruction, it is clear that

the jury was required only to reject unreasonable interpretations of the evidence

and to accept a reasonable interpretation that was consistent with the evidence.”

(People v. Crittenden (1994) 9 Cal.4th 83, 144; accord, People v. Brasure (2008)

42 Cal.4th 1037, 1058; People v. Romero (2008) 44 Cal.4th 386, 415.) Defendant

acknowledges our prior decisions and urges us to reconsider them. He offers no

persuasive reason to do so.

Defendant further criticizes CALJIC Nos. 2.01 and 8.83 for requiring the

jury to draw an incriminatory inference when such an inference merely appears to

be reasonable. Specifically, he argues that imposing on the jurors a duty to accept

an interpretation of evidence pointing to his guilt creates an impermissible

mandatory, conclusive presumption. (Carella v. California (1989) 491 U.S. 263,

265-266.) We repeatedly have rejected the same contention. (People v.

Crittenden, supra, 9 Cal.4th at p. 144; People v. Wilson (1992) 3 Cal.4th 926, 942-

943.) We do so again here for the reasons stated in those decisions.


4. Failure to instruct on voluntary intoxication

Defendant contends he was denied his state and federal rights to due process,

fair trial, and a reliable determination of guilt and penalty by the absence of

instructions explaining to the jury how voluntary intoxication may have affected

his ability to form the specific intent necessary for conviction of the restaurant

crimes. Defendant acknowledges that, absent a defense request, the trial court had

no duty to instruct on voluntary intoxication. (People v. Verdugo (2010) 50

Cal.4th 263, 295; People v. Saille (1991) 54 Cal.3d 1103, 1120.)

Even had defense counsel asked the court to give a voluntary intoxication

instruction, however, none was required because there was no substantial evidence

either that defendant was intoxicated or that intoxication affected his ability to

“actually form[] a required specific intent.” (§ 22, subd. (b); see People v. Roldan,

supra, 35 Cal.4th at p. 715; accord, People v. Williams, supra, 16 Cal.4th at

p. 677.) Lateshia Winkler testified that defendant was high when he returned to

her apartment around 10:00 p.m., after the incident at the restaurant. She further

explained on cross-examination that defendant was stumbling around and

“shermed out,” meaning that he was under the influence of PCP. During the same

line of questioning, however, Winkler also indicated that defendant was “acting

normal” before he left her apartment Saturday evening. Defendant points to no

evidence suggesting that he was intoxicated at the time of the crimes.

C. Penalty Phase and Sentencing Issues

1. Effect of antisympathy “instruction”

Defendant contends that his death sentence must be reversed because the

court‟s instruction misled the jury regarding the scope of its discretion in

determining penalty. We conclude that the jury was not misled.

The complained-of “instruction” was part of the court‟s introductory remarks

to prospective jurors during voir dire. The court provided an overview of the


principles governing the guilt phase of the trial, such as the presumption of

innocence and proof beyond a reasonable doubt. It also explained the rule that the

jury determine the facts of the case based on the evidence received at trial, stating

as follows: “It‟s a normal human reaction or a human emotion, you‟re going to be

here during the course of this trial through the various phases, we get to all of

those phases, for several weeks. . . . [Y]ou‟ll be seeing Mr. Rogers, Mr. Myles,

every day,” and their friends or family might be in the courtroom. Likewise, the

court pointed out, there might be friends or family of the victims, and a “normal

human reaction would be to have some feelings of sympathy” for them. The court

indicated, however, that “what we‟re going to be asking you to do as jurors is to

set aside any of those feelings of sympathy or empathy or compassion on either

side and make an objective decision based solely on the facts and the law that

I give you.” (Italics added.)

Emphasizing the italicized portion of the court‟s remarks, defendant contends

that the jury was impermissibly instructed not to consider sympathy during the

penalty phase. Specifically, he complains that by referring to “the course of this

trial through the various phases,” and indicating that “we get to all of those

phases,” the court led the jury to believe that its “no sympathy” admonition was

not limited to the determination of guilt. He argues that because the directive was

given before the presentation of any evidence in the case, including his penalty

phase witnesses, the jurors would have disregarded critical mitigating evidence,

which he was constitutionally entitled to have them consider.

