IN THE SUPREME COURT OF CALIFORNIA
Plaintiff and Respondent,
Los Angeles County
EVAN TEEK NAKAHARA,
Super. Ct. No. NA000163
Defendant and Appellant.
Defendant Evan Teek Nakahara appeals from a judgment of the Los
Angeles County Superior Court imposing the death penalty following his
conviction of first degree murder (Pen. Code, § 187),1 burglary (§ 459), and
robbery (§ 211), accompanied by special circumstance findings that he committed
the murder while lying in wait (§ 190.2, subd. (a)(15)), and while engaged in the
commission of burglary (id., former subd. (a)(17)(i)) and robbery (id., former
subd. (a)(17)(vii)). The jury also found defendant used a firearm (§§ 1203.06,
12022.5) but was not personally armed (§ 12022) during these crimes.
Defendant’s appeal is automatic. (§ 1239, subd. (b).) As will appear, we will
affirm the judgment in its entirety.
All further statutory references are to the Penal Code.
Defendant and Michael Rojas were jointly charged with murdering Beatrice
Viveiros on July 11, 1989. The trial court ordered the cases severed for trial. The
evidence in the present case showed that defendant had been dating Viveiros for
several years, and had admired a gun collection owned by her father. Defendant
had earlier joked with his friend Edwin Skinner about planning to steal the guns
and “doing away” with Viveiros after the theft. On the day of the murder,
defendant and Rojas visited Viveiros’s house around 1:15 p.m. and defendant
asked her to help him back his car into the garage and empty his car trunk. After
the job was done, Viveiros closed the garage door on his car, angering him.
According to Viveiros’s friend Kim Austin, when Austin left at 2:45 p.m.,
Viveiros was alive and in the company of defendant and Rojas. Viveiros’s father
arrived at the house around 4:30 p.m. and found his daughter’s lifeless body on a
hallway floor. His guns were missing, along with various war memorabilia such
as pins, certificates and war ration cards. Viveiros had been shot three times in the
back and once beneath her left ear; each wound probably would have been fatal.
On the same day, around 3:34 p.m., defendant asked a friend’s sister, Debra
Helm, if her brother would be interested in buying some guns, and she said “no.”
Later, between 5:00 and 6:00 p.m., defendant called his friend Steven Jurich and
asked if he knew anyone who wanted to buy a gold-plated Winchester rifle.
Jurich, not knowing of Viveiros’s death, told defendant he knew no one who
might be interested. Around the same time, John Calvert arrived at defendant’s
house. Defendant showed him the guns and admitted shooting a girl three times at
point-blank range. Defendant also told Calvert that Rojas shot her one time.
Thereafter, defendant approached his uncle, Todd Kawabata and sold him some of
the war memorabilia he had taken. Defendant also visited his friend Mitch
Zankich and offered to sell him some guns, but Zankich declined the offer.
Investigating officers went to defendant’s apartment and discovered a large
collection of weapons later identified as belonging to Viveiros’s father. Defendant
and Calvert were arrested and placed in custody. Defendant, after first denying
involvement, eventually told interrogating officers that he shot Viveiros following
a quarrel over some bad checks she had deposited to his account. Defendant
admitted taking the guns to make the shooting appear to be motivated by robbery.
At the penalty phase, the prosecution introduced evidence that in October
1989, prison guards found a 12-inch metal shank concealed in defendant’s cell.
The defense offered various background and character witnesses including a
cultural anthropologist, defendant’s parents, and his uncle. This evidence tended
to show that defendant had a difficult childhood, and was raised by a passive,
nonnurturing father and an overly strict mother, resulting in defendant’s
depression and aggressive personality. Defendant himself testified (against advice
of his counsel), cautioning the jury that persons serving life terms often get into
more trouble, and telling them he would choose the death penalty if the decision
were up to him. He explained on cross-examination that he sought a death penalty
because he was “worn out” with the court proceedings.
II. GUILT PHASE ISSUES
A. Murder Instructions
The information charged defendant with premeditated and deliberate
murder under section 187, subdivision (a). At the close of the guilt phase, the jury
was instructed on premeditated murder, felony murder, and murder by lying in
wait. Defendant faults the instructions for their failure to require unanimous
agreement, beyond a reasonable doubt, as to which of these theories the jury
accepted. According to defendant, the omission denied him due process, a verdict
rendered beyond a reasonable doubt, and a reliable guilt determination under the
state and federal Constitutions. We discern no error.
Defendant, citing language in People v. Dillon (1983) 34 Cal.3d 441, 479,
footnote 26 (plur. opn. of Mosk, J.), finds “confusing” our prior decisions
regarding the relationship between premeditated murder and felony murder. But
our recent cases have clarified any confusion, holding that although the two forms
of murder have different elements, only a single statutory offense of murder exists.
Felony murder and premeditated murder are not distinct crimes, and need not be
separately pleaded. (E.g., People v. Hughes (2002) 27 Cal.4th 287, 369; People v.
Kipp (2001) 26 Cal.4th 1100, 1131; People v. Silva (2001) 25 Cal.4th 345, 367;
People v. Carpenter (1997) 15 Cal.4th 312, 394-395.) As for defendant’s claim
that a unanimity instruction should have been given, our cases have repeatedly
rejected this contention, holding that the jurors need not unanimously agree on a
theory of first degree murder as either felony murder or murder with premeditation
and deliberation. (E.g., Kipp, supra, 26 Cal.4th at p. 1132; People v. Lewis (2001)
25 Cal.4th 610, 654; People v. Box (2000) 23 Cal.4th 1153, 1212; People v. Riel
(2000) 22 Cal.4th 1153, 1200.)
