Filed 3/14/05
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S045504
v.
HOOMAN ASHKAN PANAH,
Los Angeles County
Defendant and Appellant.
Super. Ct. No. BA090702
A jury convicted defendant Hooman Ashkan Panah of the first degree
murder of eight-year-old Nicole Parker (Pen. Code, § 187), among other offenses,
and found true the special circumstance allegations that the murder was committed
while defendant was engaged in the commission of the crimes of sodomy and
lewd acts upon a child under the age of 14 (Pen. Code, § 190.2, subd. (a)(17)(D),
(E)). The same jury subsequently set the penalty at death. This appeal is
automatic. (Pen. Code, § 1239, subd. (b).) We affirm the judgment.
I. FACTS
A. Procedural History
Defendant was charged in a seven-count indictment with the murder of
Nicole Parker (Pen. Code, § 187)1 with the special circumstances that the murder
1
All further statutory references are to the Penal Code unless otherwise
specified.
1
occurred while defendant was engaged in the commission of the crimes of
kidnapping, sodomy, lewd acts upon a child under 14, and oral copulation of a
person under the age of 14 and more than 10 years younger than defendant.
(§ 190.2, subd. (a)(17)(B), (D), (E), and (F).) He was further charged with
kidnapping for child molesting (§ 207, subd. (b)); kidnapping a person under 14
years of age (§§ 207, subd. (a), 208, subd. (b)); sodomy by use of force (§ 286,
subd. (c)); lewd acts upon a child under the age of 14 (§ 288, subd. (a));
penetration of genital or anal openings by a foreign object with a person under the
age of 14 and more than 10 years younger than defendant (§ 289, subd. (j)); and
oral copulation of a person under 14 years of age and more than 10 years younger
than defendant (§ 288a, subd. (c).)
Defendant pled not guilty and denied the special circumstance allegations.
Prior to commencement of the guilt phase of his trial, he also entered a plea of not
guilty by reason of insanity. (§ 1016, subd. (6).)
After presentation of the prosecution’s case, defendant moved for acquittal
(§ 1118.1); his motion was granted as to the special circumstance allegation of
kidnapping and as to the substantive counts alleging kidnapping and kidnapping
for child molestation, but was otherwise denied. The jury convicted defendant of
first degree murder and found true the special circumstance allegations that he
committed the murder while engaged in the commission of the crimes of sodomy
and lewd acts upon a child under the age of 14. The jury found not true the special
circumstance allegation that the murder was committed while defendant was
engaged in the commission of the crime of oral copulation. Defendant was also
convicted of sodomy by force, lewd acts upon a child under the age of 14,
penetration of genital or anal openings by a foreign object with a person under 14
years of age and oral copulation of a person under 14 years of age.
2
Defendant withdrew his plea of not guilty by reason of insanity. Following
the penalty phase, the jury returned a verdict of death. Defendant’s motion for a
new trial (§ 1181) was denied and the trial court declined to modify the verdict of
death (§ 190.4, subd. (e)). Defendant was sentenced to death on the murder count.
On the remaining four counts, he was sentenced to eight years on each count, to
run consecutively. These terms were stayed pursuant to section 654.
B. Guilt Phase Evidence
1. Prosecution Evidence
On the morning of Saturday, November 20, 1993, Lori Parker drove her
eight-year-old daughter, Nicole, and her son, Casey, to the apartment of their
father, Edward Parker, in Woodland Hills. Mr. Parker lived with the Parkers’
other two children, Chad and Travis. Defendant, then 22, and his mother, Mehri
Monfared, lived in the apartment across the courtyard from Mr. Parker’s
apartment. Defendant’s mother was having a business meeting that morning with
Ahmad Seihoon. When Mr. Seihoon arrived about 9:00 a.m., defendant was
asleep in his bedroom upstairs.
Ms. Monfared left the apartment sometime before 11:00 a.m., as did Mr.
Seihoon, but Seihoon had to return to the apartment for his keys and wallet. As
Mr. Seihoon was leaving, he saw Nicole. She asked him if he lived in the
apartment and if he was the father of the “boy with the long hair.” He told her he
was a friend of the family. Nicole stared at him and then ran across the courtyard
into her father’s apartment. Mr. Seihoon went back into defendant’s apartment
and called out to him in Farsi to lock the door.
Sometime after 11:00 a.m., Nicole asked her father for a glove and softball.
As Mr. Parker walked back and forth between his apartment and the laundry room,
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he saw Nicole throwing the ball against the elevator. He told her to be inside the
apartment by noon.
About 11:45 a.m., he came outside and called her. She did not respond, but
he assumed she had heard him. Five minutes later, he went out again and called
her. When she again failed to respond, he searched the apartment complex for her.
About 12:30 p.m., he called Mrs. Parker and reported that Nicole was missing.
Afterwards, Mr. Parker began knocking on doors to see whether Nicole was
playing inside a neighbor’s apartment. He came to defendant’s apartment.
Defendant answered and stood in the doorway. Mr. Parker asked him whether he
had seen Nicole and defendant answered “something like, oh, is she missing.” Mr.
Parker answered, “yeah. I can’t find her,” and went to the next door. Unable to
locate her, he called the police.
While Mr. Parker waited for the police, defendant and other neighbors were
standing around. They wanted to know if he had found Nicole. Defendant
followed him down some stairs. He offered to drive down Ventura Boulevard
with Mr. Parker looking for Nicole. Mr. Parker brushed him off, telling him the
police were coming and would take care of it. Defendant was “very persistent,”
however, and kept “pushing,” telling Mr. Parker, “let’s go. Let’s go.” Mr. Parker
told him, “no, no, no. Don’t worry about it. Like just leave me alone.”
Eventually, he stopped paying attention to defendant, who left.
Los Angeles Police Department Officer Roger Mosset arrived about 1:15
p.m. He and Sergeant Melvin Patton set up a command post at the apartment
complex. Officer Mosset obtained a description of Nicole from Mr. and Mrs.
Parker and initiated a search of the apartment complex and the surrounding area.
Officer Ruth Barnes and her partner, Officer Calderon, participated in a door-to-
door search for Nicole. At defendant’s apartment, Officer Barnes saw the
television was on, but no one responded when she knocked, so she and Calderon
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left. Sometime later, Officer Barnes returned to the apartment and observed the
television was off. A neighbor told her a young man lived there with his mother.
Defendant reported to work at Mervyn’s department store about 3:00 p.m.
Adele Bowen was the store manager. The day before, she and defendant had
argued about his parking in an unauthorized area. Defendant had become loud and
argumentative and called Ms. Bowen a “dictator.” When defendant arrived for
work, Bowen sought him out to resolve the argument. His responses were normal
and he did not appear to be under the influence of drugs or alcohol.
Defendant’s direct manager, Bruce Cousins, saw him about 3:15 p.m.
According to Cousins, defendant was not as “up and cheery” as usual, but he did
not appear to Cousins to be under the influence of alcohol or drugs. About 5:00
p.m., Rauni Campbell, a fellow employee who had dated defendant, saw him in
the store. Sometime between 5:15 and 5:30 p.m., Mr. Cousins noticed that
defendant was gone. Cousins searched for him, but he could not be found.
At the apartment complex, Sergeant Patton received information that
Nicole had been seen talking with a man outside of defendant’s apartment.
Officer Barnes also told him that the television in defendant’s apartment had been
on and then turned off. After obtaining a key from the apartment manager, Patton
and several other officers, including Barnes and Calderon, entered defendant’s
apartment to search for Nicole. After about 15 minutes, when they did not find
her, Patton ended the search.
When Ms. Monfared returned to the apartment complex, she was stopped
by police who showed her a picture of Nicole and asked her whether she knew the
child. Ms. Monfared said she did not. An officer told her that defendant had been
seen talking with Nicole, and asked her where he was. She said he was at work.
Officers Calderon and Barnes went to defendant’s apartment and spoke to
Ms. Monfared about talking to defendant. Ms. Monfared called him and gave the
5
phone to Officer Barnes. Barnes asked defendant if he knew Nicole and he said,
“vaguely,” or “not really.” Officer Barnes then asked him, “Do you know where
she is?” Defendant answered, “No.” Officer Barnes said, “Oh, because someone
said that they had seen you with her earlier.” Defendant replied, “No, I didn’t see
her.”
Around 5:45 p.m., defendant called Bruce Cousins and told Cousins he was
not in the store, would not be returning and loved everyone at Mervyn’s. He said
he could not come back “because some people that he knew [were] trying to get
him in trouble and would I please inform his mother to get out of town.” Cousins
put him on hold to wait on customers. When he picked up the phone, defendant
again asked Cousins to call his mother and “tell her that these people were after
her and they were going to kill her, for her to get out of town.” Cousins did not
take defendant seriously.
Sometime after 5:00 p.m., defendant paged Rauni Campbell. He told her,
“I need your help” and “I have done something very bad” and asked her to call his
mother and his friends to tell them good-bye because he would not be seeing them
again. When she asked him what he had done, he would tell her only that it was
“so big” she would find out about it.
At 8:00 or 9:00 p.m., Mr. Seihoon called defendant’s apartment and learned
from Ms. Monfared that police were looking for a missing girl. He went to her
apartment and told police about his earlier encounter with Nicole.
On Sunday, November 21, sometime around 9:00 a.m., Ms. Campbell was
awakened by defendant knocking at her window. His wrists were slashed and
there was dried blood on his sweater and wrists. She let him into her apartment
and he told her he wanted her to buy sleeping pills for him. She did not ask him
why he needed them. They drove to a store where defendant purchased the pills
and then returned to her apartment.
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After defendant took the pills, she asked him what he had done, and if it
had anything to do with “the little girl that was missing from his apartment
complex.” He said, “Yes.” When she asked him “if the little girl was still alive,”
defendant said, “No.” She asked him, “do you know she is not alive or are you
assuming that because of what you have done that is so bad she is not alive.”
Defendant answered, “she is not alive.” He told her she would find out about it
because “they have a tape of me.” Defendant appeared to understand her
questions and was responsive to them.
Ms. Campbell told him she needed to go downstairs to the manager’s
apartment and call in sick. Instead, she called 911 and told the operator that a
friend was in her apartment trying to commit suicide. When Officer Kong arrived,
she told him defendant was taking sleeping pills and had something to do with the
missing girl.
When defendant saw Officer Kong, he ran. Officer Kong went in pursuit,
but lost defendant. He broadcast a radio call describing defendant as the victim of
a suicide attempt. When he learned from Ms. Campbell what defendant had told
her about Nicole, he relayed this information to Sergeant Mascola.
Sergeant Mascola arrived at Ms. Campbell’s apartment about 10:00 a.m.
After talking to Officer Kong, he began a search. He came upon defendant’s black
BMW. Through the windows he saw a couple of bloodstained knives and
bloodstains in the interior of the car. He also observed a cord sticking out from
the trunk that he believed could have been a ligature. Mascola believed Nicole
might be inside the trunk so he had his officers force it open. She was not there.
Detective David Navarro also went to Ms. Campbell’s apartment that
morning. From there, he went to defendant’s apartment. Detective Navarro and
other officers searched defendant’s apartment for Nicole but did not find her. In
defendant’s bedroom, Detective Navarro observed a video camera set up with a
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video machine. The video camera was pointing toward the bed. Detective
Navarro ended the search and secured the location so he could obtain a search
warrant.
Defendant was eventually detained by police at Ms. Campbell’s apartment
complex. His wrists were cut and he appeared to one of the officers, Officer Joe,
to be under the influence of drugs or alcohol. Officer Joe asked defendant where
the little girl was. Defendant replied she “could be at Topanga Canyon and
Parenthia” at a motel. He also said she could be at the Fallbrook Mall or at a park
located at Topanga Canyon and Roscoe Boulevard. He told the officer he “liked
her very much, even carry her skeleton remains around.” The statement did not
make sense to Officer Joe. At times defendant spoke clearly, at other times he was
incoherent as if he were falling asleep. He appeared to Joe to be under the
influence of “something,” and because of the cuts to his wrists, the paramedics
were called. Defendant was transported to West Valley Hospital for medical
treatment.
At 10:00 or 11:00 p.m., Detective Burris and other police officers arrived at
defendant’s apartment and conducted a search pursuant to a search warrant. In
defendant’s bedroom closet, Burris found three suitcases, one atop the other
beneath a pile of clothes. Inside the third suitcase, Burris found Nicole’s naked
body wrapped in a bed sheet tied with a knot.
Various items were removed or collected from defendant’s bedroom by
police criminalist, Robert Monson, including the bedding, all the items on the bed,
and defendant’s blue robe. The sheet Nicole was wrapped in was preserved for
later analysis. Monson also found and collected bloodstains from the bathroom
and a tissue paper from the bathroom wastebasket that had a beige-colored stain
on it. A preliminary acid phosphatase test of the stain indicated the possible
presence of semen. Later, Monson went to West Valley Hospital where he
8
obtained a blood sample from defendant. A police detective also gave Monson a
ring, a pendant, and a necklace belonging to defendant.
About midnight, a coroner’s criminalist, Lloyd Mahany, arrived at the
crime scene. He lifted Nicole’s body out of the suitcase, placed it on the bed, and
unwrapped it. Mahany examined the body and collected sexual assault evidence,
including swabs of the mouth, vaginal and anal areas, and breasts.
The evidence collected by Monson and Mahany was analyzed by a third
criminalist, William Moore, a forensic serologist. Preliminarily, Moore
determined that defendant’s blood type was ABO type B while Nicole’s blood
type was ABO type A. The sheet in which Nicole was wrapped was found to have
bloodstains of ABO type AB, semen, and amylase, a constituent of saliva and
other bodily fluids.
Moore testified the blood on the sheet could have come from a person who
had type AB blood or could have been a mixture of A antigens and B antigens.
The bloodstain on the sheet was “consistent” with Nicole. Additionally, there
were a small number of stains on the sheet exhibiting positive acid phosphatase
activity consistent with semen. Some of these stains revealed the presence of
spermatozoa fragments, indicating “that a male had ejaculated and deposited
semen directly on the sheet or it was deposited by some other means.” Moore
opined that the pattern of stains was consistent with the spewing of semen across
the sheet and inconsistent with masturbation. The stains also showed amylase
activity that was consistent with saliva. The saliva could have come from Nicole
and the semen could have originated from defendant. Moore also analyzed the
oral swab taken from Nicole as part of the sexual assault kit. The oral swab
produced a positive acid phosphatase result indicative of the presence of semen,
but was inconclusive.
9
Moore also analyzed defendant’s blue robe. The robe, like the sheet, bore
bloodstains of ABO type AB. These stains also contained high amylase activity,
indicative of saliva. The bloodstain was consistent with Nicole. The saliva could
have originated from defendant.
Moore’s analysis of the tissue paper found in the wastebasket in
defendant’s bathroom revealed that the paper contained semen stains consistent
with defendant and high amylase activity consistent with Nicole. The stains were
consistent with the product of oral copulation.
Moore also examined the anal swab. The swab produced a positive acid
phosphatase result indicative of the presence of semen, but was inconclusive.
The autopsy of Nicole’s body was performed by Dr. Eva Heuser of the Los
Angeles County Coroner’s Office. Dr. Heuser testified that there were petechial
hemorrhages around Nicole’s eyes indicative of pressure to the neck. This was
confirmed by evidence of neck injuries, including deep bruising to the tissue
around the carotid artery and jugular vein. The bruising was consistent with
application of pressure by a thumb. The injury to the carotid artery could have
caused death. There was an injury to the larynx indicative of manual
strangulation. The injuries to her neck were sufficient to cause death. An
examination of her lungs indicated she had aspirated her own vomit.