Having examined the record as a whole, including the court‟s instructions,

we conclude that the jury was not misled into believing it could not consider

sympathy when determining penalty. (See People v. Frye (1998) 18 Cal.4th 894,

1025; People v. Howard (1988) 44 Cal.3d 375, 433-434; People v. Hernandez

(1988) 47 Cal.3d 315, 365-367.) At the penalty phase, before the presentation of


evidence, the court instructed the jury that it was “free to assign whatever moral or

sympathetic value” it deemed appropriate to each of the statutory factors it was

permitted to consider. Immediately after that, the court directed the jury to

“disregard any jury instruction given to you in the guilt or innocence phase of this

trial which conflicts with that principle.” The court made the same point again at

the conclusion of trial, prior to closing arguments, this time adding a directive to

disregard “any statements that may have been made during jury selection, where

we talked generally about some of the guidelines and principles.” Even assuming

for argument that at this juncture some jurors may have misunderstood the role of

sympathy in their penalty determination, the court‟s further instruction left no

doubt that it was a proper consideration. The court specifically informed the jury,

“You were previously instructed at the guilt phase of the trial that sympathy or

pity for the defendant should not influence your consideration of the evidence. In

this, the penalty phase of trial, the jury may properly consider sympathy or pity for

the defendant in determining whether to impose life in prison without the

possibility of parole.”

Defendant asserts that it is unreasonable to conclude that jurors could or

would disregard the “no sympathy” instruction. We disagree. In the course of

rejecting a claim similar to the one defendant raises here, we previously have

concluded that statements made at the time of jury selection did not “create such

an indelible impression” that jurors were unable to follow the court‟s subsequent,

specific instructions. (People v. Holt (1997) 15 Cal.4th 619, 662.) The same

conclusion is warranted here.12 (See also People v. Silva (1988) 45 Cal.3d 604,


Respondent argues that defendant has forfeited his claim of error because

he did not object below. Defendant counters that the forfeiture rule does not apply
when, as here, the court gives an instruction that incorrectly states the law.

(footnote continued on next page)


637 [jurors who were asked during voir dire whether they could set aside feelings

of sympathy would not have remembered or been guided by that question two

months later when making their penalty determination].)

2. Victim impact evidence

As previously described, two members of each murder victim‟s family

testified about their respective loved one‟s character and the effect that his death

had on them personally. Defendant claims that the victim impact evidence was

outside the proper scope of aggravating evidence and unrelated to his moral

culpability because there was nothing suggesting that he was aware of any aspect

of the victims‟ lives. Defendant acknowledges that we have repeatedly rejected

the argument that characteristics of the victim that are unknown to the defendant

should not be presented to the jury for its consideration at the penalty phase. (See

People v. Nelson (2011) 51 Cal.4th 198, 219, fn. 17; People v. Pollock (2004) 32

Cal.4th 1153, 1183.) He provides no persuasive reason for us to reconsider our

prior pronouncements on this issue.13

(footnote continued from previous page)

(People v. Hudson (2006) 38 Cal.4th 1002, 1012.) We previously have not
addressed whether a defendant is obligated to call to the trial judge‟s attention the
type of alleged error being asserted here. (See, e.g., People v. Howard, supra,
44 Cal.3d at pp. 433-434 [rejecting the defendant‟s claim on the merits
notwithstanding counsel‟s failure to object to the court‟s question to prospective
jurors whether they would be willing to set aside sympathy].) We need not decide
the forfeiture issue, however, because even if defendant‟s claim was preserved for
appeal, it clearly lacks merit on this record. (People v. Champion and Ross (1995)
9 Cal.4th 879, 908, fn. 6.)