We are not persuaded otherwise by Apprendi v. New Jersey (2000) 530
U.S. 466. There, the United States Supreme Court found a constitutional
requirement that any fact that increases the maximum penalty for a crime, other
than a prior conviction, must be formally charged, submitted to the fact finder,
treated as a criminal element, and proved beyond a reasonable doubt. (Id. at pp.
476-490.) We see nothing in Apprendi that would require a unanimous jury
verdict as to the particular theory justifying a finding of first degree murder. (See
also Ring v. Arizona (2002) 536 U.S. 584, 610 [requiring jury finding beyond
reasonable doubt as to facts essential to punishment].)
B. Consciousness of Guilt Instruction
Evidence at trial showed that during his interrogation defendant initially
denied complicity in the Viveiros offenses. The court instructed the jury that it
could consider any false statements made by defendant as evidence of his
consciousness of his guilt of the charged offenses, although such conduct alone is
insufficient to prove guilt, and its weight and significance, if any, are matters for
the jury. (See CALJIC No. 2.03.) Defendant now contends the instruction was
impermissibly argumentative and improperly allowed the jury to make irrational
inferences regarding his mental state during the commission of the offenses.
As defendant acknowledges, we have rejected similar arguments in prior
cases. (People v. Kipp (1998) 18 Cal.4th 349, 375, and cases cited; People v.
Jackson (1996) 13 Cal.4th 1164, 1223-1224; People v. Rodrigues (1994) 8 Cal.4th
1060, 1140-1141; People v. Bacigalupo (1991) 1 Cal.4th 103, 128.) We see no
reason to reconsider the soundness of these decisions. Defendant relies on People
v. Mincey (1992) 2 Cal.4th 408, but that case is inapposite for it involved no
consciousness of guilt instruction but merely deemed improper and unduly
argumentative a proposed defense instruction that would have invited the jury to
“infer the existence of [the defendant’s] version of the facts, rather than his theory
of defense.” (Id. at p. 437.)
C. Reasonable Doubt and Related Instructions
Defendant finds asserted defects in various instructions outlining the
People’s burden of proof. These claims lack merit.
The court gave several related instructions (CALJIC Nos. 2.01, 2.02, and
8.83) essentially telling the jurors they had a duty to accept the reasonable
interpretation of evidence and reject the unreasonable interpretation. Defendant
asserts that these instructions were contrary to the basic “beyond a reasonable
doubt” principle and enabled the jurors to find him guilty “if he reasonably
appeared guilty,” regardless of any reasonable doubt they might entertain.
Defendant characterizes these instructions as creating “an impermissible
mandatory conclusive presumption of guilt,” in cases in which a reasonable
interpretation of evidence points toward guilt. Defendant believes these
instructions “had the effect of reversing the burden of proof,” requiring the jury to
find him guilty unless he came forward with reasonable evidence of his innocence.
As the Attorney General correctly observes, we have recently rejected these
contentions, and we see no reason to reconsider them. (People v. Riel, supra, 22
Cal.4th at p. 1200; People v. Millwee (1998) 18 Cal.4th 96, 160; People v.
Crittenden (1994) 9 Cal.4th 83, 144.)
Defendant also suggests that other instructions (CALJIC Nos. 1.00
[defendant’s arrest and prosecution not used to infer he is “more likely to be guilty
than not guilty”] and 2.51 [presence of motive may establish guilt]) misled the jury
by failing to reiterate that the central issue in the case was not simply guilt or
innocence, but whether guilt had been demonstrated beyond a reasonable doubt.
Again, we have recently rejected the argument. (People v. Frye (1998) 18 Cal.4th
Defendant argues that another instruction (CALJIC No. 2.21.2)
“impermissibly lightened” the People’s proof burden by telling the jury it should
distrust, and could reject, the entire testimony of a witness who has given willfully
false material testimony, unless the jury believes that “the probability of truth”
favors the testimony. Defendant contends this instruction “allowed the jury to
assess prosecution witnesses by seeking only a probability of truth in their
testimony.” But as we have held, the targeted instruction says no such thing.
(People v. Hillhouse (2002) 27 Cal.4th 469, 493; People v. Riel, supra, 22 Cal.4th
at p. 1200.)
Defendant complains of an instruction (CALJIC No. 2.22) advising the
jurors to evaluate the evidence by looking at its “convincing force” rather than the
“relative number” of testifying witnesses. Defendant argues that the instruction
improperly “replaced” the beyond reasonable doubt standard with a standard akin
to a preponderance of evidence standard. Although we have not considered the
point, we adopt the reasoning of Court of Appeal cases holding that CALJIC No.
2.22 is appropriate and unobjectionable when, as here, it is accompanied by the
usual instructions on reasonable doubt, the presumption of innocence, and the
People’s burden of proof (see CALJIC No. 2.90). (People v. Clay (1984) 153
Cal.App.3d 433, 461-462; People v. Salas (1975) 51 Cal.App.3d 151, 155-157.)
Finally, defendant challenges an instruction (CALJIC No. 8.20) advising
the jury that premeditation and deliberation “must have been formed upon pre-
existing reflection and not under a sudden heat of passion or other condition
precluding the idea of deliberation . . . .” (Italics added.) Defendant suggests that
the word “precluding” is too strong and could be interpreted as requiring him to
absolutely preclude the possibility of deliberation, as opposed to merely raising a
reasonable doubt on that issue. We have recently approved the foregoing
instruction without specifically considering defendant’s point. (See People v.
Catlin (2001) 26 Cal.4th 81, 148, 151.) We think that, like CALJIC No. 2.22, this
instruction is unobjectionable when, as here, it is accompanied by the usual
instructions on reasonable doubt, the presumption of innocence, and the People’s
burden of proof. These instructions make it clear that a defendant is not required
to absolutely preclude the element of deliberation.