Dr. Heuser also observed other bruises and abrasions to Nicole’s face. A
bruise on her forehead was consistent with impact with a wall or the floor or being
struck with a fist. Other bruises were caused by finger pressure. Scratches on the
inside of her thighs were consistent with having been made by defendant’s ring.
The vaginal opening was “very widely” open and bruised, suggesting
penetration with a finger or attempted penetration by a penis. The anal opening
was very relaxed and the circumference of the anus had a bruised appearance;
there was also tearing of the anus toward the vagina and indications of bleeding.
10
These injuries were consistent with the insertion of a male penis, or a similar
object, into the rectum. All these injuries were premortem. Dr. Heuser opined
that the injury to the rectum could have caused death.
Dr. Heuser concluded that the cause of Nicole’s death could have been the
injuries to her neck or the result of sodomy. She was unable to state a time of
death but did opine that death would have taken at least a half-hour.
2. Defense Evidence
Defendant called Dr. John Palmer, who had treated him following his
arrest. Dr. Palmer was not a psychiatrist but had treated many people with
psychiatric problems in the emergency room. Dr. Palmer thought defendant was
“psychotic,” and described him as being “agitated” and “delusional.” He was
having auditory hallucinations, acting inappropriately, and had slashes on his
wrists that appeared to have been self-inflicted. The cuts to his wrist were not life
threatening. Defendant said that people in black hoods had told him to slash his
wrists. A toxicological screen revealed the presence of tetrahydrocannabinol, the
active ingredient in marijuana, and benzodiazepine, which belongs to a class of
drugs used as a mild tranquilizer.
Dr. Palmer concluded that defendant was “acutely psychotic,” suicidal and
hearing “command hallucinations, meaning the black robed and hooded figures
were telling him to kill himself.” Defendant was also under the influence of drugs.
Dr. Palmer could not tell whether his psychosis was brought on by the drugs, or
was long-standing and relatively quiescent but had been exacerbated. He also
acknowledged “environmental factors,” like “acute stress” or “acute grief,” can
produce an acute psychotic break.
Defendant also presented character witnesses who testified to his peaceful
disposition, sensitive nature and lack of any unnatural interest in children.
11
Two former girlfriends also testified that defendant was never violent
during sex. One of them, Victoria Eckstone, whom defendant dated for six
months to a year, also testified that she believed defendant was the father of her
19-month-old daughter. She testified that defendant loved the child.
Michael Mier, who lived about five miles from defendant, testified that on
the evening of November 20, he heard a young girl and a man screaming for help
in a creek next to his home. He called 911.
C. Penalty Phase Evidence
1. Prosecution Evidence
The prosecution presented victim impact evidence in the form of testimony
from Mr. and Mrs. Parker and their sons, Travis, Chad and Casey. Each family
member testified about Nicole’s character and the effect that her death had had on
that family member and other members of the family.2
2. Defense Evidence
Victoria Eckstone testified that she believed defendant was the father of her
child, Amanda, and that defendant was good with the child. She acknowledged
that she had never had Amanda’s paternity medically determined but believed she
bore an uncanny resemblance to defendant. She wanted defendant to continue to
have a relationship with Amanda because even an imprisoned father was better
than no father at all. If defendant were given the death penalty, Amanda would
not have a father.
Five friends of defendant testified to his good character, describing him as
“nice,” “polite,” “kind,” “sensitive,” “sweet,” and “gentle,” and described how
2
This evidence is discussed in greater detail in connection with defendant’s
argument that it was cumulative, unsubstantiated and prejudicial.
12
they would be affected should he receive the death penalty — “shocked,”
“devastat[ed],” “hurt,” “very sorry,” and “very upset.” Daryoosh Adib, who
befriended defendant after his arrest, believed defendant was a “very calm” person
who could not have “bothered anyone.” If defendant received the death penalty,
he would feel as if he had lost a brother. William Glaser, defendant’s history
teacher, testified he had encouraged defendant to seek psychological counseling
for stress after defendant expressed his pessimism about his future.
Farrah Farzaneh was a friend of defendant’s mother, and had known
defendant for approximately six years. Ms. Farzaneh believed that defendant’s
mother loved him very much but that her parenting methods had “failed
miserably.” She described defendant as a “sensitive” and “caring” young man
who had had a very difficult life. She testified that it would be horrible for her if
defendant received the death penalty.
Defendant’s mother, Ms. Monfared, testified at length. She was born in
Tehran in 1947 and married defendant’s father when she was 21 and he was 25.
She testified that she and defendant’s father argued constantly and that he beat her.
While she was pregnant with defendant, her husband physically abused her, more
than once pushing her and causing her to fall to the floor. The abuse continued
after defendant was born in 1971. When defendant was three months old,
defendant’s father pushed her and she dropped the baby carrier containing him.
He required medical attention. When defendant was about three and a half years
old, Ms. Monfared divorced her husband and was granted custody of defendant.
Defendant and his mother went to live with her family. Defendant was
upset at his parents’ separation. When he was four years old, he intentionally cut
his finger severely enough to require stitches. When his mother asked him why,
he said did not want to live anymore. Defendant did eventually reestablish a good
relationship with his father.
13
When defendant was 10, he told his mother that his grandfather was
sexually molesting him and an older cousin by having anal sex with them. Ms.
Monfared did not believe defendant. She slapped him and called him a liar and a
“kuni,” a pejorative term in Farsi for a homosexual. A few months later, the
principal at his school told her some students were saying defendant was “acting
like a gay.” Defendant denied it, but she did not believe him. She slapped him
and punished him and frequently called him a “kuni.”
In 1984, after the death of her parents, Ms. Monfared decided to leave Iran
with defendant. She had been fired from her job because of her disagreement with
the government over its treatment of women. At one point, Ms. Monfared was
put in jail by the government. Also, while they were in Iran, the country was at
war with Iraq. Defendant was so frightened by the bombing of Tehran that he wet
himself at night. Ms. Monfared was afraid that defendant might be taken to war.
She also wanted more opportunity for him. For all these reasons, she wanted to
take him out of the country. Defendant, however, wanted to stay in Iran where he
could have a relationship with his father.
They first went to Turkey where they lived for two years while Ms.
Monfared attempted to gain entry into the United States. For the first two weeks
they were in Turkey they had to share a bed; during this period, defendant, then
13, tried to “touch” his mother. At one point, during their sojourn in Turkey, they
went to Cyprus where Ms. Monfared attempted unsuccessfully to obtain visas to
the United States. While they were in Cyprus, a man tried to rape her in the hotel
room she was sharing with defendant. Her yelling woke defendant, who was very
frightened. The man struck them and left.
In 1986, Ms. Monfared obtained visas to Germany and to Mexico.
Defendant did not require a visa to go to Germany, so they went there. Ms.
Monfared remained in Germany for 10 days, then left for Mexico before her visa
14
expired. Defendant, then 15, stayed behind in Germany, which had granted him
political asylum. He lived at a dormitory for teenagers from foreign countries or
without parents. Eventually, Ms. Monfared obtained green cards for herself and
defendant to allow them to travel to the United States. In 1988 she returned to
Germany for defendant.
Defendant was happy in Germany where he had a girlfriend whom he
wanted to marry. Ms. Monfared threatened to commit suicide unless he came with
her to the United States. In September 1988, a month after they arrived, defendant
took some pills in a suicide attempt. When Ms. Monfared asked him why he had
attempted suicide, he told her it was because he had wanted to stay in Germany
with his girlfriend.
In 1989, defendant began dating a girl named Laura. Laura lived with
defendant and his mother briefly but Ms. Monfared asked Laura to leave because
she suspected Laura was stealing from her. Defendant continued to see Laura.
Ms. Monfared threatened to kill herself unless defendant stopped seeing Laura.
They argued and she hit him and threw him out of the apartment. On one other
occasion, Ms. Monfared threw a knife at defendant and threatened to kick him out
of the house.
Ms. Monfared testified that she physically abused defendant when he was a
child. She beat him with her hands and shoes, slapped him when he misbehaved
and pulled his hair. She also put pens and pencils in the middle of his fingers and
squeezed his hand to make him cry. Defendant’s uncles and aunts also struck him
when he misbehaved. She also testified that when defendant was eight or nine,
she took more than 50 showers with him. She testified further that over the years,
she would threaten to commit suicide to get defendant to do as she said. She
threatened to commit suicide when defendant was offered a plea bargain in this
case.
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Dr. Palmer testified that it was “possible” the symptoms he observed
defendant exhibit the night he treated him could have been the result of long-
standing psychosis. He also examined the hospital records of defendant’s 1988
suicide attempt. The records indicated defendant had taken a relatively small
overdose of antihistamines, an over-the-counter medication. Dr. Palmer
characterized the incident as a “suicide gesture, not a suicide attempt.” The
hospital records showed evidence of major depression, not psychosis. On cross-
examination, Dr. Palmer stated it had “always been [his] opinion” that defendant’s
psychotic episode on the night of his arrest was more likely a stress-induced or
drug-induced reaction, rather than a long-standing psychological problem.
Dr. William Vicary, defendant’s court-appointed psychiatrist, testified that,
prior to the crime, defendant’s mental condition was “decompensating.” He
explained that, from childhood, defendant had been through “an ongoing series of
traumatic experiences,” and “was getting worse.” He testified that “the best single
diagnostic label” to apply to defendant would be “depression.” He also described
defendant as a passive personality, and explained that people who are excessively
passive “tend to accumulate painful experiences, frustration, resentments [and]
anger . . . until one day like a pressure cooker the top blows off.” Nonetheless, Dr.
Vicary concluded that defendant was sane at the time he committed the crimes.
3. Rebuttal Evidence
A police detective, Kevin Krafft, testified that Victoria Eckstone had told
him William Boorstin, not defendant, was the father of her child. Eckstone
described Boorstin as her “common law husband” of 10 years. Krafft obtained a
certified birth certificate for Amanda that listed Boorstin as her father. Another
police witness, Brent Rollins, testified that he had had a conversation with
Eckstone just after she testified at defendant’s trial. She told him that the child
16
would never see defendant. She also told him that the father’s name was not on
the birth certificate.
Dr. Kaushal Sharma, a forensic psychiatrist, testified that defendant was not
suffering from a mental illness that would have caused him to be legally insane at
the time of the crime. He agreed that defendant was passive in relation to his
mother, but not in other relationships. He characterized defendant’s 1988 suicide
attempt as an impulsive act designed to gain attention and express his
unhappiness. He agreed that defendant may have been suffering from depression.
In his interview with defendant, defendant denied having been sexually molested
by anyone. He also characterized defendant as manipulative during the interview.
His conclusion that defendant was not suffering from a mental illness was not
altered by the testimony presented regarding defendant’s early life, his physical
and sexual abuse, and the events that followed his departure with his mother from
Iran.
II. DISCUSSION: GUILT PHASE ISSUES
A. Claims Relating to Removal and Replacement of Second Counsel
1. Background.
On December 14, 1993, attorney Syamak Shafi-Nia, who had been
privately retained, appeared on defendant’s behalf at his arraignment. Defendant
was also represented at that point by Milton Kerlan. After Kerlan withdrew from
the case, Robert Sheahen was substituted in to conduct the preliminary hearing.
Shafi-Nia had limited experience in criminal law and described his role as being to
17
“help” defendant. Sheahen, by contrast, was a veteran criminal lawyer with death
penalty experience.3
On February 25, 1994, Shafi-Nia and Sheahen were appointed by Judge Ito
to represent defendant to settle the case. Shafi-Nia was appointed pursuant to
Harris v. Superior Court (1977) 19 Cal.3d 786, notwithstanding his lack of
criminal law experience, because of his personal relationship with defendant.
Judge Ito made it clear that Shafi-Nia was being appointed “as second counsel”
because of his “lesser qualifications” as a criminal lawyer.
On June 1, 1994, Judge Ito reappointed Shafi-Nia and Sheahen for all
purposes. The case was transferred to Van Nuys where it was ultimately tried by
Judge Kriegler.
On November 21, 1994, defendant made a Marsden motion (People v.
Marsden (1970) 2 Cal.3d 118) primarily directed at removing Shafi-Nia. He
objected to Shafi-Nia’s “inexperience in not being a criminal attorney and
definitely not qualifying for first degree death penalty cases,” and also faulted
Shafi-Nia for his “inadequate translation” of a magazine article from Farsi to
English. Defendant requested a “second outstanding criminal attorney with
appropriate experience and expertise in death penalty cases.” The trial court
denied the motion, remarking, “I don’t think there’s any need for a second
attorney in this case. I think it’s nice that Mr. Shafi-Nia has been here to serve the
function that he was appointed to serve, but it’s more than the defendant
necessarily would have received.”
3
No preliminary examination was held because the prosecution elected to
proceed by way of grand jury indictment.
18
On November 29, Sheahen informed the court that Shafi-Nia had been in a
traffic accident the previous day for which he was being treated, but did not
request a continuance.
The following day, jury selection began. Sheahen waived Shafi-Nia’s
presence. The court expressed its understanding that Sheahen would be handling
“all the jury selection.” Sheahen agreed that he would be “making the calls here.”
At the afternoon session, however, he said Shafi-Nia was his “communication
link” to defendant and that it was “very important that he be here.” He
acknowledged he was not unable to proceed in Shafi-Nia’s absence and asked that,
if Shafi-Nia could not be present, another lawyer be appointed. He conceded he
had not asked the case to be put over and was prepared to “go the distance” on
jury selection. He also acknowledged that “97 percent of the decisions in this case
have been made by me,” and that Shafi-Nia’s “learning curve” had been like a
“fifty-pound weight that we are dragging around.” Nonetheless, he said, Shafi-Nia
had assisted him on the juror questionnaires. The prosecutor suggested a recess to
allow Sheahen to read the questionnaires. Sheahen requested that the proceedings
be “adjourn[ed]” until Shafi-Nia could return or, if the court declined to do so, he
requested that the court “appoint a new and different second counsel for Mr.
Panah.” The court did not rule on the request, nor did Sheahen press for a ruling.
At some point, the court received a fax from Southern California
Orthopedic and Medical Associates, dated November 29. It stated Shafi-Nia
required bed rest for five days because of back pain due to the traffic accident.
On December 1, both Sheahen and Shafi-Nia appeared. Shafi-Nia wanted
more time to discuss possible settlement and asked for a 10-day continuance or,
alternatively, that another lawyer be appointed for defendant. The prosecutor said
he would not object to the five-day continuance requested for Shafi-Nia to
19
recover, but would object if the continuance was sought to give the defense more
time to talk defendant into taking a plea.
That afternoon, Shafi-Nia’s representation of defendant was again
discussed. The trial court had reviewed the transcript of Shafi-Nia’s appointment
and observed that he had been appointed to facilitate a settlement and because of
his longstanding relationship with defendant. The court remarked that the latter
ground “has nothing to do with this case. And I think in retrospect it has created
nothing but problems for the court and the orderly processing of this case.” The
court also reiterated its belief that the case did not require two lawyers. It denied
the request for a 10-day continuance, noting that it was giving Shafi-Nia until
Monday, December 5 — the five days requested in the November 29 fax.
On December 5, the court received a fax from Dr. Solomon Hakimi saying
Shafi-Nia continued to have severe lower back pain and required bed rest until
December 10, at which point he would be evaluated again. The defense requested
a continuance. It was denied.
The next day, defendant requested that the case be continued until Shafi-
Nia could return or alternatively, for appointment of new counsel. Sheahen told
the court he had spoken with a possible replacement, Marcia Morrissey. The court
indicated it was willing to entertain this request but denied the continuance. Later
that day, when the court was informed Ms. Morrissey was not available, the court
said it would consider another attorney if Sheahen proposed one.