For similar reasons, we reject defendant‟s further claim that the trial court

erred by refusing defense counsel‟s request that the jury be instructed not to
consider any victim impact evidence “unless it was foreseeably related to the
personal characteristics of the victim that were known to the defendant at the time

(footnote continued on next page)


3. Imposition of upper-term firearm enhancement

In connection with each of the murder and robbery counts the jury found true

the allegation that defendant personally used a handgun, within the meaning of

section 12022.5, subdivision (a)(1). That provision allows for an additional

sentence of 3, 4, or 10 years. The court imposed the upper term of 10 years for

each murder conviction and for one of the two robbery convictions.

Defendant asserts that sentencing him with these upper term enhancements

violated his Sixth Amendment jury trial right because none of the aggravating

factors on which the court relied to impose them had been found true by the jury

or admitted by him. (Cunningham v. California (2007) 549 U.S. 270; People v.

Sandoval (2007) 41 Cal.4th 825.) We agree with defendant that the court erred

when it selected the upper term enhancement on the Ricky Byrd murder count,

relying on facts not found by the jury. However, the error was harmless beyond a

reasonable doubt.

Apprendi v. New Jersey (2000) 530 U.S. 466 holds that, under the Sixth

Amendment, “any fact that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved beyond a reasonable

doubt.” (Apprendi, supra, at p. 490.) In Blakely v. Washington (2004) 542 U.S.

296, the high court extended the scope of Apprendi by defining “statutory

maximum” as the “maximum sentence a judge may impose solely on the basis of

the facts reflected in the jury verdict or admitted by the defendant.” (Blakely,

supra, at p. 303, italics omitted; see In re Gomez (2009) 45 Cal.4th 650, 656.)

Applying Blakely, the court later held in Cunningham v. California, supra, 549

(footnote continued from previous page)

of the crime.” Contrary to defendant‟s assertion, the trial court properly concluded
that the proposed instruction was an incorrect statement of law.


U.S. 270, that California‟s determinate sentencing law did not comport with a

defendant‟s Sixth Amendment jury trial right. As Cunningham explained, “If the

jury‟s verdict alone does not authorize the sentence, if, instead, the judge must find

an additional fact to impose the longer term, the Sixth Amendment requirement is

not satisfied.” (Id. at p. 290.) Because the aggravating circumstances necessary

for imposition of an upper term “depend on facts found discretely and solely by

the judge” (id. at p. 288), the “statutory maximum” prescribed in California‟s

sentencing scheme is not the upper term but rather the middle term. (Ibid.)

Decisions by this court have further clarified the interplay between Sixth

Amendment requirements and our determinate sentencing scheme. People v.

Black (2007) 41 Cal.4th 799 held in relevant part that imposition of the upper term

does not violate a defendant‟s jury trial right “so long as one legally sufficient

aggravating circumstance has been found to exist by the jury,” or “has been

admitted by the defendant.” (Id. at p. 816.) A companion case, People v.

Sandoval, supra, 41 Cal.4th 825 (Sandoval), established that the erroneous

imposition of an upper term is subject to federal harmless error analysis under

Chapman v. California (1967) 386 U.S. 18. (Sandoval, supra, at p. 838.)

In adding the firearm use enhancement to the sentence for the murder of

Ricky Byrd, the court chose the aggravated term “because of the use of two

firearms and multiple shots and lack of any provocation.” All of the identified

aggravating factors were based on the evidence of the underlying crime, and none

were established by the jury‟s verdict or admitted by defendant. (Sandoval, supra,

41 Cal.4th at pp. 837-838, 839.) We therefore agree with defendant that the court

violated his federal constitutional right to jury trial when it imposed the upper term

for this enhancement.

Defendant argues that the Cunningham/Black error was not harmless. Under

Sandoval, the pertinent inquiry is “whether, if the question of the existence of an


aggravating circumstance or circumstances had been submitted to the jury, the

jury‟s verdict would have authorized the upper term sentence.” (Sandoval, supra,

41 Cal.4th at p. 838.) “[I]f a reviewing court concludes, beyond a reasonable

doubt, that the jury, applying the beyond-a-reasonable-doubt standard,

unquestionably would have found true at least a single aggravating circumstance

had it been submitted to the jury, the Sixth Amendment error properly may be

found harmless.” (Id. at p. 839.)