We conclude that defendant’s multifaceted challenge to the court’s
reasonable doubt and related instructions lacks merit.
D. “Acquittal First” Instructions
The court instructed the jury on first and second degree murder and
manslaughter, explaining that the court could not accept a guilty verdict on second
degree murder unless the jury first unanimously found defendant not guilty of first
degree murder, and similarly could not accept a manslaughter verdict without an
initial unanimous finding that he was not guilty of first or second degree murder.
(CALJIC Nos. 8.75, 17.10.) Defendant now argues these instructions violated his
constitutional right to full consideration of all lesser offenses, because “[a] jury
which is deadlocked on the charged offense must be permitted to render a verdict
(either conviction or acquittal) on a lesser offense, if they are able to do so.”
As the Attorney General correctly observes, we have frequently rejected
this and similar contentions. (People v. Riel, supra, 22 Cal.4th at pp. 1200-1201;
see People v. Fields (1996) 13 Cal.4th 289, 308-311; People v. Mickey (1991) 54
Cal.3d 612, 672-673.) We see no reason for reconsidering these decisions.
III. PENALTY PHASE ISSUES
A. Voluntariness of Defendant’s Narrative Testimony and Supposed
“Waiver” of Counsel
As previously noted, defendant testified at the penalty phase, against the
advice of his counsel. He cautioned the jurors that persons serving life terms often
get into more trouble, and told them he would choose the death penalty if the
decision were up to him. Defendant now complains that the trial court failed to
determine whether he made a knowing and voluntary decision to waive counsel
and testify against counsel’s advice. He also argues the trial court failed
adequately to caution him against giving narrative testimony. These contentions
The record shows that, once defense counsel indicated that defendant
intended to testify against his advice, the court held a brief hearing to discuss the
matter with defendant. The court first explained to him that although he had the
right to testify, he might want to reconsider rejecting his counsel’s advice. The
court explained that defendant would be subject to cross-examination and limited
as to the scope of his testimony. The court then gave him four hours to reconsider
At the close of presentation of other defense witnesses, the court revisited
the issue, observed again that defendant’s counsel advised him against testifying,
and explained that he would be subject to cross-examination. Defendant remained
adamant that he wished to testify. The prosecutor, evidently concerned about
possible appellate claims of incompetent counsel, suggested the court hold a
“Marsden-type hearing” outside his presence. (See People v. Marsden (1970) 2
Cal.3d 118, 123-124.)
Thereafter, outside the prosecutor’s presence, defense counsel explained to
the court that his client had not indicated what he intended to say, and that counsel
was “concerned” defendant might say something “negative” that could be
exploited on cross-examination. Counsel, although not agreeing to defendant’s
tactic, advised him to testify in narrative form, without any questioning from
defense counsel, as counsel had no idea what the testimony would be. The court
asked defendant if he wished to comment regarding his proposed testimony, and
he replied “[n]ot personally.” The court asked defendant whether he believed he
needed the court’s or counsel’s assistance to help him make his statement, or
whether he could present it without such assistance. He replied, “Yeah.”
Following some inaudible whispered conversation between defendant and
the court, the prosecutor returned to the courtroom and defendant made his
narrative statement as described above.
As noted, defendant now contends the court failed to determine whether he
made a knowing and voluntary waiver of his right to counsel. Of course, any such
“waiver,” and the consequent absence of counsel, was limited to defendant’s
narrative statement itself, as his counsel was fully available before and after the
statement was given, including cross-examination. Defendant also complains of
the court’s failure specifically to advise him of his right to counsel’s assistance
during his testimony, of the dangers of narrative testimony, and of counsel’s
ability to conduct the direct examination himself, rather than permitting defendant
to make a narrative statement.
Our review of the proceedings leads us to conclude that the trial court
adequately and repeatedly admonished defendant regarding his refusal to follow
counsel’s advice and the dangers of taking the stand and testifying, and that the
court committed no error in allowing defendant to exercise his right to address the
jury. Defendant had “a fundamental right to testify in his own behalf, even if
contrary to the advice of counsel. [Citation.]” (People v. Guzman (1988) 45
Cal.3d 915, 962 (Guzman); accord, Rock v. Arkansas (1987) 483 U.S. 44, 49-53;
People v. Webb (1993) 6 Cal.4th 494, 534-535.) Seen in this light, defendant at no
time before, after, or during his narrative testimony “waived” his right to counsel’s
assistancehe merely exercised his fundamental right to testify.
Defendant observes that in Guzman, the trial court gave the defendant a
panoply of additional warnings prior to his narrative testimony, advising him that
his testimony would be subject to evidentiary objections, impeachment through
prior convictions, and possible adverse inferences if he failed to explain or deny
negative evidence. The court also explained to the defendant that he had a
constitutional right not to testify and that no adverse inferences could be drawn
from his silence. (Guzman, supra, 45 Cal.3d at pp. 941-942.) We note, however,
that nowhere in our Guzman opinion did we suggest that such an array of
admonishments was a necessary or constitutional prerequisite to receiving a
defendant’s testimony against advice of counsel.
We explained in Guzman that because counsel’s assistance was, as here,
available during all other stages of trial, “it was not necessary that the trial court’s
warnings about the dangers of self-representation be as complete as would be
necessary for a defendant who sought to conduct his entire defense.” (Guzman,
supra, 45 Cal.3d at p. 946.) Here, as previously observed, defendant’s counsel
understandably suggested that defendant testify in narrative form without defense
questioning, because counsel lacked any knowledge of what his client planned to
We conclude the trial court did not err in failing more extensively to warn
defendant regarding the various rights he would forgo in testifying in narrative
form, or to secure an express waiver of those rights.