At the end of the court day, the trial court noted Shafi-Nia had not
appeared. It terminated Shafi-Nia’s appointment and appointed William Chais in
his place as second chair. Defendant thanked the court, but Sheahen objected that
replacing Shafi-Nia deprived defendant of Shafi-Nia’s preparation and
communication skills. He also complained that Shafi-Nia remained in possession
of some files. The trial court responded that it would order him to return the files.
20
The following day, the court made the following statement to Mr. Sheahen
to clarify the record: “You had, in fact, requested that a new second attorney be
appointed and . . . your client last week had made that request. [¶] And I denied
that request from [sic] the grounds Mr. Shafi-Nia was fulfilling the limited
function he had been appointed to fulfill. [¶] You repeated your request for a new
second lawyer yesterday, and I took action to ensure that an experienced criminal
lawyer was brought in as second chair in an exercise of my discretion. [¶] That
was not done because I felt that defendant was receiving inadequate representation
or that the absence of Mr. Shafi-Nia had any impact whatever on how the trial had
progressed to that point. [¶] It was done because the case started with two
lawyers, and I thought really just to continue having two lawyers would be in the
defendant’s best interest.” Sheahen responded that the defense would have
preferred a continuance and complained again that Shafi-Nia was in possession of
files in the case. At the end of the day, the defense investigator informed the court
that he had spoken to Shafi-Nia and arranged for the missing files to be brought to
court.
At the end of the guilt phase, the trial court observed that Chais had done an
“outstanding job,” and that what he “added to the trial in terms of good lawyering,
coordination, and communication is far beyond what Mr. Shafi-Nia could have
ever hoped to have added in this case because of his complete lack of criminal
experience.” Sheahen argued that Chais, who was 32 years old, lacked trial
experience in murder cases and should have been given time to prepare. The court
pointed out that the defense had not requested a continuance for that purpose nor
had Chais ever indicated he was unprepared.
21
2. Analysis
Defendant contends the trial court erred by: (1) denying his request for a
continuance to permit Shafi-Nia to recover from his back injury; (2) removing
Shafi-Nia over his objection; (3) appointing Chais; and (4) failing to give Chais
adequate time to prepare. He asserts the errors were of federal constitutional
magnitude. As we explain, we reject his claims.
“ ‘ “The granting or denial of a motion for continuance in the midst of a
trial traditionally rests within the sound discretion of the trial judge who must
consider not only the benefit which the moving party anticipates but also the
likelihood that such benefit will result, the burden on other witnesses, jurors and
the court and, above all, whether substantial justice will be accomplished or
defeated by a granting of the motion.” ’ [Citation.] In the absence of a showing of
an abuse of discretion and prejudice to the defendant, a denial of a motion for a
continuance does not require reversal of a conviction. [Citation.]” (People v.
Barnett (1998) 17 Cal.4th 1044, 1125-1126, quoting People v. Zapien (1993) 4
Cal.4th 929, 972; § 1050, subd. (e).) Defendant bears the burden of establishing
that denial of a continuance request was an abuse of discretion. (People v. Beeler
(1995) 9 Cal.4th 953, 1003.)
There was no such abuse of discretion here, but even if there was,
defendant was not prejudiced. The trial had already commenced and the
respective roles of defendant’s two lawyers, Sheahen and Shafi-Nia, were clearly
delineated. It was understood that Sheahen would be conducting the defense at
trial because, by his own admission, Shafi-Nia was not qualified to try the case.
Sheahen had, at least initially, waived Shafi-Nia’s presence for purposes of jury
selection and even after Sheahen argued that Shafi-Nia should be present, he
acknowledged that he, not Shafi-Nia, was making “97 percent of the decisions in
the case.” Sheahen also conceded he was able to proceed in Shafi-Nia’s absence.
22
Additionally, the continuance requests escalated from an initial request of
five days, which, in effect, the court granted, to 10 days, and then, ultimately, to an
open-ended request.4 Furthermore, the trial court had reason to believe that the
underlying reason for the request was not to allow Shafi-Nia to recover, but to
obtain more time for defense counsel to persuade defendant to plead guilty after
many months of fruitless plea negotiations.
Thus, the trial court was being asked to continue a trial that had already
begun to some unknown point in the future to accommodate defendant’s
secondary lawyer whose role in the trial, it was understood by all participants, was
to have been, at best, limited. Given these circumstances, the trial court did not
abuse its discretion when it denied the request.
Defendant argues that Shafi-Nia’s status as “Harris counsel,” because of
his “long-standing and unique relationship” with defendant, rendered his
participation in the trial essential. We disagree. In Harris, while affirming the
general principle that an indigent defendant’s choice of counsel is not a dispositive
factor in the appointment of counsel, we concluded that the trial court abused its
discretion when it rejected defendants’ request to appoint as counsel attorneys who
had represented them in prior related criminal proceedings and with whom
defendants had developed a relationship of trust and confidence over a substantial
period of time. (Harris v. Superior Court, supra, 19 Cal.3d at p. 799.) We laid
particular stress on the prior representation factor because it “served to provide
those attorneys with an extensive background in various factual and legal matters
which may well become relevant in the instant proceeding — a background which
4
In his reply brief, defendant suggests that even a 30-day continuance would
not have been unreasonable but this number appears nowhere in the record, nor
was a 30-day request made to the trial court.
23
any other attorney appointed to the case would necessarily be called upon to
acquire.” (Id. at p. 798.)
In this case, there was no prior history of representation like that present in
Harris and, unlike the attorneys in Harris, Shafi-Nia was so wholly inexperienced
in criminal matters that, even in appointing him, Judge Ito made it clear he was to
function as “second counsel,” behind Sheahen. The only basis supporting Shafi-
Nia’s appointment was his prior personal relationship with defendant. Fully aware
of the circumstances of Shafi-Nia’s appointment, the trial court concluded that he
was not essential to the defense, but was, at most, a “special benefit bestowed” on
defendant by Judge Ito.
The record bears this out. Just one week before trial began, defendant
specifically sought to remove Shafi-Nia because of Shafi-Nia’s lack of criminal
law experience and his deficiencies as a translator.5 Additionally, the various
defense requests for a continuance also alternatively requested appointment of new
counsel. Moreover, lead counsel Sheahen acknowledged that Shafi-Nia’s lack of
criminal experience was, in essence, a dead weight on the defense. Plainly, by the
time this case reached the trial stage, any value Shafi-Nia may have had to the
defense was exhausted.
Defendant also contends that the denial of his request for a continuance was
detrimental because Shafi-Nia had been in contact with a number of potential
witnesses in Iran and with defendant’s German girlfriend, all of whom may have
testified at the penalty phase but, ultimately, did not. This argument was not made
to the trial judge at the time defendant requested the continuance and to the extent
5 Defendant
contends
that
he was not requesting that Shafi-Nia be relieved,
but for a third lawyer to be appointed, one with criminal law experience. This is a
misreading of the record; defendant was clearly requesting removal of Shafi-Nia.
24
he bases his claim of error on this point, his claim is forfeited. (Cf. People v.
Crovedi (1966) 65 Cal.2d 199, 207 [whether denial of a continuance constitutes a
due process violation “ ‘must be found in the circumstances present in every case,
particularly in the reasons presented to the trial judge at the time the request is
denied’ ”].) In any event, defendant fails to establish either that the testimony of
these witnesses — all of them unidentified except defendant’s German girlfriend
— would have been anything other than cumulative to his mother’s penalty phase
testimony.6
Accordingly, Shafi-Nia’s asserted status as “Harris counsel” did not render
the denial of defendant’s request for a continuance an abuse of discretion. Since
there was no abuse of discretion “there is thus no predicate error on which to base
the [defendant’s] constitutional claims.” (People v. Roybal (1998) 19 Cal.4th 481,
506, fn. 2.) Accordingly, we reject them as well.
Defendant next contends that the trial court abused its discretion and
violated his constitutional rights when it removed Shafi-Nia from the case.
“On appeal, a trial court’s removal of counsel for an indigent criminal
defendant is reviewed for abuse of discretion.” (People v. Cole (2004) 33 Cal.4th
1158, 1187; People v. McKenzie (1983) 34 Cal.3d 616, 629 [a trial court may
remove defense counsel, even over a defendant’s objections, “in order to eliminate
potential conflicts, ensure adequate representations, or prevent substantial
impairment of court proceedings . . .”].) Whether the trial court acted within its
discretion in removing counsel to prevent “disruption of the orderly processes of
6
Defendant does not explain why Shafi-Nia’s removal prevented his German
girlfriend from traveling to the United States to testify since she, presumably,
would not have had the same fear of traveling to this country and participating in
his trial that, he asserts, his potential Iranian witnesses experienced.
25
justice” is to be determined “under the circumstances of the particular case.”
(People v. Crovedi, supra, 65 Cal.2d at p. 208; People v. Strozier (1993) 20
Cal.App.4th 55, 62.) “A court abuses its discretion when it acts unreasonably
under the circumstances of the particular case.” (People v. Cole, supra, 33 Cal.4th
at p. 1185.)
In this case, given Shafi-Nia’s indeterminate unavailability coupled with
defendant’s insistence that he was entitled to two attorneys, the trial court acted
within its discretion in relieving Shafi-Nia and replacing him.
Defendant advances the same arguments he raised in connection with his
claim that the trial court abused its discretion in denying his request for a
continuance. We find them no more persuasive in this context than in the
continuance context and for the same reason we reject them. Further, the cases
upon which he relies are inapposite because they involve the removal of lead
counsel (e.g., People v. Crovedi, supra, 65 Cal.2d 199) or removal for reasons not
present here (e.g., Smith v. Superior Court (1968) 68 Cal.2d 547 [trial court
exceeded its authority by removing counsel for incompetence].)
Even if the trial court abused its discretion either by denying defendant’s
requests for a continuance or by removing Shafi-Nia, we would find any error
harmless. Preliminarily, we reject defendant’s assertion that the removal of Shafi-
Nia, if error, is reversible per se. For this proposition, defendant relies on People
v. Crovedi, supra, 65 Cal.2d 199.
In Crovedi, we found that the trial court denied defendant his federal and
state constitutional right to counsel when it denied his request for a seven-week
continuance of trial to permit his attorney to recover from a heart attack, removed
counsel, and replaced him with the attorney’s law partner over the latter’s protest.
(People v. Crovedi, supra, 65 Cal.2d at pp. 201-203, 208-209.) In this situation,
we concluded the constitutional violation required reversal “regardless of whether
26
a fair trial resulted.” (Id. at p. 205; accord, People v. Gzikowski (1982) 32 Cal.3d
580, 589 [denial of continuance to permit counsel to associate more experienced
cocounsel, after withdrawal of original experienced cocounsel, reversible
regardless of whether a fair trial resulted].) Here, Shafi-Nia was secondary
counsel who had, from the beginning of his representation of defendant,
disavowed any intention of trying the case, leaving that duty to Sheahen. Under
these circumstances, a reversible per se standard is not required. (See People v.
Weaver (2001) 26 Cal.4th 876, 952 [after one cocounsel withdrew, defendant
agreed to proceed with remaining counsel and “nothing in the record suggests
[remaining counsel] was an inexperienced attorney or was otherwise unable to
assume lead counsel status”; distinguishing Gzibowski].)
Defendant was represented by two competent lawyers and nothing in the
record shows he was prejudiced by Shafi-Nia’s removal. Accordingly, any error,
if there was error, was harmless under any standard of review.
Defendant makes two additional, related claims. He asserts that the trial
court erred by appointing Chais because he was unqualified to try a death penalty
case and that the court erred by failing to give Chais sufficient time to prepare.
These claims are forfeited because defendant neither objected to the appointment
of Chais on grounds he was unqualified nor did Chais request a continuance to
prepare. In any event, defendant does not demonstrate Chais rendered ineffective
assistance of counsel. Therefore, he fails to show any prejudice arising from his
claims of error.
B. Denial of Marsden Motions
Defendant contends the trial court erred in denying his three motions for
substitution of counsel. (People v. Marsden, supra, 2 Cal.3d 118 (Marsden).) He
asserts that the trial court did not give him an adequate opportunity to explain his
27
dissatisfaction with counsel, as mandated by Marsden, and that, as a result, his
right to effective assistance of counsel, and other constitutional rights were denied.
We disagree.
1. The November 21, 1994 Hearing
On November 21, 1994, defendant filed a letter with the court in which he
lodged 15 complaints against his lawyers.7 Upon being informed by Shafi-Nia of
7
Those complaints included: “1.) D.N.A expert(s) [¶] 2.) Investigator [¶]
3.) Forensic criminalist(s) [¶] 4.) Writs on Judge’s rulings ‘writing writs’ [sic];
5.) A separate suppression motion specifically for any items or evidence(s) not
listed in the affidavit search warrant. [¶] 6.) Interviewing certain witness(es) [¶]
7.) Mr. Panah’s complaint of counsel Mr. Shafinia inexperience and not being a
criminal attorney and definitely not qualifying for first degree death penalty cases.
‘Note*,’ I feel that I do need two criminal attorneys, one for guilt, and one for
penalty if the need arises. 8.) There for [sic] my request for a second outstanding
criminal attorney with appropriate experience and experti[se] in death penalty
cases. [¶] My counsel, Mr. Shafina’s inadequate translation. For example his
incomplete translation of ‘Exhibit C the Iranian magazine’s article relating to my
case that important parts of it were missing, and misinterpreted by him on 11-17-
94. [¶] 10.) Therefore my request for a farsi translat[o]r to interp[r]et[ ], and
articulate the law, and matters concerning to my case. [¶] 11.) The full access to
all my paper work and whole case file. [¶] 12.) The request from prosecution and
motion to return the original of every and any items seized from property case, or
apartment that has not relate [sic] or value to this case and of those items that
prosecution has no use for and has decided not to use against me, such as: pictures,
audio tapes, videotapes, books, notebooks, posters, video camera, any clothing.
[¶] 13.) My complaints about this harassment of a jailhouse informant have gone
unnoticed, plus my complaints about this vicious criminal with a rap sheet as long
as my sleeves, which I knew was an informant and he kept threatening me with
my life constantly and tried to involve my mother with his lies and tricks, went
unnoticed. As a matter of fact I was back and forth in contact with both my
counsels Mr. Shafina and Mr. Sheahan [sic] and asking them to contact a judge or
police or investigator about this guy and his friends were Mr. Peter Berman and
detective Joel Price. I was denied of any assistance for both my counsel’s [sic] to
get an investigator for investigating my matter to the police, and the judge. [¶]
14.) Request for discovery hearing. [¶] 15.) Request for a specific hearing.
‘Franks v. Delaware’ I’m respectfully bringing this to your attention, I feel
(Fn. cont. on next page)
28
the existence of the letter and some of its contents, the trial court excused the
prosecutor and conducted a Marsden hearing. Responding to the letter, Sheahen
told the court that, based on the evidence, and his discussions with other criminal
defense lawyers who had tried death penalty cases, he had tried to persuade
defendant to move away from a claim of “factual innocence” and either plead
guilty to avoid the death penalty or enter a plea of not guilty by reason of insanity.
With respect to defendant’s desire for a DNA expert, Sheahen said he had
explained to defendant that a DNA expert would only confirm the prosecution’s
serology results. He said he had told defendant the case was “moving toward the
death penalty,” and urged defendant to plead and avoid the death penalty. “And
rather than do that, Mr. Panah has said, ‘Well, let’s get a new lawyer on the case.
Let’s do whatever.’ [¶] And that’s essentially where we are.”
Defendant read a statement in which he claimed a conflict of interest with
counsel existed because they had failed to pursue “certain matters” he asserted
were important to his defense. He also read the complaints he had put in his letter.