Contrary to defendant‟s assertion, we conclude beyond a reasonable doubt

that the jury would have found true all of the aggravating circumstances stated by

the court had they been charged and submitted to the jury for its consideration.

Eyewitnesses to the Ricky Byrd murder testified consistently with one another that

when defendant yelled to their group from the backseat window of the car, asking

whether they would “give Smoke a message for him,” Ricky approached the car

and said, “Okay. What‟s the message?” They further testified that defendant then

pointed two guns out the window and fired twice. Defendant did not dispute this

evidence. Notably, he presented no defense case at the Byrd trial. Nor did

counsel challenge the evidence during closing remarks. Indeed, in the course of

arguing that defendant did not act with premeditation and deliberation, counsel

asserted that defendant asked the group “quickly, just, „Give Smoke a message,‟

and boom boom.” Counsel also argued that defendant had no intent to kill but

rather was firing madly at a parked car and happened to hit the victim as he was

ducking down behind it for protection after seeing the two guns. Given the

undisputed evidence regarding defendant‟s gun use, counsel‟s concessions, and

that the jury convicted defendant of first degree murder rather than a lesser

offense, we conclude beyond a reasonable doubt that, under the same standard, the


jury also would have found the aggravating circumstances that defendant used two

firearms, fired multiple shots, and had not been provoked.14

D. Constitutionality of California’s Death Penalty Scheme

Defendant presents numerous challenges to the constitutionality of

California‟s death penalty law that, as he acknowledges, are identical to those that

previously have been considered and rejected by this court. We decline his

request to reconsider our prior conclusions here. (People v. Schmeck (2005) 37

Cal.4th 240, 303.)


The heading of defendant‟s claim of Cunningham/Black error in his

opening brief refers to the court‟s imposition of upper term gun use enhancements
relating to two counts, the Ricky Byrd murder and the robbery of Krystal
Anderson. However, neither his opening brief nor the reply provides citation to
the record or legal argument concerning the Anderson robbery. For this reason,
we do not consider whether the court permissibly imposed the upper term
enhancement in connection with that count. (People v. Hovarter (2008) 44
Cal.4th 983, 1029 [if the appellate brief presents no legal argument on a point, the
reviewing court may treat it as waived and decline to consider it]; People v.
(2004) 33 Cal.4th 821, 846, fn. 9; People v. Stanley (1995) 10 Cal.4th
764, 793.)

We agree with defendant, however, that the abstract of judgment should be

corrected with regard to these two convictions and their gun enhancements, and
respondent does not argue otherwise. The reporter‟s transcript indicates that,
pursuant to section 654, the court stayed sentence on the Anderson robbery count
and its associated enhancements. With regard to the Ricky Byrd murder count, it
ordered that imposition of the gun use enhancement not be stayed. However, the
abstract of judgment reflects a stayed sentence, rather than 10 years, for the
enhancement on the Ricky Byrd murder count, and a term of 10 years, rather than
a stayed sentence, for the enhancement on the Anderson robbery. When an
abstract of judgment does not accurately reflect the trial judge‟s oral
pronouncement of sentence, this court has the inherent power to correct such an
error, either on our own motion or at the parties‟ behest. (People v. Mitchell
(2001) 26 Cal.4th 181, 185.) Accordingly, we order that the abstract of judgment
be corrected to conform to the sentences actually imposed by the court.