B. Failure to Conduct Extensive Marsden Hearing
In a related argument, defendant contends the court erred in failing to hold
a more extensive Marsden hearing to inquire regarding a possible breakdown in
defendant’s relationship with his counsel resulting from counsel’s advice not to
testify at the penalty phase. In Marsden, we held that a criminal defendant has a
right to substitute counsel on a proper showing that his constitutional right to
counsel would otherwise be substantially impaired. (People v. Marsden, supra, 2
Cal.3d at p. 123.) We also held that the defendant is entitled to present evidence
or argument on the matter of substitute counsel, assuming he has clearly indicated
that he wants a substitute. (Id. at pp. 123-124; see People v. Mendosa (2000) 24
Cal.4th 130, 157; People v. Lucky (1988) 45 Cal.3d 259, 281, fn. 8.)
The Attorney General correctly observes that defendant failed to question
his counsel’s competence or to request a hearing on the matter. Our review of the
record shows only that before testifying, defendant was adamant about doing so,
contrary to his counsel’s advice, without explaining why, and without requesting
new counsel or a hearing on the matter. Only after testifying, and after all penalty
phase evidence had been presented, did defendant write a letter to the court
complaining of a “conflict of interest” with his counsel arising from some phone
calls defendant claimed he never made, and accusing counsel of not providing him
with “paperwork” involving some witnesses, matters not shown to be critical to
the defense. In this letter, defendant also indicated that counsel seemed
“uninterested” in reading defendant’s own notes taken from the preliminary
hearing transcript, that counsel conferred with defendant only “at court,” and that
defendant was “extremely exhausted both mentally and physically” and unable to
follow all of the trial testimony.
The trial court responded to the foregoing letter by telling defendant that
disagreements with counsel over trial tactics often occur, and that nothing in
defendant’s letter afforded a ground for relief, although he could raise such
matters in a motion for new trial at the conclusion of the case. No such motion
Defendant now asserts that the trial court erred in failing to hold an
additional hearing to explore whether to order a substitution of counsel prior to
presentation of closing arguments. He relies primarily on the fact that defense
counsel indicated he opposed defendant’s decision to testify, having no knowledge
of the nature of his proposed testimony, but we have held that such a “conflict”
regarding tactical matters neither justifies substitution of counsel nor signals a
fundamental breakdown in the attorney-client relationship. (People v. Welch
(1999) 20 Cal.4th 701, 728-729; People v. Lucky, supra, 45 Cal.3d at p. 282.) As
for the vague allegations in defendant’s letter, at most they reflect a difference of
opinion over trial tactics and some generalized complaints regarding counsel’s
performance, rather than a request for new counsel based on specific facts
showing a deterioration of the attorney-client relationship. (See People v. Padilla
(1995) 11 Cal.4th 891, 926-927; People v. Lucky, supra, 45 Cal.3d at pp. 281-
283.) We conclude the court did not err in failing to hold a more extensive
Marsden hearing at close of trial.
C. Effect of Defendant’s Testimony on the Jury’s Verdict
Defendant next argues that his own testimony (“if it was my choice, not the
jurors, I would have picked the death penalty”) rendered the ensuing death
judgment constitutionally unreliable. As previously noted, however, every
defendant in a death case has the right to testify, even if contrary to counsel’s
advice, and even if that testimony indicates a preference for the death penalty.
(People v. Webb, supra, 6 Cal.4th at pp. 534-535; Guzman, supra, 45 Cal.3d at pp.
961-963.) Defendant gives us no reason to reconsider those decisions. The jurors
in this case were properly instructed that their duty was to decide the appropriate
penalty, based on the law and the evidence, and defense counsel’s closing
arguments confirmed that principle and expressed skepticism about defendant’s
asserted preference for death. We find no error in permitting defendant to testify
as to his preference for the death penalty.
D. Instructions Concerning Deadly Weapon in Jail Cell
The prosecutor introduced evidence that defendant hid a metal “shank” in
the corner of his jail cell. Accordingly, the trial court instructed the jury at the
penalty phase that evidence had been introduced to show defendant committed a
crime by bringing a deadly weapon into the county jail, conduct that “involves the
implied use of force or violence or the threat of force or violence.” The instruction
further stated that before a juror could consider such activity as an aggravating
circumstance (see § 190.3, factor (b)), that juror must find beyond a reasonable
doubt that defendant did in fact commit the crime. (See CALJIC No. 8.87.)
Although defendant now argues that possession of a weapon in his cell does not
constitute an implied threat of violence under section 190.3, we have held
otherwise. (People v. Smithey (1999) 20 Cal.4th 936, 1002; People v. Tuilaepa
(1992) 4 Cal.4th 569, 589; People v. Ramirez (1990) 50 Cal.3d 1158, 1186-1187.)
Defendant offers no reason for reconsidering these decisions.
Defendant also complains that the court took the issue of implied threat out
of the jury’s hands, and created an improper “mandatory presumption” by
instructing that evidence had been introduced that the shank incident “involv[ed]
the implied use of force or violence or the threat of force or violence.” As
defendant observes, this instruction left it to the jurors to decide only whether,
beyond a reasonable doubt, the incident in fact occurred.
We recently held that CALJIC No. 8.87 is not invalid for failing to submit
to the jury the issue whether the defendant’s acts involved the use, attempted use,
or threat of force or violence. (People v. Ochoa (2001) 26 Cal.4th 398, 453.) The
question whether the acts occurred is certainly a factual matter for the jury, but the
characterization of those acts as involving an express or implied use of force or
violence, or the threat thereof, would be a legal matter properly decided by the
Contrary to defendant’s argument, the instruction given here did not advise
the jury that defendant’s conduct amounted to an actual or express threat of
violence, and no danger existed the jury would assume that an actual threat was
made in this case. As the evidence made clear, defendant’s illegal conduct
amounted to possessing a shank in his cell, conduct that is properly deemed an
implied threat of violence. (See People v. Smithey, supra, 20 Cal.4th at p. 1002.)