In reply, Sheahen again said he had assessed the DNA question and
determined that the downside of a defense examination was greater than the
upside. He also stated that every important witness had been interviewed. He said
he was working on a petition for writ of mandate to review denial of a
disqualification motion under Code of Civil Procedure section 170.1. (See
pp. 51-55, post.) He explained he had not moved to suppress certain items,
(Fn. continued from previous page)
strongly about these issues, and need the court to acknowledge this problem before
proceeding any further. P. v. Ebert (1988) 199 CalApp3d 40, 44 . . . Counsel
whether advisory or otherwise is constitutionally required to act competently.”
29
including the victim’s body, as defendant urged, because, as he had explained to
defendant, there was no legitimate basis to suppress them. He pointed out that the
defense had filed an exhaustive discovery motion and that were no grounds for a
hearing because the prosecution had complied with every request made by the
defense. As to defendant’s request for a Franks hearing (Franks v. Delaware
(1978) 438 U.S. 154 [evidence obtained pursuant to a search warrant based on an
affidavit including false statements, or statements made in reckless disregard of
the truth, must be suppressed]), Sheahen pointed out that such a hearing had been
conducted a month earlier. Regarding the jailhouse informant to whom defendant
referred, Sheahen said the district attorney had informed the defense that a
cellmate of defendant’s had been used to attempt to elicit incriminating statements
from defendant about eliminating a witness. (See pp. 65-67, post.) Their
conversations had been taped and reviewed by Sheahen. He said nothing on them
was admissible in the guilt phase and if the prosecution tried to use them at the
penalty phase their probative value was minimal because defendant “doesn’t say
much of anything on these tapes.”
The trial court found that “Mr. Sheahen has done a very, very thorough and
comprehensive job in presenting the 1538.5 issues, the 402 issues, the change of
venue motion, the challenge to the entire courthouse, including myself, as well as
the renewed motion for change of venue or transfer of district.” It found
Sheahen’s decision not to call a DNA expert was a “sound” tactical decision.
When the trial court asked defendant if there were specific names of witnesses
whom he believed counsel had not interviewed, defendant was unable to provide
them. Sheahen stated if the case went to trial he would seek appointment of an
investigator to interview any remaining witnesses. Concluding there had been no
irreconcilable breakdown of the attorney-client relationship, the trial court denied
the motion.
30
2. The December 5-6, 1994 Hearing
On December 5, defendant requested another Marsden hearing. The trial
court excused the prosecutor. Pressed by the trial court to state his specific
complaints against Mr. Sheahen, defendant complained that Sheahen had failed to
adequately communicate with him, leaving most of the communication to Shafi-
Nia and that Shafi-Nia’s absence was having a “negative effect” on Sheahen’s
representation of him. He also complained Sheahen had failed to adequately
investigate and prepare an “alibi defense.” Specifically, he stated that Sheahen
had not talked to a professor of his who knew he had been suicidal. He also said
Sheahen had failed to interview other witnesses, including Ronald Hicks, Victoria
Eckstone, Adele Bowen and Bruce Cousins. He complained, moreover, that
Sheahen had not investigated mental defenses or sought to suppress evidence.
Defendant said Sheahen had told him he would be “found guilty regardless . . . .”
The court interrupted and observed that Sheahen had visited defendant
countless times in lockup and arranged meetings with defendant at county jail.
Defendant complained, however, that Sheahen had only talked to him about
“taking a deal.”
In response, Sheahen agreed with defendant that a substantial amount of
communication with him had been done through Shafi-Nia, but said he also had
met repeatedly with defendant. As to defendant’s complaint about suppression of
evidence, Sheahen pointed out that “we had a month long hearing where we
moved to suppress.” With respect to defendant’s claim about alibi witnesses,
Sheahen said defendant “doesn’t have an alibi witness because he was there at the
scene of the crime.” As to the professor defendant mentioned, Sheahen stated
there were other witnesses to defendant’s mental state but he might use the
professor. Regarding defendant’s claim about Sheahen’s assessment of the case,
Sheahen said, the record showed the evidence against defendant was substantial.
31
“He wanted me to use a two bearded strangers defense. That is absolutely absurd
and I will not use it.”8 The trial court denied the motion. It pointed out that
Sheahen “cannot make up defenses where no defenses exist. [¶] His duty is to
give the defendant solid advice and do the best he can under the circumstances.
[¶] There is no doubt in my mind Mr. Sheahen has done exactly that . . . . [¶] I
find there’s no conflict. No irreparable breakdown in the attorney-client
relationship.”
The following day, defendant appeared in court with a two- or three-page
handwritten note and complained the trial court had cut him off before he could
make his record on the “Marsden Bonin hearing.” The court declined to excuse
the prosecutors because it said it had heard all of defendant’s claims. Nonetheless,
with Sheahen’s assistance, defendant was allowed to state his complaints.
Defendant complained about Sheahen’s failure to prepare for the penalty phase.
He said he wanted his father to come from Iran for the penalty phase. Sheahen
told the court he had “looked into” having defendant’s father come but “he is
presently in an immigration status that precludes him from leaving Iran to come to
this country.” The trial court stated it was “going to stand by my rulings regarding
the representation given the defendant in this case.”
3. The January 3, 1995 Hearing
On January 3, after the guilt phase but before the penalty phase, defendant
made a third Marsden motion. The trial court declined to excuse the prosecutors
8
By “two bearded strangers defense,” it seems Sheahen was referring to a
defense that blamed others for the crime.
32
because defendant’s complaints related to tactical decisions made during the guilt
phrase.9
Defendant complained that counsel had not argued his ring could not have
made the scratches on Nicole’s thigh and had not called a forensic expert to
establish this point. He said counsel should have contended he had not worn the
ring for a long time. Defendant also complained about counsel’s failure to
impeach the victim’s mother and Rauni Campbell.
The trial court stated that, with respect to the ring, counsel had objected to
its admission and conducted cross-examination on whether it caused the scratches
on the victim’s body but that, in any event, it was an “insignificant factor” on
identity, the only possible issue to which it could have been relevant. With
respect to attacking Mrs. Parker’s credibility, the trial court stated this was a
disagreement over tactics. Regarding the cross-examination of Rauni Campbell,
the trial court found defendant’s complaints were conclusory and that, in any
event, a tactical decision was involved. The trial court denied the motion.
4. Analysis
“A defendant is entitled to have appointed counsel discharged upon a
showing that counsel is not providing adequate representation or that counsel and
defendant have become embroiled in such an irreconcilable conflict that
ineffective representation is likely to result.” (People v. Jones (2003) 29 Cal.4th
1229, 1244-1245.) When the defendant seeks to remove appointed counsel “the
trial court must permit the defendant to explain the basis of his contention and to
9
Defense counsel, Mr. Sheahen, objected to the trial court’s failure to
conduct this hearing in camera. The trial court overruled his objection. Defendant
does not contest the propriety of this ruling.
33
relate specific instances of counsel’s inadequacy.” (People v. Cole, supra, 33
Cal.4th at p. 1190.) The trial court’s ruling is reviewed for abuse of discretion.
(Ibid.)
Defendant asserts he was not given a sufficient opportunity to justify his
request for new appointed counsel, that his attorney argued against him, and that
the trial court improperly defended counsel. These claims are meritless. The
record demonstrates that defendant was afforded the opportunity to explain the
basis of his Marsden requests and to cite specific instances of counsel’s inadequate
performance. His complaints, however, amounted to nothing more than tactical
disagreements between defendant and counsel. Given the overwhelming evidence
of defendant’s guilt, defense counsel was not obliged to pursue futile lines of
defense simply because defendant demanded them, and his refusal to do so did not
justify his removal as counsel. (People v. Welch (1999) 20 Cal.4th 701, 728-729
[“Tactical disagreements between the defendant and his attorney do not by
themselves constitute an ‘irreconcilable conflict’ ”].)
Furthermore, the trial court did not err in soliciting a response from defense
counsel to defendant’s complaints, nor was counsel “arguing” against him when
he did so. Inquiring of counsel is necessary for the trial court to evaluate the
defendant’s request and for appellate review. (See, e.g., People v. Fierro (1991) 1
Cal.4th 173, 205; People v. Memro (1995) 11 Cal.4th 786, 854-855.) Nor did the
court improperly defend counsel against defendant’s complaints when it disagreed
with certain of defendant’s assertions. The trial court is not required to sit mute
while defendant advances patently erroneous grounds for substitution of counsel.
(See, e.g., People v. Valdez (2004) 32 Cal.4th 73, 95.) We conclude defendant
failed to show the trial court abused its discretion in denying his Marsden motions
and, of necessity, reject his claims of constitutional violation as well.
34
C. Mental State Issues
1. Failure to Order Competency Hearing
Defendant contends the trial court erred by declining to order a competency
hearing pursuant to section 1368.
“When the accused presents substantial evidence of incompetence, due
process requires that the trial court conduct a full competency hearing. [Citation.]
‘Evidence is substantial if it raises a reasonable doubt about the defendant’s
competence to stand trial.’ ” (People v. Lawley (2002) 27 Cal.4th 102, 131,
quoting People v. Danielson (1992) 3 Cal.4th 691, 726.) Absent substantial
evidence of defendant’s incompetence, “the decision to order such a hearing [is]
left to the court’s discretion.” (People v. Gallego (1990) 52 Cal.3d 115, 163.)
On November 28, 1994, just before trial began, the trial court learned that
Dr. Coburn, defendant’s court-appointed psychiatrist, had written defense counsel
expressing his doubt that defendant was competent to stand trial. According to the
trial court, the letter indicated that defendant was fully aware of the charges
against him but “he has little understanding of the nature of the plea change and
has significant impairment in his ability to rationally cooperate with counsel . . . .”
The court found that the letter was too vague to raise a doubt about defendant’s
competence. It asked Dr. Vicary, the defense psychiatric expert, and Dr. Coburn
to interview defendant and assess his competence to stand trial. As part of their
assessment, the court asked them to examine the November 21 Marsden
proceeding transcript, calling it “highly probative of whether or not the defendant
understands the nature of the proceedings and can assist counsel.”
Defense counsel Sheahen stated that, although working with defendant had
been “extremely difficult” and at times defendant “lack[ed] [a] . . . grasp of what
[was] going on,” he was “surprised that Dr. Coburn felt there was a 1368 issue”
and was uncertain whether defendant’s behavior amounted to incompetence. The
35
court also observed that defendant had “repeatedly assisted counsel.” Shafi-Nia
disagreed with Sheahen and the court, stating that he believed defendant was
incompetent.
After reviewing the transcript, and interviewing defendant, both Coburn
and Vicary opined that defendant was competent to stand trial. The trial court
declined to conduct a competency hearing.
Defendant contends that Dr. Coburn’s somewhat equivocal statements
about his competence and statements by defense counsel constituted substantial
evidence of incompetence. They do not. While Coburn testified that defendant
was “fragile” and “disturbed,” he also repeatedly acknowledged that defendant
was not incompetent to stand trial. Moreover, defendant ignores the opinion of the
other defense psychiatric expert, Dr. Vicary, who testified without reservation that
defendant was competent.
Nor did comments by defense counsel constitute substantial evidence of
incompetence. First, defense counsel were not in agreement on the issue of
defendant’s competence. While Shafi-Nia claimed that defendant was
incompetent, Sheahen, the more experienced criminal defense attorney, did not
share this belief. Second, even if both counsel had agreed that defendant was
incompetent, such opinion, standing alone, would not have been dispositive of the
issue but only one factor for the trial court to consider in determining whether
substantial evidence existed. (People v. Howard (1992) 1 Cal.4th 1132, 1164.)
Balanced against the conflicting statements of counsel were the opinions of the
experts that defendant was competent and the trial court’s own observation that
defendant had repeatedly assisted in his defense, including bringing and arguing
his first Marsden motion. (See People v. Hayes (1999) 21 Cal.4th 1211, 1282
[defendant’s participation in his trial “demonstrate[s] beyond any doubt that he
was fully aware of the nature of the proceedings and able to assist counsel”].) We
36
conclude therefore that the trial court did not abuse its discretion in declining to
conduct a competency hearing.10
2. Informing Jury of NGI Plea
Defendant entered dual pleas of guilty and not guilty by reason of insanity
(NGI). Where such dual pleas are entered, section 1026, subdivision (a) (section
1026) provides for a bifurcated trial.11 The trial court told counsel it would inform
prospective jurors that defendant had entered an NGI plea. Defense counsel
objected that it would be prejudicial to do so. The trial court responded: “I think
the jury needs to be advised of the plea and just what they’re facing in this case.”
In the voir dire proceedings that followed, two prospective jurors were excused for
10
To support his claim that substantial evidence of incompetence existed,
defendant also cites the preliminary hearing testimony of Dr. Palmer — the
physician who treated him after his arrest — that, at that time, defendant appeared
to be psychotic, and a letter written in February 1994 by defense counsel Sheahen
to the presiding judge of the superior court, in which counsel alluded to
defendant’s history of mental instability and hospitalization. We do not review the
propriety of the trial court’s competency ruling based on evidence that was not
presented to it at the time it made that ruling. (Cf. People v. Welch, supra, 20
Cal.4th at p. 739 [“We review the correctness of the trial court’s ruling at the time
it was made, however, and not by reference to evidence produced at a later date”].)
In any event, “[e]vidence regarding past events that does no more than form the
basis for speculation regarding possible current incompetence is not sufficient.”
(People v. Hayes, supra, 21 Cal.4th at p. 1281.) Both Dr. Palmer’s testimony and
counsel’s letter fall into this category.
11
“When a defendant pleads not guilty by reason by insanity, and also joins
with it another plea or pleas, the defendant shall first be tried as if only such other
plea or pleas had been entered, and in that trial the defendant shall be conclusively
presumed to have been sane at the time the offense is alleged to have been
committed. If the jury shall find the defendant guilty, or if the defendant pleads
only not guilty by reason of insanity, then the question whether the defendant was
sane or insane at the time the offense was committed shall be promptly tried,
either before the same jury or before a new jury in the discretion of the court.”
(§ 1026, subd. (a).)
37
cause, one because he told the court that, if the prosecution proved the defendant
guilty, he could not accept an insanity defense, and the other because she did not
understand the burden of proof would shift during a sanity phase.
Defendant contends that informing prospective jurors about his NGI plea
violated the spirit of section 1026, and various constitutional protections including
the privilege against self-incrimination and the presumption of innocence.
Nothing in the statute, either expressly or by implication, bars the trial court
from informing prospective jurors about a defendant’s NGI plea and defendant
fails to articulate a basis for his claim of statutory violation. His constitutional
claims are based on the premise that the jury would have been so prejudiced by
having learned of his NGI plea it would have been unable to impartially determine
his guilt. A similar claim was made and rejected in People v. Guillebeau (1980)
107 Cal.App.3d 531. There, the court remarked: “As to the contention that once
the jury learns of the double plea it cannot approach the question of guilt in an
impartial way, it is sufficient to cite the following passage from People v. Leong
Fook [(1928)] 206 Cal. 64 at page 78: ‘We must assume that a fair and impartial
jury of intelligent men and women would obey . . . instructions and would
therefore hold in reserve their ultimate finding upon the issue of the defendant’s
sanity until that separate issue and the evidence supporting it had, in the prescribed
order of the trial, been committed to it for determination. We are not to assume
that such a jury will cease to be fair and impartial as the cause progresses upon its
successive issues, but, on the contrary, we must assume, in the absence of any
other showing, that the jury has retained its attitude of fairness and impartiality
under the changed procedure as before until the whole cause . . . has been
determined.’ ” (Id. at p. 543.)
38
We agree with this analysis. Defendant’s claim that the jury was
prejudiced by learning about his double plea at the outset of trial is wholly
speculative. There was no error and, necessarily, no constitutional violations.