1. Aggravating and mitigating factors

Defendant asserts that California‟s capital sentencing statute, with its unitary

list of aggravating and mitigating factors, fails to guide the sentencer‟s discretion

in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments and their state

constitutional counterparts. We have concluded otherwise: Section 190.3 is not

constitutionally infirm for not specifying which factors are aggravating and which

are mitigating, for not limiting aggravation to the specified aggravating factors, or

for not defining the terms “aggravation” and “mitigation.” (People v. Lee (2011)

51 Cal.4th 620, 652; People v. Horning (2004) 34 Cal.4th 871, 913; People v.

Frye, supra, 18 Cal.4th at p. 1026.) Nor do these asserted deficiencies

impermissibly allow the jury to consider mitigating evidence, or its absence, in

aggravation. (People v. Jennings (2010) 50 Cal.4th 616, 690; People v. Page

(2008) 44 Cal.4th 1, 61.)15

Defendant further contends that section 190.3‟s aggravating and mitigating

factors violate the Eighth Amendment‟s proscription against the use of vague

factors in the penalty phase weighing process. (See Stringer v. Black (1992) 503

U.S. 222, 235.) We previously have rejected the same arguments defendant


Defendant complains that section 190.3‟s deficiencies also improperly

allowed the prosecutor to characterize his age as an aggravating factor and to
argue nonstatutory matters as evidence in aggravation. He has forfeited this
portion of his claim because he failed to object to the prosecutor‟s remarks.
(People v. Dykes (2009) 46 Cal.4th 731, 794.) In any event, there is no merit to
defendant‟s assertions. Age can be a factor in aggravation. (See People v.
(2011) 51 Cal.4th 1292, 1349, fn. 25.) Furthermore, according to the
record, the prosecutor told the jury that evidence of defendant‟s age is “not really
an aggravating or mitigating factor.” And although defendant complains that the
prosecutor relied on a nonstatutory factor when urging the jury to choose death
because defendant “is still part of society,” the quoted remark does not appear in
the reporter‟s transcript at the page number he cites, and our own review of the
record discloses no such argument.


presents here: Section 190.3, factor (a), which permits consideration of the

circumstances of the crime as an aggravating factor, is not impermissibly vague.

(People v. Mills (2010) 48 Cal.4th 158, 213-214; People v. Ervine (2009)

47 Cal.4th 745, 810; see Tuilaepa v. California (1994) 512 U.S. 967, 975-976.)

Moreover, neither the use of the adjective “extreme” in “extreme mental or

emotional disturbance” under factor (d), nor the absence of language explaining

that these identified circumstances are mitigating rather than aggravating, renders

that factor unconstitutionally vague. Nor does the same asserted deficiency

invalidate factor (h), regarding impairment due to mental disease, defect, or

intoxication. (People v. Griffin (2004) 33 Cal.4th 536, 598-599; People v. Kipp

(2001) 26 Cal.4th 1100, 1138; People v. Kelly (1990) 51 Cal.3d 931, 968-969.)

Finally, factor (i), the age of the defendant at the time of the crimes, is not

unconstitutionally vague merely because it may be considered as a factor in

aggravation or mitigation.16 (People v. Carrington (2009) 47 Cal.4th 145, 201-

202; People v. Lucky (1988) 45 Cal.3d 259, 302.) Defendant acknowledges that

the high court upheld the constitutionality of factors (a), (b), and (i) in Tuilaepa v.

California, supra, 512 U.S. 967. He asserts, however, that although discrete

factors may appear constitutional, the combined effect of all factors renders the

entire scheme unconstitutional. We have concluded to the contrary that section

190.3 as a whole is not impermissibly vague. (People v. Seaton (2001) 26 Cal.4th


Defendant presents a catch-all argument, contending without any legal

argument or explanation that all of the aggravating and mitigating factors are
unconstitutionally vague and arbitrary, and that the jury‟s consideration of them
results in unreliable sentences. We do not address the remaining factors. (People
v. Jones
(2003) 30 Cal.4th 1084, 1129; see also People v. Lindberg (2008) 45
Cal.4th 1, 51, fn. 14 [a matter asserted in a perfunctory manner is not properly


598, 688; People v. Box (2000) 23 Cal.4th 1153, 1217; People v. Williams, supra,

16 Cal.4th at pp. 267-268.)

2. Procedural safeguards

“The jury need not make written findings unanimously agreeing on the

existence of aggravating factors and concluding beyond a reasonable doubt that

the aggravating factors exist, that they outweigh the factors in mitigation, and that

death is the appropriate penalty.” (People v. Clark, supra, 52 Cal.4th at p. 1007.)