As noted, the court’s instruction left it to the jury to decide whether, beyond
a reasonable doubt, defendant possessed a shank in his cell. The court declined to
reread the definition of “reasonable doubt,” but did instruct that all relevant guilt
phase instructions still applied, and that the jury could have copies of those
instructions for its use on request. Defendant argues that the court erred in failing
to reinstruct on the definition and concept of reasonable doubt (see CALJIC No.
2.90), for purposes of considering the “other crimes” evidence. Our cases have
rejected this argument. (See People v. Bolin (1998) 18 Cal.4th 297, 342, and cases
cited; People v. Payton (1992) 3 Cal.4th 1050, 1068-1069.)
E. Validity of Lying-in-Wait Special Circumstance
Defendant next argues that the lying-in-wait special circumstance (§ 190.2,
subd. (a)(15)) is invalid for failure to sufficiently narrow the class of persons
eligible for death and to provide a meaningful basis for distinguishing the few
cases in which death is imposed from the many cases in which it is not. (See
Furman v. Georgia (1972) 408 U.S. 238, 313 (conc. opn. of White, J.).) We have
repeatedly rejected this contention, and defendant fails to convince us the matter
warrants our reconsideration. (See People v. Hillhouse, supra, 27 Cal.4th at p.
510; People v. Frye, supra, 18 Cal.4th at p. 1029; People v. Crittenden, supra, 9
Cal.4th at pp. 154-156; People v. Morales (1989) 48 Cal.3d 527, 557-558.)
Defendant’s challenge is addressed to the statute on its face and he does not
argue that the facts of the present case failed to support a lying-in-wait special
circumstance. Nonetheless, we note the record amply demonstrates the
applicability of the special circumstance. Defendant, after seemingly joking with
his friend Edwin Skinner about stealing Joseph Viveiros’s gun collection and
“doing away” with Bernice Viveiros, went to their house, engaged Bernice in
emptying his car trunk until her friend Kim Austin departed, and then ambushed
her by shooting her in the back to facilitate stealing Joseph’s gun collection.
F. Constitutionality of Death Penalty Statute and Procedures
Defendant asserts a variety of supposed flaws in California’s death penalty
statutes and procedures, including failing to designate the aggravating and
mitigating factors, limiting the jury’s consideration of defendant’s mental
disorders or duress exerted on him, failing to delete inapplicable sentencing
factors, failing adequately to define mitigation, failing to advise the jury of its
ability to vote for life imprisonment without parole despite the weight of
aggravating circumstances, failing to require written findings, allowing multiple
use and counting of aggravating evidence, failing to require a finding that death is
appropriate beyond a reasonable doubt, and failing to require unanimity as to the
truth of aggravating factors. We have recently and repeatedly rejected these
contentions. (See, e.g., People v. Hughes, supra, 27 Cal.4th at pp. 404-406;
People v. Weaver (2001) 26 Cal.4th 876, 991-993; People v. Carpenter, supra, 15
Cal.4th at pp. 417-418, 421; People v. Bradford (1997) 14 Cal.4th 1005, 1057-
1059.) We see no reason to reexamine those cases.
Defendant cites Apprendi v. New Jersey, supra, 530 U.S. 466, and Ring v.
Arizona, supra, 536 U.S. 584, as justifying reconsideration of the foregoing
decisions. These cases, however, have no application to the penalty phase
procedures of this state. (People v. Prieto (2003) 30 Cal.4th 226, 262-264, 271-
272, 275; see People v. Snow (2003) 30 Cal.4th 43; People v. Smith (May 8, 2003,
S028339) ___ Cal.4th ___ [p. 65].)
G. Prosecutor’s Discretion to Seek Death Penalty
Defendant argues this state’s death penalty law confers unguided discretion
to prosecutors to charge the death penalty, resulting in arbitrary and irrational
decisions. Again, we have often rejected the point and decline to reconsider it
here. (See People v. Weaver, supra, 26 Cal.4th at p. 992; People v. Kirkpatrick
(1994) 7 Cal.4th 988, 1024; People v. Keenan (1988) 46 Cal.3d 478, 505.)
H. Disproportionate Penalty
Defendant argues that imposing death on “a 19-year-old offender, with no
previous criminal record, and with a history of emotional and family problems”
would be a grossly disproportionate penalty. (See People v. Dillon, supra, 34
Cal.3d at p. 478.) As the Attorney General observes, however, at the time of the
charged offenses, defendant had “suffered a sustained petition for arson, and was
facing two additional charges, including a weapon-related offense.” Defendant
formulated a plan to commit robbery and murder, and to blame the crimes on his
former roommate. After convincing his victim to open the safe containing the
guns he coveted, defendant executed her by shooting her several times at close
range while her back was turned. The murder was premeditated and deliberate,
carried out after a period of watchful waiting until his victim turned her back on
him. Defendant’s possession of a shank in his prison cell casts doubt on his
suitability for life imprisonment. Nothing in the record regarding defendant’s
background and supposed troubled state of mind compels a finding that death
would be a grossly disproportionate punishment for his crimes.
I. Denial of Automatic Modification of Sentence Motion
Defendant contends the trial court improperly (1) based its decision
denying modification of sentence on his probation report, (2) ignored relevant
mitigating evidence, and (3) treated certain mitigating evidence as aggravating.