3. Denial of Request to Appoint a Third Mental Health Expert
After defendant entered his NGI plea, the trial court, pursuant to section
1027, appointed two psychiatrists to examine him, Dr. Vicary for the defense and
Dr. Sharma for the prosecution. At the conclusion of the guilt phase, defense
counsel informed the court that defendant was requesting appointment of a
psychologist to examine him for the sanity phase. Counsel told the court
defendant had “declined to cooperate” with Vicary or Sharma. The trial court
refused to appoint a psychologist but without prejudice to renewal of the request.12
Defendant did not renew his request. Ultimately he withdrew his NGI plea.
Defendant contends the trial court’s refusal to appoint a third mental health
expert violated his federal and state constitutional rights, including the right to
ancillary defense services as part of the right to effective assistance to counsel.
(Corenevsky v. Superior Court (1984) 36 Cal.3d 307, 319-320.) His claim is
without merit.
As a procedural matter, defendant failed to argue in the trial court that the
denial of a third mental health expert amounted to a violation of his federal
constitutional rights. His constitutional claim is, therefore, forfeited. (People v.
Saunders (1993) 5 Cal.4th 580, 590.)
12
When a defendant enters an NGI plea, section 1027 requires the trial court
to appoint two psychiatrists or qualified psychologists to examine the defendant
and vests the trial court with discretion to appoint a third.
39
His claim is also substantively without merit. Defendant contends that
under California law, he has a federal constitutional right to effective assistance of
a mental health expert. Not so. “Neither Ake [v. Oklahoma (1985) 470 U.S. 68]
. . . nor the broader rule guaranteeing court-appointed experts necessary for the
preparation of a defense [citation], gives rise to a federal constitutional right to the
effective assistance of a mental health expert.” (People v. Samayoa (1997) 15
Cal.4th 795, 838.) In any event, defendant received reasonable ancillary services
and there was no showing that the appointed psychiatrists were unqualified or
incapable of administering the psychologist tests defendant now argues were
crucial to his defense. The issue, rather, is whether a defendant’s unjustified
refusal to cooperate with qualified, court-appointed mental health experts required
the trial court to appoint another expert. We think not. (See, e.g., People v.
Messerly (1941) 46 Cal.App.2d 718, 722 [trial court did not abuse its discretion in
refusing to appoint a third mental health expert where two experts had been
appointed pursuant to section 1027, had examined the defendant, were cross-
examined and “(n)o objections were made at the trial as to their qualifications”].)
4. Withdrawal of NGI Plea
Prior to the commencement of the sanity phase, defendant sought an
advance ruling from the trial court to limit the scope of cross-examination if he
testified. He wanted to testify only to matters regarding his childhood and his
upbringing and to preclude the prosecution from cross-examining him about the
murder. The trial court declined to issue an “advisory opinion” regarding the
scope of cross-examination in advance of hearing defendant’s direct testimony.
Defendant claimed the court left him “no choice” but to withdraw his plea,
but the court refused to accept the withdrawal. Defendant began to withdraw his
40
plea a second time, but then again equivocated and the trial court again declined to
proceed unless defendant’s withdrawal was unequivocal.
The prosecutor, citing People v. Bloom (1989) 48 Cal.3d 1194, argued that
defendant should be allowed to withdraw his NGI plea if there was no doubt as to
his sanity and the examining psychiatrists unanimously agreed he was sane.
Without objection, the trial court unsealed the reports of Drs. Vicary and Sharma,
and read portions of the reports into the record. The court noted that both Vicary
and Sharma concluded that defendant was legally sane at the time of the
commission of the offenses. Defendant was then allowed to withdraw his NGI
plea. The court stated it was “satisfied that defendant understood the nature of his
plea and that he furthermore understood his right to a sanity phase trial, and that he
has effectively and knowingly and intelligently given up that right and personally
withdrawn his plea of not guilty by reason of insanity.”
Defendant argues that the trial court’s refusal to give him an advance ruling
on the scope of cross-examination coerced him into withdrawing his NGI plea. He
also suggests the withdrawal was involuntary because there were doubts as to his
sanity. Neither claim has merit.
Defendant’s withdrawal of his plea was not coerced by the trial court’s
adverse ruling on his motion to limit the scope of cross-examination because there
was no such ruling. Rather, the trial court properly declined to provide a ruling in
advance of defendant’s testimony. “Defendant had no inherent right to a binding
advance ruling which would spare him the necessity of raising specific objections
before the jury.” (People v. Keenan (1988) 46 Cal.3d 478, 513; People v.
Sandoval (1992) 4 Cal.4th 155, 178-179.)
Regarding his second claim, unlike People v. Merkouris (1956) 46 Cal.2d
540, 553, upon which defendant relies, there was no conflict among the experts
regarding defendant’s sanity at the time of the offense. (See People v. Bloom,
41
supra, 48 Cal.3d at p. 1214 [where there is no doubt in the trial court’s mind of
defendant’s sanity, and the reports of the examining psychiatrists agree he was
sane, defendant should be allowed to withdraw his NGI plea].) Accordingly, the
withdrawal of his NGI plea was not involuntary.
D. Juror Issues
1. Failure to Remove Two Jurors for Cause
Defendant contends the trial court erred by failing to remove two
prospective jurors for cause. Assuming, without deciding, there was error,
defendant was not prejudiced in either case. One of the prospective jurors, G.B.,
did not sit on the jury because she was excused by the prosecution. (People v.
Boyette (2002) 29 Cal.4th 381, 419). The other, L.W., was excused by the defense
via a peremptory challenge, but because the defense did not exhaust its
peremptory challenges, the claim of error is waived. (People v. Seaton (2001) 26
Cal.4th 598, 637.)
Defendant nonetheless argues he was prejudiced because the prospective
jurors were not removed until toward the end of jury selection and were thus able
to “intermingle and influence the objectivity of those potential jurors who
ultimately become members of [defendant’s] panel.” This is sheer speculation.
2. Wheeler Claim
Defendant contends the trial court erred in denying his Wheeler motion
(People v. Wheeler (1978) 22 Cal.3d 258) based on the prosecutor’s use of
peremptory challenges to remove women from the jury.13
13
Defendant also asserts this claim under Batson v. Kentucky (1986) 476 U.S.
79, even though he apparently did not explicitly raise the federal claim below.
Nonetheless, we may properly consider the Batson claim on its merits (see People
v. Yeoman (2003) 31 Cal.4th 93, 117-118 [a claim is not waived on appeal when
(Fn. cont. on next page)
42
“ ‘In [Wheeler] . . . we held that the use of peremptory challenges by a
prosecutor to strike prospective jurors on the basis of group membership violates
the right of a criminal defendant to trial by a jury drawn from a representative
cross-section of the community under article I, section 16, of the California
Constitution. Subsequently, in Batson v. Kentucky (1986) 476 U.S. 79, 84-89 . . .
the United States Supreme Court held that such a practice violates, inter alia, the
defendant’s right to equal protection of the laws under the Fourteenth Amendment
to the United States Constitution. . . .’ ” (People v. Catlin (2001) 26 Cal.4th 81,
116.) Women constitute a cognizable group for purposes of Wheeler. (People v.
Crittenden (1994) 9 Cal.4th 83, 115.) “The United States Supreme Court has
given this explanation of the process required when a party claims that an
opponent has improperly discriminated in the exercise of peremptory challenges:
‘[O]nce the opponent of a peremptory challenge has made out a prima facie case
of racial [or gender] discrimination (step one), the burden of production shifts to
the proponent of the strike to come forward with a race-neutral [or gender-neutral]
explanation (step two). If a race-neutral [or gender-neutral] explanation is
tendered, the trial court must then decide (step three) whether the opponent of the
strike has proved purposeful racial [or gender] discrimination.’ (Burkett v. Elem
(1995) 514 U.S. 765, 767 [115 S.Ct. 1769, 1770-1771, 131 L.Ed.2d 834].)”
(People v. Silva (2001) 25 Cal.4th 345, 384.)
(Fn. continued from previous page)
the state and federal standards and the factual inquiry are essentially the same].)
Accordingly, defendant’s Batson claim lacks merit for the same reason as his
Wheeler claim.
43
Defendant brought four gender-based Wheeler motions. On each occasion,
the trial court concluded that a prima facie case had not been made. Only once did
the prosecutor offer a comment to justify his use of a peremptory challenge.14
When, as here, “a trial court denied a Wheeler motion because it finds no prima
facie case of group bias was established, the reviewing court considers the entire
record of voir dire. [Citation.] ‘If the record “suggests grounds upon which the
prosecutor might reasonably have challenged” the jurors in question, we affirm.’ ”
(People v. Davenport (1995) 11 Cal.4th 1171, 1200, quoting People v. Howard
(1992) 1 Cal.4th 1132, 1155.)
Defendant concedes that the prosecution may have been justified in
excusing two of the ten women on whom it used peremptory challenges, J.R. and
M.C. We therefore consider only the remaining eight.
Prospective Juror M.A. Prospective Juror M.A. stated on her questionnaire
that she strongly agreed with the statement that “[r]egardless of the evidence,
anyone who intentionally kills another person should never get the death penalty.”
She also indicated her belief that life without possibility of parole might be worse
for a defendant than death. Nonetheless, she stated she would be able to return a
death sentence. She indicated further that she had had a negative experience with
a police officer who gave her a “traffic ticket without cause,” that she or someone
close to her had been the victim of a robbery and her niece had been arrested or
charged with a crime.
Prospective Juror G.B. Prospective Juror G.B. disclosed in camera that her
daughter had been raped by a psychiatrist and the case was pending. When asked
14
Defendant made a fifth race-based Wheeler motion, but he does not argue
the trial court improperly denied it.
44
whether she could fairly listen to psychiatrists and not be upset about what had
happened to her daughter, she replied, “I would have to check it in his record and
the credibility and see if they had any previous problems or any incidents, but it’s
a very heavy situation.” When asked if she would rather not sit on the case
because of the NGI plea, she replied, “Probably so.”15
Prospective Juror J.W. Prospective Juror J.W. responded to the question
about her general feelings regarding the death penalty that “only God gives and
takes away, but honestly, if someone close to me [was] involved, I don’t know the
[depth] of my [compassion.]” On the statement, “[r]egardless of the evidence,
anyone who intentionally kills another person should never get the death penalty,”
she responded, “[t]here is so much involved I don’t know what to answer.” On the
other hand, when asked about a spiritual or religious belief pertaining to the death
penalty, she wrote, “Eye for an eye [¶] Do not befriend a bad person.” However,
she agreed that life without possibility of parole might be a worse punishment than
death.
Prospective Juror R.M. Prospective Juror R.M. indicated it might be
difficult for her to sit on the case because she had children of her own. She also
responded, to a question regarding any religious or moral beliefs that would make
it difficult for her to sit as a juror, with “the Ten Commandments.” She again
referred to the Ten Commandments and “Thou Shalt Not Kill,” in response to the
question whether she had any spiritual or religious beliefs that would have a
bearing on the death penalty. Nonetheless, she also stated she had voted for the
death penalty. In court, when asked to explain her reference to the Ten
15
This is the same juror who defendant claimed should have been excused for
cause because her daughter was raped by a psychiatrist.
45
Commandments, she replied, “One of the commandments obviously is thou shalt
not kill. And there’s a contradiction in my answer. I don’t believe anybody
should kill anyone. However, if someone is guilty of murder, it’s my belief that
they get what they deserve, be it life in prison or the death penalty, depending on
how the jury decides to go.”
Prospective Juror M.S. Prospective Juror M.S. also indicated on her
questionnaire that she had religious scruples that might make it difficult to pass
judgment on another, also citing the Ten Commandments. She agreed somewhat
with the statement that “[r]egardless of the evidence, anyone who intentionally
kills another person should never get the death penalty,” explaining “selfdefence
[sic].” Nonetheless, she also felt that life without possibility of parole was not a
severe punishment. She responded to the question about why she might or might
not want to sit on the case by writing, “[d]ue to my religious background and
having children of my own and grandchildren I feel that it would be impossible.”
She also indicated she was under a doctor’s care for stress. She indicated further
that her ex-husband had been molested as a child, that she could not evaluate the
credibility of police the same as other witnesses, believed that criminals were
favored by the legal system, and would have a difficult time keeping an open
mind. In court, she continued to express religious reservations about her ability to
sit as a juror.
Prospective Juror B.B. Prospective Juror B.B. expressed skepticism
regarding the validity of psychiatric opinions and, citing her job, answered yes to
the question whether she had pressing business that might cause her to wish to
“hurry along” the decisionmaking process. She expressed dislike of the death
penalty although she also felt it was necessary to deter crime and recognized that
one of the commandments was “[t]hou shalt not kill.” She also stated she would
“try hard to be an impartial juror, but a child is very precious.”
46
Prospective Juror B.D. Prospective Alternate Juror B.D. indicated that she
agreed somewhat with the statement that “[r]egardless of the evidence, anyone
who intentionally kills another person should never get the death penalty” and
expressed the view that life without possibility of parole would be a “living Hell.”
She had taken college-level courses in psychology and stated that “psychological
tests should give insight” into the defendant in deciding upon a penalty.
Prospective Juror A.R. Prospective Alternate Juror A.R. had a bachelor of
arts degree in psychology and sociology and was undergoing therapy for
obsessive-compulsive disorder. She expressed the view that life without
possibility of parole was “better than being put to death – at least they still have
the gift of life,” and that she would need to be “absolutely sure” before she could
impose the death penalty. However, she also believed the death penalty should be
enforced “more than it generally is” and that it is a “positive.” She also stated that
one brother had been murdered and another had been arrested or charged with
drunk driving and theft.
Defendant focuses on the attitudes expressed by these jurors regarding the
death penalty because this was a factor cited by the prosecutor when he explained
why he excused prospective juror B.D. Defendant argues that while this may have
been sufficient reason to excuse her, it did not provide support for the bulk of the
prosecutor’s peremptory challenges. We disagree. In the first place, each of these
prospective jurors expressed some reservations or religious scruples about the
death penalty and, while some of them nonetheless stated they could impose the
death penalty, “neither the prosecutor nor the trial court was required to take the
jurors’ answers at face value.” (People v. Boyette, supra, 29 Cal.4th at p. 422.)
Even if these reservations or scruples were insufficient to challenge a
prospective juror for cause, such skepticism nonetheless constitutes a gender-
neutral reason for a peremptory challenge. (People v. Turner (1994) 8 Cal.4th
47
137, 171; People v. Ochoa (2001) 26 Cal.4th 398, 432-433.) This provided a
nondiscriminatory reason for the prosecutor to have excused J.W., M.A., R.M.,
M.S., and A.R.
Moreover, the prospective jurors’ views on the death penalty were not the
only nondiscriminatory basis for exclusion. Juror M.A., for example, also
revealed a negative experience with a police officer and that a niece had been
arrested or charged with a crime. Prospective Juror A.R. also had a relative who
had been arrested or charged with a crime. A negative experience with police or
the arrest of a prospective juror or a close relative is a gender-neutral reason for
exclusion. (People v. Wheeler, supra, 22 Cal.3d at p. 277, fn. 18; People v.
Turner, supra, 8 Cal.4th at p. 171.)
Four other prospective jurors, G.B., R.M., M.S., and B.B., expressed their
reluctance to sit on the jury for various reasons: G.B., because the rape of her
daughter by a psychiatrist might have made it difficult to evaluate testimony by
psychiatrists; R.M., because she had children of her own; M.S. stated that because
of her religious background and because she had children and grandchildren it
would be “impossible” for her to sit on the jury; and B.B stated that concern about
her job might cause her to wish to “hurry along” the decisionmaking process.