Nor is there a constitutional requirement that the jury be instructed on any burden

of persuasion with regard to the penalty determination. (People v. Gonzales and

Soliz (2011) 52 Cal.4th 254, 328.)

California‟s automatic appeals procedure is not unconstitutional on the

ground that it fails to provide for intercase proportionality review. (People v.

Garcia (2011) 52 Cal.4th 706, 764.)

Prosecutorial discretion in deciding whether or not to seek the death penalty

does not create a constitutionally impermissible risk of arbitrary outcomes that

differ from county to county. (People v. Bennett (2009) 45 Cal.4th 577, 629;

People v. Keenan (1988) 46 Cal.3d 478, 505.)

3. Narrowing function

The various special circumstances listed in section 190.2 that render a

murderer eligible for the death penalty are not so numerous or broad that they fail

to genuinely narrow the class of persons subject to capital punishment. (People v.

Vines, supra, 51 Cal.4th at p. 891.) More specifically, the felony-murder and

multiple-murder special circumstances adequately narrow the class of death

eligible murderers. (People v. Scott (2011) 52 Cal.4th 452, 496, People v.

Solomon, supra, 49 Cal.4th at p. 843; see also People v. Boyer, supra, 38 Cal.4th


at p. 483 [to categorize multiple murderers as especially deserving of the death-

penalty is neither arbitrary nor irrational].)

That the jury may consider the special circumstance finding as an

aggravating factor under section 190.3, factor (a), does not run afoul of the Eighth

Amendment‟s narrowing requirement. “[T]he aggravating and mitigating

circumstances referred to in section 190.3 do not and need not perform a

narrowing function.” (People v. Cornwell, supra, 37 Cal.4th at p. 102; see People

v. Mendoza, supra, 24 Cal.4th at p. 192.) Nor does consideration of a special

circumstance finding in aggravation permit the sentencer unbridled discretion that

is weighted in favor of death. (People v. Moon (2005) 37 Cal.4th 1, 40-41; People

v. Kipp, supra, 26 Cal.4th at p. 1137.) Nor does the use of a felony-murder

special-circumstance finding as an aggravating factor subject the defendant to a

greater likelihood of being sentenced to death than a defendant against whom

some other special circumstance allegation has been found true. (People v. Gates

(1987) 43 Cal.3d 1168, 1188-1189.)

E. International Law

Defendant contends that the denial of his state and federal rights to due

process and a fair and impartial trial in this case amounted to a violation of

customary international law as informed by instruments such as the Universal

Declaration of Human Rights, the International Covenant on Civil and Political

Rights, and the American Declaration of the Rights and Duties of Man, which

requires that his convictions and sentence be set aside. We reject the assertion.

“Because defendant has failed to establish prejudicial violations of state or federal

constitutional law, we need not consider whether such violations would also

violate international law.” (People v. Bolden (2002) 29 Cal.4th 515, 567; accord,

People v. Wallace (2008) 44 Cal.4th 1032, 1098.)


F. Cumulative Effect of Asserted Errors

Defendant argues that the cumulative impact of the asserted errors at the guilt

and penalty phases rendered his trial fundamentally unfair and deprived him of

other constitutional rights. Because we have concluded there was no error related

to the capital offenses or their punishment, there is nothing to cumulate and, in any

event, we reject his claim that any asserted cumulative effect warrants reversal.


We order that the abstract of judgment be corrected to conform to the trial

court‟s oral pronouncement that the Penal Code section 12022.5, subdivision (a),

gun use enhancement relating to count 1 (murder of Harry “Ricky” Byrd) is

10 years, and the Penal Code section 12022.5, subdivision (a), gun use

enhancement relating to count 3 (robbery of Krystal Anderson) is stayed. The

judgment is affirmed as so corrected.