We find no basis for reversing the judgment.
a. Probation report
The court, in the course of ruling on defendant’s request for modification of
sentence and sentencing him for the noncapital offenses, began by stating that
“Based on what I’ve heard of the recommendations from outside parties, including
the victim’s family, members of Mr. Nakahara’s and the probation
departmentand I have done that and reviewed this case under [section] 190.3 of
the Penal Codeand going back through the factors in aggravation and
mitigation.” (Italics added.) The court proceeded to summarize the various
factors in aggravation and mitigation, including the circumstances of the crime,
the presence of criminal activity involving the use or attempted use of force or
violence, the absence of prior convictions, the lack of evidence of extreme mental
or emotional distress, and the like.
The court concluded that “[o]n balance, and weighing the aggravation and
mitigating circumstances, the court believes the factors in aggravation outweigh
the factors in mitigation, particularly as to the crime itself.” The court indicated
that the strongest aggravating evidence was defendant’s advance announcement of
his intention to rob and kill Viveiros, and his statement to police to the effect that
he put two bullets into his victim’s back, and when she went to her knees and
looked back at him, he shot her again in the head.
In summarizing its specific reasons for denying modification of the death
verdict, the court made no mention whatever of the probation report or its
contents. Immediately thereafter, the court turned to defendant’s noncapital
crimes, robbery and burglary, announcing that, before imposing sentence on those
counts, “[I]t is now my function to read and review the probation report in this
matter before I impose sentence as to the other counts.” (Italics added.) The court
proceeded to sentence defendant to an additional term of 16 years for his
Defendant assumes that the court, in denying modification of sentence, was
influenced by the information or recommendations in defendant’s probation
report, including the writer’s opinion that defendant had an “uncooperative” and
“evasive” attitude, was a “cold blooded killer with the object of killing to steal a
valuable gun collection,” and had “no place in society.” We have repeatedly
stated that “[a] trial court should not read or consider a presentence report before
ruling on an automatic motion to modify penalty. [Citation.] If the court has done
so, we examine the record to determine whether the court may have been
improperly influenced by material in the report. [Citation.] If the court does not
mention any material in the report when giving its reasons for denying the
modification motion, we conclude there was no improper influence. [Citations.]
Here, the trial court’s statement of reasons cited only the evidence presented at
trial, not extraneous information in the presentence report.” (People v. Kipp,
supra, 18 Cal.4th at p. 383.)
Likewise, in the present case we find no indication the trial court
improperly relied on the opinions expressed in the probation report in ruling on
the automatic motion to modify. Accordingly, we find no reversible error in its
consideration of that report. Absent contrary indication in the record, we must
assume the trial court was not influenced by the probation report in ruling on the
automatic motion to modify. (See People v. Navarette (2003) 30 Cal.4th 458, 526
[court considered modification motion on same day as sentencing hearing on
noncapital crimes; nothing in record suggests court considered or relied on
probation report when ruling on application for modification]; People v. Seaton
(2001) 26 Cal.4th 598, 694; People v. Riel, supra, 22 Cal.4th at pp. 1221-1222.)
b. Disregarding mitigating evidence
Defendant also contends the court, in denying the modification motion,
erred in “disregarding” evidence of defendant’s mental disturbance, including
expert testimony that defendant suffered from attention deficit disorder and a
passive-aggressive personality disorder. The record shows that in reviewing the
list of statutory factors under section 190.3, the court made this comment
regarding factor (d): “ ‘D,’ whether or not he was under extreme mental or
emotional disturbance at the time of the offense. That may have some merit, but
there was no evidence of extreme mental duress [sic]. There was certainly
evidence of some emotional disturbance during the time of this rather bizarre
behavior and some statements that were a close enough call where I couldn’t put
that in any particular category.”
Later, in evaluating factor (k) of section 190.3, the court commented that
“Factor ‘K,’ any other circumstance, I found that to be a mitigating circumstance
based on his childhood and what some of the things he went through as he was
being raised.” The court concluded, however, that “On balance, and weighing the
aggravating and mitigating circumstances, the court believes the factors in
aggravation outweigh the factors in mitigation, particularly as to the crime itself.”
Defendant contends the court erred in failing to mention or consider the
evidence of his “nonextreme” mental disorder under section 190.3, factor (k), as a
circumstance that would extenuate the gravity of his crime. It is true that factor
(k) does allow consideration of nonextreme mental or emotional conditions.
(People v. Turner (1994) 8 Cal.4th 137, 208, and cases cited.) It is also true that
the trial court, in the present case, did not include defendant’s mental disorder
evidence in its discussion of the mitigating evidence. But we have held that the
court, in reciting its reasons for denying the modification motion, need not discuss
all evidence the defendant submitted as supposedly mitigating. (People v. Seaton,
supra, 26 Cal.4th at p. 694; People v. Arias (1996) 13 Cal.4th 92, 192.) In any
event, assuming the court erred in not considering defendant’s expert evidence as
potentially mitigating, no reasonable possibility exists that the error affected the
court’s ruling. (See People v. Whitt (1990) 51 Cal.3d 620, 660-661; People v.
Jones (1997) 15 Cal.4th 119, 192.) The court had heard, and certainly was aware
of, defendant’s evidence, yet it ultimately believed the aggravating evidence
justified the jury’s death verdict.
c. Davenport error
Defendant contends the trial court erred in characterizing as “aggravating”
defendant’s capacity to appreciate the criminality of his conduct. In People v.