M.S. was also under a doctor’s care for stress. Because their reluctance to serve,
and the reasons for it, might have impaired their impartiality or their ability to
deliberate, these also constituted gender-neutral reasons for the exercise of a
peremptory challenge.
We conclude, therefore, that the record suggests gender-neutral reasons for
the use of peremptory challenges as to each juror excused and, therefore, affirm
the trial court’s ruling that no prima facie case was established. (People v.
Davenport, supra, 11 Cal.4th at p. 1200.) We note, in this connection, that the
Wheeler claim was particularly weak as it consisted of little more than an assertion
48
that a number of prospective jurors from a cognizable group had been excused.
Such a bare claim falls far short of “rais[ing] a reasonable inference that the
opposing party has challenged the jurors because of their race or other group
association.” (People v. McDermott (2002) 28 Cal.4th 946, 970.)
In this light, we consider defendant’s further claim that the trial court’s
consideration of his motion was perfunctory because it only reviewed two of the
10 juror questionnaires when the motions were made. He also contends that the
trial court acted as an advocate for the prosecutor. The record is clear that the trial
court read the juror questionnaires in preparation for voir dire and asked pertinent
follow-up questions of some of the jurors based on its evaluation of the
questionnaires. Thus, the trial court was not unprepared to rule on defendant’s
motions. Second, given the weakness of defendant’s prima facie showing, the trial
court’s response was appropriate. Finally, the trial court did not act as the
prosecutor’s advocate either because it found, based on defendant’s bare-bones
allegations, that a prima facie case was not made or because it did not further
inquire of the prosecutor. Absent a prima facie showing, the prosecutor was not
required to offer such explanation nor was the court required to ask it of him.
3. Defendant’s Exclusion from Jury Selection Hearing
“A criminal defendant’s federal constitutional right to be present at trial,
largely rooted in the confrontation clause of the Sixth Amendment, also enjoys
protection through the due process clause of the Fifth and Fourteenth Amendments
[citation] ‘ “whenever his presence has a relation, reasonably substantial, to the
fulness of his opportunity to defendant against the charge,” ’ but not ‘ “when
presence would be useless, or the benefit but a shadow.” ’ (Kentucky v. Stincer
(1987) 482 U.S. 730, 745 [107 S.Ct. 2658, 2667, 96 L.Ed.2d 631], quoting Snyder
v. Massachusetts (1934) 291 U.S. 97, 105-107 [54 S.Ct. 330, 332-333, 78 L.Ed.
49
674, 90 A.L.R. 575].) Article I, section 15 of the California Constitution applies
the same standard. [Citation].” (People v. Ochoa, supra, 26 Cal.4th at p. 433.)
Defendant contends these rights were violated by his exclusion from an in
camera proceeding during voir dire at which the prosecutor and defense counsel
passed for cause and each exercised three peremptory challenges. Even if his
exclusion was error, he fails to show prejudice. (People v. Bradford (1997) 15
Cal.4th 1229, 1357 [“Defendant has the burden of demonstrating that his absence
prejudiced his case or denied him a fair trial”].)
Defendant cites nothing in the record to support his generalized claim that,
during this session, his attorney excused any juror whom defendant would have
wanted to retain; thus his argument is speculative. Defendant’s further claim that
he was unable to review the prosecutor’s choices is similarly unconvincing. The
only ground on which the defense could have objected to the prosecutor’s exercise
of peremptory challenges would have been for the discriminatory use of such
challenges under Wheeler/Batson but he fails to show that any such issue arose
during the in camera session. His remaining claim, that defense counsel failed to
excuse a juror who had connections to the victim and her family, also fails. The
defense did not exhaust its peremptory challenges at the in camera session and
could have excused the juror subsequently. That the juror was not excused cannot
be attributed to defendant’s absence from the in camera session.
4. Trial Court’s Voir Dire Reference to “Murder”
During voir dire, in the course of questioning a prospective juror, the trial
court said, “You know, to be quite blunt about it, there’s one thing that’s not in
dispute in this case. That’s that an eight-year-old girl was murdered.” Defense
counsel moved for a mistrial, arguing that the trial court had prejudged the
evidence by referring to the killing as a murder. The trial court denied the motion,
50
observing, “I think the point you’re making is a point that, when the case is finally
submitted to the jury, no juror will even remember.” Nonetheless, at the
prosecutor’s prompting, the trial court later repeatedly told prospective jurors that
it had not intended to imply a murder had occurred, but that this was a
determination for the jury.
Defendant contends the trial court erred when it denied his motion for a
mistrial because its reference to murder lowered the prosecution’s burden of proof.
Not so. Denial of a motion for a mistrial is reviewed for abuse of discretion and
should be granted “ ‘only when a party’s chances of receiving a fair trial have
been irreparably damaged.’ ” (People v. Ayala (2000) 23 Cal.4th 225, 282,
quoting People v. Welch (1999) 20 Cal.4th 701, 749.) The motion should be
granted only if the trial court is informed of the prejudice and it judges the
prejudice to be insusceptible of being cured by admonition or instruction. (People
v. Lucero (2000) 23 Cal.4th 692, 713-714.)
The trial court’s brief reference to “murder” in the particular context in
which it occurred was not prejudicial but, in any event, any prejudice was cured by
the court’s subsequent clarifications.
E. Disqualification Motion
Defendant contends that the trial court committed statutory and
constitutional error when it struck his motion to disqualify the court and all judges
at the Van Nuys courthouse. (Code Civ. Proc., § 170.1, subd. (a)(6)(C).) We find
no error.
Preliminarily, his claim is not cognizable on appeal. As set forth in Code of
Civil Procedure section 170.3, subdivision (d): “The determination of the question
of the disqualification of a judge is not an appealable order and may be reviewed
only by a writ of mandate from the appropriate court of appeal sought within 10
51
days of notice to the parties of the decision and only by the parties to the
proceeding.” As we have repeatedly held, the statute means what it says: Code of
Civil Procedure section 170.3, subdivision (d) provides the exclusive means for
seeking review of a ruling on a challenge to a judge, whether the challenge is for
cause or peremptory. (People v. Hull (1991) 1 Cal.4th 266, 271-276; People v.
Williams (1997) 16 Cal.4th 635, 652 [where defendant failed to seek review via
writ of mandate, his “statutory disqualification claim is not properly before us on
this automatic appeal following a judgment of death”]; People v. Superior Court
(Jimenez) (2002) 28 Cal.4th 798, 802; People v. Coffman and Marlow (2004) 34
Cal.4th 1, 50-51.)
Here, defendant filed a writ petition in the Court of Appeal seeking review
of the denial of the disqualification motion, which the Court of Appeal summarily
denied. Defendant thus received the appellate review of his statutory claim to
which he was entitled. Defendant suggests that Code of Civil Procedure section
170, subdivision (d) does not provide his exclusive appellate remedy but is merely
a procedural step that must be followed before he can raise the disqualification
issue on appeal. Not surprisingly, he cites no authority for this construction of the
statute and our cases are clearly to the contrary.16
16
We have observed that, notwithstanding the exclusive-remedy provision of
Code of Civil Procedure section 170.3, “a defendant may assert on appeal a claim
of denial of the due process right to an impartial judge.” (People v. Mayfield
(1997) 14 Cal.4th 668, 811.) Although defendant alluded to the due process
clause in his motion below and on appeal here, his argument here is focused on
whether the trial court complied with the statute and he makes no separate due
process argument. Even if we construed his argument to encompass a due process
claim, however, we would reject it for the same reasons we find his argument
substantively unavailing.
52
Defendant’s claim is also substantively without merit. Defense counsel’s
declaration in support of the disqualification motion made it clear that he was not
asserting that the trial court was personally biased against him but, rather, that an
institutional bias against him pervaded the Van Nuys courthouse because of the
“unusual relationship between the Van Nuys court system and the family of the
deceased in this case.” The basis of this allegation was that the victim’s mother,
Lori Parker, a paralegal or legal secretary, and her fiancé, Martin Gladstein, a
criminal defense lawyer, were known to court personnel at the Van Nuys
courthouse and had personal relationships with some of them, and that Gladstein
had recently tried a case before Judge Kriegler, to whom defendant’s case was
assigned, and had access to areas of the courthouse restricted to the general public.
The declaration also referred to four specific incidents to support the claim
of institutional bias: (1) defense counsel had personally observed Mrs. Parker and
two of her friends hold a “private conference” with Judge Ronald S. Coen in his
courtroom, which was adjacent to Judge Kriegler’s courtroom; (2) a lawyer named
Larry Baker, who was a friend of both Gladstein’s and Parker’s, approached
defense counsel outside of Judge Kriegler’s courtroom and said “words to the
effect of ‘No offense, Bob, but I hope your guy dies’ ”; (3) graffiti had been
carved on a wood railing outside Judge Kriegler’s courtroom that read “anal sex
kid must die”; and (4) a bailiff involved in transporting prisoners to Judge
Kriegler’s courtroom had told defendant, “Why don’t you just kill yourself and
save everybody time and money.” The declaration noted that when defense
counsel brought this information to Judge Kriegler, the bailiff was relieved of any
duties with respect to defendant.
The declaration concluded that the perception of institutional bias, “local
publicity,” the “unusual relationship to the court system of the family of the
53
deceased” and the “venom of court personnel and members of the legal
community” created “an appearance of bias or prejudice.”
As early as September 24, 1994, defense counsel informed Judge Kriegler
that he was contemplating bringing the motion and Judge Kriegler urged him to
file it. On October 14, defense counsel again stated he would be “filing a motion
in the nature of a 170.1 challenging this entire building.” On November 14, when
the defense again raised the issue of filing the disqualification motion, the trial
court pointed out that the statute required the motion be filed “at the earliest
possible opportunity.” The motion was not filed until November 16.
Upon receipt of the motion, Judge Kriegler filed a verified answer denying
any bias or impartiality and stating that the motion was untimely. At the hearing
of the motion, Judge Kriegler declined to refer the motion to another judge
pursuant to Code of Civil Procedure section 170.3, subdivision (c)(5) but, instead,
struck the motion on grounds it was untimely and without a legal basis. (Code
Civ. Proc., § 170.4, subd. (b).)17 Judge Kriegler’s ruling was correct.
“ ‘The standard for disqualification provided for in subdivision (a)(6)(C) of
section 170.1 is fundamentally an objective one.’ If a reasonable member of the
public at large, aware of all the facts, would fairly entertain doubts concerning the
judge’s impartiality, disqualification is mandated. The existence of actual bias is
17
Code of Civil Procedure section 170.3, subdivision (c)(5) states in pertinent
part: “No judge who refuses to recuse himself or herself shall pass upon his or her
own disqualification or upon the sufficiency in law, fact, or otherwise, of the
statement of disqualification filed by a party. In every such case, the question of
disqualification shall be heard and determined by another judge . . . .” Code of
Civil Procedure section 170.4, subdivision (b) states: “Notwithstanding paragraph
(5) of subdivision (c) of Section 170.3, if a statement of disqualification is
untimely filed or if on its face it discloses no legal grounds for disqualification, the
trial judge against whom it was filed may order it stricken.”
54
not required.” (Flier v. Superior Court (1994) 23 Cal.App.4th 165, 170, fn.
omitted, quoting United Farm Workers of America v. Superior Court (1985) 170
Cal.App.3d 97, 104; People v. Brown (1993) 6 Cal.4th 322, 336-337.) “The
challenge must be to the effect that the judge would not be able to be impartial
toward a particular party.” (Flier, supra, at p. 171.)
Defendant asserts that an institutional bias on the part of other judges or
courthouse personnel is sufficient to disqualify a judge as to whose impartiality no
question exists. We are far from persuaded the allegations in defense counsel’s
declaration demonstrated a pervasive institutional bias against defendant but, in
any event, nothing in the disqualification statute supports his argument. His
motion really appears to have been simply an attempt to relitigate his unsuccessful
motion for change of venue.
The motion was also untimely. While certain specific events may not have
been known to defense counsel until shortly before he filed the motion in
November, specific facts to support his underlying argument of institutional bias
were known to him as early as September. Thus, his failure to file the motion until
the very eve of trial rendered it untimely under the statute. (Code Civ. Proc.,
§ 170.4, subd. (b); Urias v. Harris Farms, Inc. (1991) 234 Cal.App.3d 415, 424
[“The matter of disqualification should be raised when the facts constituting the
grounds for disqualification are first discovered . . .”].)
55
F. Denial of Venue Motion
Defendant contends the trial court erred when it denied his motions to
change venue or transfer his case to another judicial district within Los Angeles
County due to prejudicial pretrial publicity and courthouse bias.18 We disagree.
“A change of venue must be granted when the defendant shows a
reasonable likelihood that in the absence of such relief, a fair trial cannot be had.
‘Whether raised on petition for writ of mandate or on appeal from a judgment of
conviction, “the reviewing court must independently examine the record and
determine de novo whether a fair trial is or was obtainable.” ’ [Citation.] ‘The de
novo standard of review applies to our consideration of the five relevant factors:
(1) nature and gravity of the offense; (2) nature and extent of the media coverage;
(3) size of the community; (4) community status of the defendant; and
(5) prominence of the victim.’ [Citation.]” (People v. Welch, supra, 20 Cal.4th at
p. 744, quoting People v. Sully (1991) 53 Cal.3d 1195, 1236-1237.)
Defendant brought three motions to change venue or transfer. Each was
denied.
We perceive no error. Only the first factor weighs in favor of granting the
motion, but the nature and the gravity of the offense, standing alone, is not
dispositive. (People v. Weaver, supra, 26 Cal.4th at p. 905.) Nor, contrary to
defendant’s claim, does the second factor weigh in favor of the motion because we
conclude the publicity was neither extensive nor prejudicial.
18
The same standard and considerations for determining whether to grant a
motion to change venue apply in ruling on a motion to transfer and, therefore, we
do not analyze that motion separately. (People v. Jenkins (2000) 22 Cal.4th 900,
945; People v. Cummings (1993) 4 Cal.4th 1233, 1276, fn.17.)
56
In his pretrial motion, defendant cited 18 newspaper articles about his case
that had appeared between November 22, 1993 and June 9, 1994.19 Except for a
letter to the editor, all the articles were news stories. Five reported the
circumstances of defendant’s arrest and the victim’s death and two reported her
funeral. The remaining articles reported developments in the case as it moved
through the legal system. Defendant’s trial did not commence until November
1994, more than a year after most of the articles had appeared, and about six
months after publication of the last one. Any potential prejudice from the media
coverage was attenuated by the passage of time. (People v. Welch, supra, 20
Cal.4th at p. 744.) Moreover, 18 articles over a 12-month period can hardly be
characterized as “extensive” (cf. People v. Cummings, supra, 4 Cal.4th at p. 1275
[51 newspaper stories and 24 television stories in an 11-month period], nor,
contrary to defendant’s claim, was the coverage biased or inflammatory simply
because it recounted the inherently disturbing circumstances of this case and the
victim’s family’s grief at her murder.
Moreover, the fact that prospective jurors may have been exposed to
pretrial publicity about the case does not necessarily require a change of venue.
(People v. Proctor (1992) 4 Cal.4th 499, 527.) “ ‘It is sufficient if the juror can
lay aside his impression or opinion and render a verdict based on the evidence
presented in court.’ ” (People v. Daniels (1991) 52 Cal.3d 815, 853, quoting
People v. Chadd (1981) 28 Cal.3d 739, 750.) Here, all of the jurors and alternate
jurors who had any knowledge of the case stated they could set aside this
knowledge and decide the case on the law and evidence received at trial. In this
connection, it should be observed that defendant failed to use all his peremptory
19
Defendant’s renewed motions also referenced the pretrial publicity.