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

Name of Opinion People v. Myles

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted


Opinion No.
Date Filed: April 26, 2012

County: San Bernardino
Judge: Michael A. Smith



John F. Schuck, under appointment by the Supreme Court, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Gary W. Schons, Assistant Attorney General, Annie Fraser, Jeffrey J. Koch and Holly D.
Wilkens, Deputy Attorneys General, for Plaintiff and Respondent.

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

John F. Schuck
Law Offices of John F. Schuck
4083 Transport Street, Suite B
Palo Alto, CA 94303
(650) 856-7963

Holly D. Wilkens
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 645-2197

The California Supreme Court unanimously affirmed the superior court conviction of John Myles for second degree robbery, unlawful possession of a firearm, and first degree murder with special circumstances of felony and multiple murder, along with the sentence of death. In denying the defendant's appeal, the Court held that defendant's pretrial motions for (1) severance of murder counts, (2) an additional live lineup, (3) substitution of counsel, and (4) disclosure of police records were properly denied; evidence of (5) witness dissuasion and (6) victim impact was properly admitted; the trial court's instructions on (7) circumstantial evidence, (8) voluntary intoxication, and (9) anti-sympathy were either proper or non-prejudicial; and (10) the only error - imposing an upper-term firearm enhancement based on judicial fact-finding - was harmless.

Opinion Information
Date:Citation:Docket Number:
Thu, 04/26/201253 Cal. 4th 1181, 274 P.3d 413, 139 Cal. Rptr. 3d 786S097189

Opinion Authors
OpinionChief Justice Tani Cantil-Sakauye

Brief Downloads
application/pdf icon
Appellant's Opening Brief.pdf (7000133 bytes) - Appellant's Opening Brief
application/pdf icon
Respondent's Brief.pdf (4120796 bytes) - Respondent's Brief
application/pdf icon
Appellant's Reply Brief.pdf (511489 bytes) - Appellant's Reply Brief
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
Jun 6, 2012
Annotated by Emily Korinek


Defendant John Myles was convicted by a jury of the first degree murder of Fred Malouf, along with his codefendant Tony Rogers, and of second degree robbery and unlawful possession of a firearm in connection with the same offense. Myles was then convicted by the same jury of the first degree murder of Ricky Byrd, which took place a week before the robbery. The facts as presented by the prosecution are as follows:

On April 11, 1996, Myles and his drug dealer companion requested a ride from one of the dealer's customers. Along the way, Myles twice requested that their driver pull over beside a group of men standing outside, the first time asking if anyone knew "Smoke," and the second time asking if they could "give Smoke a message." When one of the men, Ricky Byrd, agreed to do so, Myles fired two guns from the backseat, fatally wounding Byrd.

Nine days later, Myles and Rogers entered a restaurant with semiautomatic weapons and wearing beanies and ski masks, announcing a robbery. Myles took Donna Malouf, one of the restaurant's female employees who was dining there with her family, into the kitchen at gun point. Myles left her there with Rogers. The woman's husband, Frank Malouf, was a retired police officer who entered the kitchen and tried to take control of Rogers's gun. Rogers fired on him repeatedly, was shot himself, and then fled the restaurant. Myles was instructing other patrons to empty their pockets during this time.

Donna Malouf picked Myles's photograph from a photograph lineup and identified him, along with other patrons, at a live lineup conducted about a week later.

Procedural History:

The trial court jury convicted Myles of the first degree murder of Fred Malouf and the second degree robbery of two additional victims, and found true the special circumstance allegations that the murder was committed in the commission of robbery and that Myles personally used a handgun. The same jury then convicted defendant of the first degree murder of Harry “Ricky” Byrd in a subsequent proceeding, and found true the special circumstance allegation of multiple murder. After the penalty phase, the jury returned a verdict of death.

Defendant moved for new trial and for modification of his sentence to life without the possibility of parole. The trial court denied both motions and sentenced him to death. Appeal to the California Supreme Court was automatic.


Was the cumulative effect of the pretrial, guilt phase, and penalty phase errors asserted by defendant such as to render his trial fundamentally unfair?