Davenport (1985) 41 Cal.3d 247, 288-290, we explained that the failure to show
the defendant’s mental impairment is not an aggravating circumstance, but simply
the absence of a mitigating one. Accordingly, the court may have erred in
concluding that defendant’s capacity to know right from wrong aggravated his
offense. (People v. Kaurish (1990) 52 Cal.3d 648, 717; People v. Marshall (1990)
50 Cal.3d 907, 944.) But the error was undoubtedly harmless in light of the other
aggravating circumstances in the case, and no reasonable possibility exists that the
error affected the court’s ruling. (People v. Whitt, supra, 51 Cal.3d at pp. 660-
661; Kaurish, supra, at p. 718; Marshall, supra, at pp. 944-945.) Certainly, the
court was entitled to consider defendant’s ability to appreciate the criminality of
his conduct as yet another circumstance of his crime. (§ 190.3.)
d. Cumulative errors
Defendant asserts the combined effect of the trial court’s errors in denying
defendant’s modification request requires reversal. As we have seen, no serious
errors were committed here. Whether viewed separately or in the aggregate, no
reasonable possibility exists that these errors affected the court’s decision to deny
We affirm the judgment of death in its entirety.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion People v. Nakahara
Date Filed: May 22, 2003
County: Los Angeles
Judge: Michael G. Nott
Attorneys for Appellant:Lynne S. Coffin, State Public Defender, under appointment by the Supreme Court, Peter R. Silten and
Arnold Erickson, Deputy State Public Defenders, for Defendant and Appellant.
Attorneys for Respondent:Bill Lockyer, Attorney General, David P. Druliner and Robert R. Anderson, Chief Assistant Attorneys
General, Carol Wendelin Pollack and Pamela C. Hamanaka, Assistant Attorneys General, Donald
Denicola, Robert S. Henry, Keith H. Borjon, John R. Gorey and Shawn McGahey Webb, Deputy
Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):Arnold Erickson
Deputy State Public Defender
221 Main Street, 10th Floor
San Francisco, CA 94105
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
|1||The People (Respondent)|
Represented by Attorney General - Los Angeles Office
Donald de Nicola / Shawn A. McGahey
300 South Spring Street, Suite 500
Los Angeles, CA
|2||Nakahara, Evan Teek (Appellant)|
Represented by Office Of The State Public Defender-Sf
Arnold Erickson / Gary Garcia
221 Main Street, 10th Floor
San Francisco, CA
|May 22 2003||Opinion: Affirmed|
|Nov 6 1990||Judgment of death|
|Nov 13 1990||Filed certified copy of Judgment of Death Rendered|
|Jun 29 1994||Order appointing State Public Defender filed|
To represent Applt on His A.A., Including Any Related Habeas Proceedings.
|Jul 27 1994||Application for Extension of Time filed|
By Applt to request correction of Record.
|Jul 28 1994||Extension of Time application Granted|
To Applt To 9-29-94 To request Corr. of Record.
|Sep 26 1994||Application for Extension of Time filed|
By Applt to request correction of Record.
|Sep 28 1994||Extension of Time application Granted|
To Applt To 11-28-94 To request Corr. of Record.
|Nov 18 1994||Application for Extension of Time filed|
By Applt to request correction of Record.
|Nov 22 1994||Extension of Time application Granted|
To Applt To 1-27-95 To request Corr. of Record.
|Jan 20 1995||Application for Extension of Time filed|
By Applt to request correction of Record.
|Jan 25 1995||Extension of Time application Granted|
To Applt To 3-28-95 To request Corr. of Record.
|Mar 21 1995||Application for Extension of Time filed|
By Applt to request correction of Record.
|Mar 23 1995||Extension of Time application Granted|
To Applt To 5-30-95 To request Corr. of Record. no further Extensions of time Are Contemplated.
|May 23 1995||Application for Extension of Time filed|
By Applt to request correction of Record.
|May 26 1995||Extension of Time application Granted|
To Applt To 7-31-95 To request correction of Record. no further Extensions of time will be Granted.
|Aug 7 1995||Received:|
Copy of Applt's motion to correct, Augment, & Settle the Record on Appeal (19 Pp.)
|Mar 6 2000||Record on appeal filed|
C-11 (1,441 Pp.) and R-16 (2,687 Pp.) Including Material Under Seal
|Mar 6 2000||Appellant's opening brief letter sent, due:|
|Apr 7 2000||Filed:|
Applt's motion to vacate Judgment
|Apr 17 2000||Application for Extension of Time filed|
To file Aob.
|Apr 18 2000||Extension of Time application Granted|
To 6/16/2000 To file Aob.
|Apr 19 2000||Application for Extension of Time filed|
To file Opposition To motion To vacate Judgment Respondent People
|Apr 24 2000||Extension of Time application Granted|
To 5/24/2000 To Resp To file Opposition To Applt's motion To vacate Judgment
|May 22 2000||Opposition filed|
Resp's Opposition to Applt's motion to vacate Judgment.
|Jun 1 2000||Application for Extension of Time filed|
By Applt to file reply to Resp's Opposition to Applt's motion to vacate Judgment.
|Jun 8 2000||Extension of Time application Granted|
To 6/29/2000 To file Applt's reply To Resp's Opposition To motion To vacate Judgment
|Jun 14 2000||Application for Extension of Time filed|
To file Aob.
|Jun 16 2000||Extension of Time application Granted|
To 8/15/2000 To file Aob.
|Jun 26 2000||Filed:|
Applt's reply to Resp's Opposition to Applt's motion to vacate Judgment.
|Jul 31 2000||Counsel's status report received (confidential)|
|Aug 11 2000||Application for Extension of Time filed|
To file AOB. (3rd request)
|Aug 15 2000||Extension of Time application Granted|
To 10/16/2000 to file AOB.
|Sep 13 2000||Order filed:|
Appellant's motion to vacate judgment, filed April 7, 2000, is denied.
|Oct 12 2000||Application for Extension of Time filed|
To file AOB. (4th request)
|Oct 17 2000||Extension of Time application Granted|
To 12/15/2000 to file AOB.
|Dec 4 2000||Counsel's status report received (confidential)|
|Dec 14 2000||Application for Extension of Time filed|
To file AOB. (5th request)
|Dec 20 2000||Extension of Time application Granted|
To 2/13/2001 to file AOB.