57
challenges when he accepted the jury, thus indicating that “the jurors were fair and
that the defense itself so concluded.” (People v. Balderas (1985) 41 Cal.3d 144,
180; People v. Coffman and Marlow, supra, 34 Cal.4th at p. 46.)
Defendant also cites three newspapers articles that appeared during his trial
that were the basis of renewed motions for change of venue on December 5 and
December 7, 1993. His December 5 motion was based on a newspaper article that
had appeared four days earlier, while jury selection was still in process, titled
Child-Murder Case Inflames Emotions. The trial court included questions about
this article and determined that the prospective jurors had not been exposed to it.
Defendant’s December 7 motion was brought after two newspaper articles
implicated defendant in a plot to kill prosecution witnesses. The trial court
questioned the jurors about the article and again determined that none of them had
been exposed to it. Under these circumstances, the trial court properly denied
defendant’s renewed motions.20
None of the remaining relevant factors support a change of venue in this
case. As to community size, the San Fernando Valley, from which the jury pool
was drawn, contains over a million inhabitants and is far more populous than
many counties. Therefore, the size of the community does not support a change in
venue. (People v. Staten (2000) 24 Cal.4th 434, 449.) Defendant asserts that the
victim and her family occupied positions of prominence and popularity, but the
victim became known only because she was a murder victim, not because of any
20
Defendant contends there were over 60 newspaper articles related to his
case, but he includes numerous articles that appeared during his trial, some of
them duplicates. These stories, obviously, were not before the court when it ruled
on his motions to change venue or transfer and we do not consider them for
purposes of our analysis.
58
preexisting status. (See People v. Daniels, supra, 52 Cal.3d at p. 852.) Defendant
also points out that the victim’s mother was a legal secretary and her fiancé was a
criminal defense lawyer who were known in the Van Nuys legal community, but
nothing in the record suggests these factors had any effect on the jury pool.
(People v. Weaver, supra, 26 Cal.4th at p. 906.) Finally, despite defendant’s
attempt to depict himself as an outsider because of his recent immigrant status, and
the victim of ethnic bias because of his Iranian origin, “there was no evidence of
unusual local hostility to such persons, such that a change of venue would likely
produce a less biased panel. Nor was the pretrial publicity calculated to excite
local prejudices in this regard.” (People v. Balderas, supra, 41 Cal.3d at p. 179;
cf. People v. Williams (1989) 48 Cal.3d 1112, 1129 [pretrial publicity focused on
defendant’s race and his status as an outsider to the community in contrast to
victim’s ties to the community].)
To the extent, moreover, that defendant asserts some racial or ethnic animus
was at work among the jurors, his claim is belied by his failure to have exercised
all his peremptory challenges. “In the absence of some explanation for counsel’s
failure to utilize his remaining peremptory challenges, or any objection to the jury
as finally composed, we conclude that counsel’s inaction signifies his recognition
that the jury as selected was fair and impartial.” (People v. Daniels, supra, 52
Cal.3d at p. 854.)
We therefore conclude that the trial court did not err in denying defendant’s
motions for change of venue or transfer.
G. Claims of Judicial and Other Bias and Inflammatory Publicity
1. Bias Rendering the Proceedings Unfair
Defendant claims that bias pervaded the proceedings, rendering them
unfair. He again cites the incidents that supported his venue and disqualification
59
motions. Not only have we already concluded that none of these incidents
justified either disqualification of the trial court or a change of venue, but
defendant also fails to show that any juror or prospective juror witnessed or was
aware of any of these incidents. Therefore, we reject his assertion that these
events had any impact on his trial.
Next, defendant asserts the trial court’s response to his allegation of
mistreatment by jail staff evinced bias against his religious beliefs. Defendant
claimed that, during the trial, jail staff entered his cell without his consent and
defaced his copy of the Koran and his trial notes. When defense counsel brought
this allegation to the trial court’s attention, the court agreed to have its bailiff
investigate and urged defendant to file a formal complaint with the sheriff. The
trial court noted, in passing, that it had had the bailiff look into previous
complaints made by defendant and determined they were unfounded but,
nonetheless would “have my deputy check into” defendant’s fresh complaints
Defendant contends the trial court’s response was inadequate or indicative
of judicial bias against him, but the trial court’s actions were reasonable and
responsive to his request.
Defendant also asserts the trial court and prosecutor ridiculed his religion.
This assertion is without merit. After the discussion of defendant’s mistreatment
in the jail, the prosecutor pointed out that, earlier in the trial, defense counsel
expressed concern that jurors might be prejudiced against defendant because he is
Muslim. He noted that the trial court had permitted defendant to bring a Koran
into the court but in a place where the jurors could not see it. He observed,
however, that “I think it’s important to note for the record the Koran, when this
case started, was about by three inches in size, and now he’s bringing one the size
of a telephone book each day when he comes into court. [¶] I think it is important
for the issue of bias and prejudice, that counsel has brought up on this record over
60
and over, that this is a situation that is being created at this point by the defendant
by bringing this book in.” The court noted that defendant was also kissing the
Koran while witnesses were testifying against him. “I told him I thought he
should sit there and quietly [sic] not make any overt movements during the trial
that might be interpreted one way or the other by the jury. [¶] The defendant
instead is flaunting the Koran in front of the jury and has been seen by me to be
kissing the Koran at various times during the trial. [¶] So that is of record. It
doesn’t require any further response. There’s no issue to be litigated on this.”
The jury was not present during this exchange and defendant made no
objection to either the prosecutor’s remarks or the court’s response. He now
argues that the trial court “stif[led] his use of a spiritual guide during the
proceedings.” The trial court, however, despite its concern that defendant’s use of
the Koran might be a distraction, apparently neither prevented him from
continuing to bring the book into the courtroom nor otherwise interfered with his
religious practice.
Defendant next complains about an incident in which the victim’s mother
kissed the trial judge’s bailiff. The record shows that the bailiff was not a willing
participant but attempted to move away from the victim’s mother. It was also
unclear whether any juror witnessed the incident.
Furthermore, the prosecutor admonished the victim’s mother to have no
further contact with anyone related to the case.
Defendant rejected the trial court’s offer to replace the bailiff and moved
for a mistrial. The trial court denied the motion but suggested polling the jurors to
determine whether they saw the incident. Defense counsel responded by
requesting that the penalty phase be moved to another courthouse. The trial court
denied the request. Defense counsel then requested that the court instruct the jury
that any interaction between the victim’s mother and the bailiff was improper and
61
to disregard it. The trial court replied, “She’s not on trial. I’m not going to do that.
[¶] I would be happy to tell them if they saw any interaction, obviously that
should play no role whatever in their determination of what happened in the case.”
Defense counsel rejected the trial court’s proposal and declined to make any
“further requests.”
“Misconduct on the part of a spectator is a ground for mistrial if the
misconduct is of such a character as to prejudice the defendant or influence the
verdict. [Citation.] A trial court is afforded broad discretion in determining
whether the conduct of a spectator is prejudicial.” (People v. Lucero (1988) 44
Cal.3d 1006, 1022.) The incident appears to have been brief and it was not clear
that any juror even witnessed it. We conclude that the trial court did not abuse its
discretion in denying defendant’s mistrial motion. In the absence of any
indication on the record that any juror actually observed the incident, we reject
defendant’s further claim that the trial court erred by failing to admonish the jury
to disregard the incident.
Defendant next claims that the trial court was biased against his family and
supporters as evidenced by three incidents involving his mother, and a fourth
incident involving some of his supporters.
During the discussion of the kissing incident between the victim’s mother
and the bailiff, the trial court noted that the defendant’s mother was sitting in the
court “crying almost uncontrollably right now while my bailiff is trying to console
her.” As the hearing progressed, defendant’s mother became more and more
voluble until, according to the court, she was “out of control.” It ordered her
removed from the courtroom. No juror was present when this occurred.
Defendant argues the court’s removal of his mother indicated its bias
against her. We disagree. “Trial courts possess broad power to control their
courtroom and maintain order and security.” (People v. Woodward (1992) 4
62
Cal.4th 376, 385; Code Civ. Proc., § 128, subd. (a)(1)-(5).) The trial court’s
removal of defendant’s mother was a reasonable exercise of this power.
The second incident involving defendant’s mother occurred when the trial
court was informed that she had been seen in the vicinity of the parking structure
reserved for court employees. In a closed session, the trial court briefly asked her
whether she had been parking there and was satisfied by her explanation that,
because it was rainy and wet, she had been dropped off at the parking structure.
Defendant asserts this was evidence the trial court was biased against his mother
and his supporters. We disagree. The trial court’s concern that a witness was
parking in an area reserved for court employees was reasonable, its inquiry was
brief, and it was satisfied with the explanation given.
Defendant also asserts that the trial court showed its bias against his mother
because it refused to order television cameras to be turned off during her
testimony as requested by defendant. However, at the in camera proceeding to
which he directs us, defendant did not make this request. He asked for special
transportation for himself to the court because he had been spat at and taunted by
other prisoners on the bus ride from the jail to the court. In passing he mentioned
that some of them had said they had seen his mother on television and “they’re
going to have somebody from their friends do something to her.” At no point did
he request the cameras be turned off during her testimony.
Lastly, defendant claims the trial court evinced bias against his supporters
because it conducted a hearing during which the bailiff charged with guarding the
jury during its deliberations informed the judge that three men, apparently
supporters of defendant, appeared to have been following or “shadowing” the jury.
Out of the presence of the jury, the bailiff told the court he asked the men for
identification and ran a warrant check; one of the men had three outstanding
warrants. The court held him until he could be taken into custody. The court
63
briefly addressed the other two men, and admonished them not to follow the jury.
Defense counsel objected to “the disparate treatment of our witnesses” and said he
had observed the victim’s mother in the cafeteria while the jury was also there.
The trial court replied, “The jury is deliberating, and I want to make sure the jury
does its best to reach a verdict without the kind of outside influences you are
concerned about.” As to the presence of the victim’s mother in the cafeteria, the
court pointed out that there was no report that she had followed the jurors.
On this record, it is clear that the trial court’s action, in response to the
bailiff’s allegation, was intended to prevent any impairment of or interference with
the jury’s deliberation. We therefore reject defendant’s claim of judicial bias.
We further reject defendant’s more global claim that not only judicial bias,
but courthouse personnel bias and “community” bias so “created an emotional
atmosphere” that the jury was unable to reach a fair verdict. Every incident cited
by defendant either clearly or apparently occurred outside the presence of the jury
and could have had no impact on its deliberations or its verdict.
2. Denials of Mistrial Motions for Inflammatory Publicity
Defendant contends the trial court abused its discretion and violated his
constitutional rights when it denied mistrial motions based on claims of
inflammatory publicity.
“As we have previously explained, a mistrial should be granted ‘only when
“ ‘a party’s chances of receiving a fair trial have been irreparably damaged.’ ” ’
[Citation.] We review the trial court’s ruling for abuse of discretion and find no
such abuse here.” (People v. Burgener (2003) 29 Cal.4th 833, 873, quoting
People v. Ayala, supra, 23 Cal.4th at p. 282.)
The first incident involved a newspaper article that alleged prosecutors had
reported that defendant was involved in a plot to kill a prosecution witness, Rauni
64
Campbell. When the article was brought to the trial court’s attention, the trial
court inquired of the jurors whether they had had any exposure to articles or
television reports about the case. None had. At the end of its inquiry, the court,
which had previously ordered the jurors not to read newspapers, watch any
television reports, or listen to any radio reports about the case, directed them not to
read the newspaper at all, except for the sports and classified sections. Defendant
engages in the unsupported assertion that the trial court’s admonition was either
inadequate or ineffective, but we presume the jury followed the court’s
instructions. (People v. Harris (1994) 9 Cal.4th 407, 426.)
Defendant’s second mistrial motion was made on January 9, 1995, after
defense counsel learned that the victim’s mother had given a television interview
in which, according to defense counsel, she demanded the death penalty for
defendant. The trial court reminded counsel he had admonished the jury not to
watch television reports of the case and offered to poll them. Sometime later in
the proceedings, the trial court returned to the subject. The trial court said it
would order the Parker family not to discuss the case with anyone, including the
press, during the remainder of trial. Regarding the television report, the court
stated it was hopeful that the jurors had been abiding by its admonition not to
watch television. Defense counsel characterized this as “wishful thinking” and
moved for a mistrial. The trial court admonished the victim’s family but did not
rule on the motion, nor did defendant press for a ruling.
Again, we presume that the jury followed the trial court’s admonition to
avoid any publicity about the case. Accordingly, even assuming defendant has not
forfeited this claim by failing to press for a ruling, we would find no abuse of
discretion in the denial of the motion.
65
H. Prosecutorial Misconduct Claims
1. Use of an Informant
Defendant complains that the prosecution interfered with his attorney-client
relationship because it used a jailhouse informant to investigate allegations that he
was conspiring to kill a prosecution witness. The claim is without merit.
During a pretrial conference, an issue arose regarding the prosecutor’s
attempts to subpoena videotapes from three Iranian television stations that had
broadcast stories in which defendant made statements about the case in phone calls
to his mother, which were then aired. One of the stations had failed to comply
with the subpoena and there was some discussion about how to enforce it.
Defense counsel interjected, accusing the prosecution of “overreaching, [and]
overzealous enforcement.” In the course of his remarks, he claimed that the
prosecutor had ordered defendant “transferred to various cells in the county jail so
he can gather evidence.” He asked that the subpoenas to the television stations not
be enforced.
The trial court rejected his request, pointing out that he had no standing
regarding the subpoenas because they were directed at third parties. Defense
counsel cited Barber v. Municipal Court (1979) 24 Cal.3d 742 for the proposition
that when “the prosecution infiltrates the defense camp, the prosecution runs afoul
of the Sixth Amendment, and Mr. Panah does have standing to complain about
Sixth Amendment violations, and I would submit it.”
The trial denied the motion to quash, observing there was not “even a hint
that this has anything to do with the attorney-client relationship or privilege.”
Then, while recognizing “there’s no motion before the court,” it invited the
prosecutor to respond to defense counsel’s other allegations.
The prosecutor replied that his office had received information that
defendant was involved in a conspiracy to murder two prosecution witnesses and
66
had conducted an investigation that involved obtaining court orders to tape
conversations between defendant and an informant. He pointed out that the
defense had been fully informed of the investigation, which had not resulted in a
filing against defendant. He invited the defense to file whatever motions it
deemed appropriate with respect to the investigation.
Defense counsel responded, “When the day is appropriate, we will notice
any appropriate motion and we will litigate it with appropriate testimony, Your
Honor.” There was no further discussion of the point.
Thus, defendant never made a motion on Sixth Amendment grounds to
suppress any evidence obtained by the prosecutor’s use of an informant to
investigate the alleged conspiracy to kill witnesses. Indeed, no charges were ever
filed against defendant arising out of the investigation nor was any of the evidence
gathered during the information used against him at trial. Moreover, defendant
cites nothing in the record that controverts the prosecutor’s statements either that
the investigation was conducted lawfully or that all information regarding it was
turned over to the defense. In fact, during the course of defendant’s November 21
Marsden motion, defense counsel acknowledged having received and reviewed
transcripts from the taped conversations between defendant and the informant.
We therefore conclude that defendant forfeited any Sixth Amendment claim based
on the prosecution’s use of the informant and, in any event, has failed to show any
violation of his Sixth Amendment right or that he suffered any conceivable
prejudice. (See United States v. Morrison (1981) 449 U.S. 361, 365, 366; People
v. Jenkins, supra, 22 Cal.4th at pp. 1006-1008.)