No errors from the trial below to cumulate -- The trial court did not abuse its discretion in denying defendant's pretrial motions to sever the two murder counts, conduct a ski mask lineup, appoint substitute counsel, and disclose police personnel records. Evidence of witness dissuasion and victim impact was properly admitted and the presence of the murder victim's wife in the courtroom did not prejudice defendant. The instructions (or lack thereof) on circumstantial evidence, voluntary intoxication, and anti-sympathy were either proper or not prejudicial to defendant. The imposition of an upper-term firearm enhancement was error, but harmless beyond a reasonable doubt.


The Supreme Court took each of defendant's asserted errors in turn, with those it found most worth of discussion summarized below --

The trial court denied defendant's motion to sever trial on the Ricky Byrd murder charge from the restaurant incident, but did grant the alternative request to bifurcate the guilt trial and try the charges relating to the restaurant incident first. Because this permitted the jury to hear the potentially weaker of the two cases first, the Supreme Court agreed with the trial court that the procedure both "prevented the potential for prejudice and avoided the inefficiency of conducting separate trials."

The trial court properly denied defendant's motion for a second lineup wearing ski masks, because it "would do nothing to assist the defense in testing the reliability of the identifications." Four years earlier, several eyewitnesses had identified the defendant as the perpetrator from a lineup held 10 days after the second crime was committed and in which the participants wore black knit caps. Moreover, defense counsel had an opportunity to cross-examine all eyewitnesses (and draw out the fact that defendant's face was partially covered) at trial.

It was not an abuse of discretion for the trial court to deny the third motion for substitution of counsel, because none of defendant's complaints indicated an "irreconcilable conflict" between the defendant and his attorney. Myles indicated to the court that he was willing to try and get along with counsel and did not renew his motion after it was denied.

Following defendants request for disclosure, the trial court had reviewed the investigating police officers' personnel records in camera and determined that there was no impeachment evidence and the records should not be disclosed. On appeal, the Supreme Court reviewed the records of this in camera hearing and agreed with the trial court's determination, finding that denial was neither an abuse of discretion nor a violation of defendant's due process rights.

The admission of evidence that one of the prosecution's witnesses had received a threatening phone call, although potentially prejudicial, did not make defendant's trial fundamentally unfair. The evidence was admissible to bolster the witness's credibility, and the trial court expressly instructed the jury that defendant had no connection to the phone call and the evidence was not to be used to infer his guilt.

It was not error to allow the wife of one of the murder victims to remain in the courtroom following her testimony for the prosecution. The trial record showed that the court was at all times observant of her demeanor and its effect on the jury, and there was no evidence of outburst or disruption, despite the fact that she was visibly upset at times.

No jury instruction on voluntary intoxication was warranted because (1) it was the defendant's burden to request such an instruction and (2) there was no substantial evidence that the defendant was intoxicated.

It was error for the trial court to impose the maximal enhancement for possession of a firearm in connection with the Ricky Byrd murder count, because the court in doing so relied on facts not found by the jury. However, the error was harmless beyond a reasonable doubt because the jury would have found true all of the aggravating circumstances if the question of their existence had been submitted to them.

The Court cursorily dismissed defendant's argument that the California death penalty scheme is unconstitutional, with defendant acknowledging that the issues raised had all been previously considered and rejected by the Court. The Court concluded that there was no error related to the capital offenses and their cumulative impact could therefore not have rendered defendant's trial fundamentally unfair.

Tags: capital murder, death penalty, Harmless error, lineup, multiple murder, substitution of counsel, voluntary intoxication, firearm enhancement

Related Cases:

Cunningham v. California, 549 U.S. 270 (2007).

People v. Thomas, 269 P.3d 1109 (Cal. 2012).
People v. McKinnon, 259 P.3d 1186 (Cal. 2011).
People v. Sandoval, 161 P.3d 1146 (Cal. 2007).
Evans v. Superior Court, 522 P.2d 681 (Cal. 1974).
People v. Marsden, 465 P.2d 44 (Cal. 1970).

Keyser v. Indiana, 312 N.E.2d 922 (Ind. App. 1974).

by Emily Korinek