|Feb 5 2001||Counsel's status report received (confidential)|
|Feb 14 2001||Application for Extension of Time filed|
To file AOB. (6th request)
|Feb 21 2001||Extension of Time application Granted|
To 4/16/2001 to file AOB. No further ext. of time are contemplated.
|Apr 2 2001||Counsel's status report received (confidential)|
|Apr 12 2001||Application for Extension of Time filed|
To file AOB. (7th request)
|Apr 19 2001||Extension of Time application Granted|
To 6/15/2001 to file AOB. No further extensions of time will be granted.
|Jun 1 2001||Counsel's status report received (confidential)|
|Jun 15 2001||Appellant's Opening Brief filed (193 Pp.)|
|Jul 10 2001||Application for Extension of Time filed|
to file respondent's brief. ( 1st request)
|Jul 17 2001||Extension of Time application Granted|
To 9/13/2001 to file resp.'s brief.
|Sep 6 2001||Application for Extension of Time filed|
to file resp's brief. (2nd request)
|Sep 13 2001||Extension of Time application Granted|
To 11/14/2001 to file resp.'s brief.
|Nov 7 2001||Application for Extension of Time filed|
to file Resp's brief. (3rd request)
|Nov 14 2001||Extension of Time application Granted|
To 1/14/2002 to file resp.'s brief.
|Dec 17 2001||Counsel's status report received (confidential)|
|Jan 8 2002||Request for extension of time filed|
to file Resp's brief. (4th request)
|Jan 11 2002||Extension of time granted|
To 3/15/2002 to file resp.'s brief. Dep. AG McGahey anticipates filing the brief by 3/15/2002. After that date, no further extension is contemplated.
|Feb 14 2002||Counsel's status report received (confidential)|
from State P.D.
|Feb 28 2002||Respondent's brief filed|
|Mar 20 2002||Request for extension of time filed|
To file reply brief. (1st request)
|Mar 21 2002||Extension of time granted|
To 5/20/2002 to file reply brief.
|Apr 15 2002||Counsel's status report received (confidential)|
from State P.D.
|May 17 2002||Request for extension of time filed|
To file reply brief. (2nd request)
|May 22 2002||Extension of time granted|
To 7/19/2002 to file reply brief. Dep. State Public Defender Erickson anticipates filing that brief by 12/13/2002. Only three further extensions totaling 147 additional days are contemplated.
|Jun 12 2002||Counsel's status report received (confidential)|
|Jul 19 2002||Extension of time granted|
To file applt.'s reply brief. (3rd request)
|Jul 24 2002||Extension of time granted|
To 9/17/2002 to file applt.'s reply brief. Dep. State Public Defender Erickson anticipates filing that brief by 12/13/2002. Two further extensions totaling 87 additional days are contemplated.
|Aug 14 2002||Counsel's status report received (confidential)|
|Sep 17 2002||Request for extension of time filed|
To file appellant's reply brief. (4th request)
|Sep 19 2002||Extension of time granted|
To 11/18/2002 to file appellant's reply brief. After that date, only one further extension totaling 25 additional days is contemplated. Extension is granted based upon Deputy State Public Defender Arnold Erickson's representation that he anticipates filing that brief by 12/13/2002.
|Oct 16 2002||Counsel's status report received (confidential)|
|Nov 15 2002||Request for extension of time filed|
to file reply brief. (5th request)
|Nov 19 2002||Extension of time granted|
to 12-13-2002 to file reply brief. After that date, no further extension will be granted. Extension granted based upon Deputy S.P.D. Arnold Erickson's representation that he anticipates filing the brief by 12-13-2002.
|Dec 13 2002||Appellant's reply brief filed|
|Dec 16 2002||Counsel's status report received (confidential)|
|Feb 13 2003||Oral argument letter sent|
advising counsel that case could be scheduled for oral argument as early as April 2003, calendar. Any request for additional time to argue, notification of requirement for two counsel, or advisement of "focus issues" due no later than 10 days after the case has been set for oral argument.
|Feb 18 2003||Counsel's status report received (confidential)|
|Mar 6 2003||Case ordered on calendar|
4-2-03, 1:30pm, L.A.
|Mar 12 2003||Filed letter from:|
Respondent, dated 3/12/2003, re focus issues for oral argument and requesting 45 minutes for argument only if appellant so requests.
|Mar 17 2003||Filed letter from:|
Appellant's counsel, dated 3/14/2003, re focus issues for oral argument.
|Apr 2 2003||Cause argued and submitted|
|Apr 23 2003||Counsel's status report received (confidential)|
from State P.D.
|May 22 2003||Opinion filed: Judgment affirmed in full|
Majority Opinion by Chin, J. -- joined by George, C.J., Kennard, Baxter, Werdegar, Brown, and Moreno, JJ.
|Jun 12 2003||Related habeas corpus petition filed (concurrent)|
|Jun 24 2003||Remittitur issued (AA)|
|Jun 30 2003||Received:|
receipt for remittitur.
|Jul 11 2003||Order filed (150 day statement)|
|Aug 19 2003||Received:|
Copy of appellant's cert petition. (22 pp.)
|Nov 21 2003||Received letter from:|
the U.S.S.C., dated 11-17-2003, advising that on that date the court entered the following order: "the motion of petitioner for reconsideration of order denying leave to proceed in forma pauperis is denied. The motion of petitioner for leave to proceed in forma pauperis without an affidavit of indigency executed by petitioner is denied."
|Jun 15 2001||Appellant's Opening Brief filed (193 Pp.)|
|Feb 28 2002||Respondent's brief filed|
|Dec 13 2002||Appellant's reply brief filed|