Defendant contends that the prosecutor used conversations between him
and the informant to prevent defendant from gaining access to Rauni Campbell,
one of the alleged targets of the conspiracy to kill witnesses. As noted below, the
prosecution made Campbell available to the defense, but she declined to be
67
interviewed by the defense. Defendant cites nothing in the record to support his
claim that Campbell’s unwillingess to speak to the defense investigator was
related to defendant’s conversations with the informant.
2. Denial of Access to Prosecution Witness
Defendant contends the prosecution violated his Sixth Amendment and
other constitutional rights by denying him access to a prosecution witness, Rauni
Campbell. Specifically, he argues that the trial court erred when it refused to order
Campbell to be brought before the court for a Franks hearing (Franks v.
Delaware, supra, 438 U.S. 154); that the prosecutor prevented him from
interviewing the witness before she testified; and that the trial court abused its
discretion by withholding her out-of-state address from the defense out of concern
for her safety. (§ 1054.7.)
Under Franks v. Delaware, supra, 438 U.S. 154, a defendant has a limited
right to challenge the veracity of statements contained in an affidavit of probable
cause made in support of the issuance of a search warrant. When presented with
such a challenge, the lower court must conduct an evidentiary hearing if a
defendant makes a substantial showing that: (1) the affidavit contains statements
that are deliberately false or were made in reckless disregard of the truth; and,
(2) the affidavit’s remaining contents, after the false statements are excised, are
insufficient to support a finding of probable cause. The defendant must establish
the statements are false or reckless by a preponderance of the evidence. (Id. at pp.
155-156; People v. Bradford, supra, 15 Cal.4th at p. 1297.) Innocent or negligent
misrepresentations will not defeat a warrant. (Franks, supra, 438 U.S. at pp. 154-
155.) Moreover, “ ‘there is a presumption of validity with respect to the affidavit.
To merit an evidentiary hearing[,] the defendant[’s] attack on the affidavit must be
more than conclusory and must be supported by more than a mere desire to cross-
68
examine. . . . The motion for an evidentiary hearing must be “accompanied by an
offer of proof . . . [and] should be accompanied by a statement of supporting
reasons. Affidavits or otherwise reliable statements of witnesses should be
furnished,” or an explanation of their absence given.’ ” (People v. Benjamin
(1999) 77 Cal.App.4th 264, 272, quoting People v. Sandlin (1991) 230 Cal.App.3d
1310, 1316.) Finally, “[a] defendant who challenges a search warrant based upon
an affidavit containing omissions bears the burden of showing that the omissions
were material to the determination of probable cause.” (People v. Bradford,
supra, 15 Cal.4th at p. 1297.)
During the suppression hearing, defense counsel asked that Ms. Campbell
be ordered to testify regarding two statements made by Officer Kong in the
affidavit supporting the search warrant for defendant’s residence. Kong stated that
as he approached the courtyard in Campbell’s apartment complex, defendant “fled
through the courtyard apartment.” Defense counsel maintained that Campbell
would testify defendant did not “flee” but “left the apartment in the normal
fashion.” Kong was also quoted as saying Campbell told him defendant had told
her “he had done something very bad.” Defense counsel claimed that what
Campbell actually told Kong was that defendant said “they had done something
very bad.” The trial court found that defendant failed to meet the foundational
requirements set forth in Franks and denied the motion.
We review denial of a Franks hearing de novo. (People v. Benjamin,
supra, 77 Cal.App.4th at p. 271.) We conclude the trial court acted properly.
Defense counsel’s motion was unaccompanied by any of the evidentiary material
69
required of the moving party.21 At most, he provided no more than “conclusory
contradictions” of the affiant’s statements “insufficient for the ‘substantial
preliminary showing’ ” required by Franks. (Benjamin, supra, 77 Cal.App.4th at
p. 272.) He also failed to demonstrate that, even if the statements were inaccurate,
they were material to the determination of probable cause. (People v. Bradford,
supra, 15 Cal.4th at p. 1297.)
Defendant claims that the prosecution also denied him access to Campbell
prior to her trial testimony. In this connection, he challenges the trial court’s order
withholding her address from defendant because of concern that he had conspired
to threaten her safety. His claims are without merit.
At some point, apparently early in the case, there was an in camera
proceeding at which the trial court granted the prosecution’s request that Ms.
Campbell’s out-of-state address not be disclosed to defendant based on allegations
that he had conspired with others to kill her and another witness. While defendant
complained about his lack of access to Campbell in connection with his Franks
motion, he made no attempt to compel disclosure of her address.
On November 21, 1994, the prosecutor agreed to make Campbell available
to the defense by phone. Two days later the prosecutor represented that Campbell
had declined to speak to the defense. The defense made no response to the
prosecutor’s representation nor did it seek disclosure of her address or telephone
number.
21
Defendant argues that defense counsel’s brief reference to Campbell’s
grand jury testimony supplies the required evidentiary showing; he is wrong. On
the other hand, if Campbell’s grand jury testimony contradicted statements made
by Kong in the affidavit, and Kong was available for questioning, defendant fails
to explain why he did not call Kong and impeach him with Campbell’s grand jury
testimony.
70
On December 5, the prosecutor informed the trial court that Ms. Campbell
would testify the next day. The prosecutor agreed to make her available to the
defense. The following day, the prosecutor reported that he had introduced the
defense investigator to Ms. Campbell and she had declined to speak to him. When
defense counsel complained that he had been deprived of the ability to interview
her, the trial court observed, “[j]ust to be clear, the prosecutor several times has
indicated that Miss Campbell does not want to talk to the defense. And she
apparently delivered that message herself to the defense investigator today.”
The defense then requested her current address in order to gather
information about her reputation in her current community. The prosecutor
reminded the court that Campbell had been relocated to protect her based on
information that defendant had been involved in a plan to jeopardize her life. He
also noted that he was unaware of any efforts by the defense to have investigated
Campbell’s reputation in the community at the time of the offense. The trial court
observed that information about Campbell’s reputation in her new community, in
which she had lived for only a brief time, was of minimal relevance, if any. It also
observed that because she had been defendant’s girlfriend, the defense had at its
disposal some knowledge about her with which to investigate her reputation.
Finally, it cited concerns about her security and denied the request for further
discovery of her address.
A defendant has a “right to the names and addresses of prosecution
witnesses and a right to have an opportunity to interview those witness if they are
willing to be interviewed.” (Reid v. Superior Court (1997) 55 Cal.App.4th 1326,
1332, italics added.) A defendant does not have a fundamental due process right
to pretrial interviews or depositions of prosecution witnesses. (People v.
Municipal Court (Runyan) (1978) 20 Cal.3d 523, 530-531.) Discovery of a
prosecution witness’s address, moreover, may be limited out of concern for the
71
witness’s safety. (§ 1054.7; In re Littlefield (1993) 5 Cal.4th 122, 136.) Orders
under this section are subject to review for abuse of discretion. (See Alvarado v.
Superior Court (2000) 23 Cal.4th 1121, 1135-1136.)
Here, the prosecution provided defendant access to the witness but she
refused to speak to the defense. Her refusal does not constitute prosecutorial
misconduct. Defendant also challenges the trial court’s denial of his motion to
disclose the witness’s address. On the record before us, where there appears to
have been a credible allegation of potential injury to the witness, we find no abuse
of discretion. In any event, since he failed to make this request until the day
before Campbell testified, we fail to see how he could have been prejudiced by the
denial of his motion. Accordingly, we reject defendant’s claim that his statutory
discovery rights, his right to counsel, or any other constitutional right were
violated.
3. Failure to Provide Coroner’s Report
Defendant contends the prosecutor committed misconduct by withholding a
vital coroner’s report, thereby violating the discovery statute (§ 1054.1) and his
constitutional rights. The record discloses, however, that the report was prepared
during the trial and provided to defendant at the earliest possible opportunity.
On the morning of Monday, December 12, 1994, just prior to the testimony
of medical examiner Eva Heuser, the prosecution provided the defense a report
from Dr. Heuser, prepared on the preceding Friday, December 9, entitled
“Microscopic Report.” The report contained Dr. Heuser’s analysis of slides of
tissue taken from the victim’s vaginal and anal walls as well as perineal tissue.
The analysis showed evidence of trauma and supported Dr. Heuser’s conclusion
that the injuries occurred while the victim was still alive. The prosecutor
explained that on the previous Friday, in preparation for Dr. Heuser’s testimony,
72
he had her pull the slides and take a look at them in light of specific questions he
had for her, and prepare a report. The prosecutor stated the report was
“confirmatory of the testimony” Dr. Heuser had previously given, presumably
before the grand jury. Dr. Heuser later testified she had intended to prepare such a
report when she had first examined the slides but had forgotten to do so.
The defense requested a continuance of an unspecified amount of time.
The trial court denied the request, noting the defense had had access to the original
coroner’s report, to Dr. Heuser’s grand jury testimony, and “the defense could
have simply have called Dr. Heuser with any questions.” Later that day, in
connection with a mistrial motion based on defense counsel’s allegation his cross-
examination had been unfairly limited, counsel returned to the report. He asserted
that Dr. Heuser’s conclusion that the injuries occurred premortem was new
material and asked either that the defense be granted a continuance or that the
report be excluded.
The trial court denied defendant’s motions. It reiterated its finding that the
prosecution had timely disclosed the report. It also observed that, despite the
court’s urgings, the defense had not yet called in its expert to examine the report.
Section 1054.1, subdivision (f) requires the prosecutor to disclose to the
defense “[r]elevant written or recorded statements of witnesses or reports of the
statements of witnesses whom the prosecutor intends to call at the trial, including
any reports or statements of experts made in conjunction with the case, including
the results of . . . scientific tests, experiments, or comparisons which the
prosecutor intends to offer in evidence.” Such disclosure must be made at least 30
days before trial, but “[i]f the material and information becomes known to, or
comes into the possession of, a party within 30 days of trial, disclosure shall be
made immediately . . . .” (§ 1054.7.)
73
Here, the trial court found Dr. Heuser’s report was a new report and that
disclosure was timely under the statute. Although defendant concedes “it could be
argued the report was turned over within a reasonable time after it was prepared,”
he asserts that the prosecutor intentionally delayed having Dr. Heuser prepare the
report to avoid discovery. Nothing in the record supports this imputation of
misconduct to the prosecution. It is settled, moreover, that the prosecution “has no
general duty to seek out, obtain, and disclose all evidence that might be beneficial
to the defense.” (In re Littlefield, supra, 5 Cal.4th at p. 135.) Therefore, the
prosecution did not commit misconduct simply because it failed to ask Dr. Heuser
to prepare the report sooner.
Moreover, there was apparently no information in the report to which
defendant did not already have access. He argues that “regardless of the content
of the report” he was prejudiced because the prosecutor’s “unexpected
presentation of it to the defense hampered his ability to adequately prepare for his
examination of the coroner.” But defendant’s failure to adequately prepare for
cross-examination cannot be attributed to the belated production of a report
containing information already in his possession.
We conclude that disclosure of the report was timely. Necessarily, then, we
reject the edifice of constitutional error that defendant constructs upon his claim of
discovery violation.
Defendant alternatively contends the trial court abused its discretion by
denying his request for a continuance of unspecified length. Under the
circumstances, we find no abuse of the trial court’s discretion in its denial of the
continuance request and, in any event, no prejudice. (People v. Samayoa, supra,
15 Cal.4th at p. 840.)
74
4. Intimidation of a Defense Witness
Defendant contends the prosecutor committed misconduct by intimidating a
defense witness, Victoria Eckstone. His argues this misconduct violated his Sixth
Amendment right to compulsory process, among other constitutional rights.
“ ‘Governmental interference violative of a defendant’s compulsory-
process right includes, of course, the intimidation of defense witnesses by the
prosecution. [Citations.] [¶] The forms that such prosecutorial misconduct may
take are many and varied. They include, for example, statements to defense
witnesses to the effect that they would be prosecuted for any crimes they reveal or
commit in the course of their testimony. [Citations.]’ ” (People v. Hill (1998) 17
Cal.4th 800, 835.)
Ms. Eckstone testified that she believed defendant was the father of her
child, had spent time with the child, and loved her. On recross-examination, she
was confronted by the prosecutor with her statement to a detective that she would
not allow defendant near her child. Therefore, on redirect, she testified that,
during the investigation of this case, the prosecutor called her several times and,
when she finally returned his call, threatened to arrest her unless she spoke to him.
She testified further, “I told them pretty much anything they wanted to hear as
long as I wasn’t going to get arrested.”
On further recross-examination, she acknowledged that what she was
actually told by someone in the prosecutor’s office was, “ ‘I guess we’re going to
have to come out and get you,’ ” which she considered “a threat for an arrest.”
She testified further that she had not intentionally lied to the prosecutor.
In a bench conference after her testimony, the trial court disclosed it had
received a note from the bailiff that said sheriff’s deputies in the courtroom
believed Eckstone might be under the influence of a controlled substance. The
court said she could either be arrested or examined by a drug recognition expert or
75
simply kept on call. The prosecutor asked she be examined because “if she’s
under the influence of a substance, I think the jury needs to know that.” The court
agreed, “her demeanor and behavior was highly unusual, to say the least.” Over
defense counsel’s objection, the trial court ordered the examination in another part
of the courthouse and outside the presence of the jury. Subsequently, the trial
court reported on the record that the examination had taken place, and there was
“some indication of substance usage” but not enough to make an arrest.
We find no supportable claim of prosecutorial intimidation. The record
makes clear that the alleged threat of arrest was simply a matter of interpretation
on Eckstone’s part. Moreover, even if the prosecutor had overreached during the
investigatory part of this case, he did not interfere with defendant’s Sixth
Amendment compulsory process rights because Eckstone appeared and testified
on defendant’s behalf, not only in the guilt phase, but in the penalty phase. Thus,
this case is easily distinguishable from the cases defendant relies upon in support
of his argument, in which prosecutorial threats to charge a defense witness with
perjury (People v. Hill, supra, 17 Cal.4th at p. 835; People v. Bryant (1984) 157
Cal.App.3d 582, 590), or apprising a defense witness of his privilege against self-
incrimination in an intimidating fashion (People v. Warren (1984) 161 Cal.App.3d
961, 973-974), deprived the defendant of the testimony of that witness. Defendant
suggests that the threat of arrest may have subtly influenced Eckstone’s demeanor.
This is mere speculation.
We also reject his claim that prosecutorial misconduct was involved in
Eckstone’s detention for possible drug use. The request came not from the
prosecutor or the court, but from police present in the courtroom. The extent of
the prosecutor’s participation was his legitimate observation that whether a
witness is testifying under the influence of drugs is relevant to credibility. (People
v. Viniegra (1982) 130 Cal.App.3d 577, 581 [“It is well established that a witness
76
may be questioned as to whether he or she has recently used, or is under the
influence of, drugs”].) Additionally, the detention did not prevent Eckstone from
returning to testify for defendant at the penalty phase. There was no misconduct
and no constitutional violation.
5. Misconduct During Closing Argument
Defendant contends the prosecutor committed misconduct during his
closing and rebuttal arguments. Defendant objected to only one of the statements
he argues was misconduct, thus forfeiting his claims as to the rest. (People v.
Brown (2003) 31 Cal.4th 518, 533.) In any event, we find there was no
misconduct but, even if there was, no prejudice.
When a prosecutor’s intemperate behavior is sufficiently egregious that it
infects the trial with such a degree of unfairness as to render the subsequent
conviction a denial of due process, the federal Constitution is violated.
Prosecutorial misconduct that falls short of rendering the trial fundamentally
unfair may still constitute misconduct under state law if it involves the use of
deceptive or reprehensible methods to persuade the trial court or the jury. (People
v. Ayala, supra, 23 Cal.4th at pp. 283-284.) “To preserve a claim of prosecutorial
misconduct for appeal, a criminal defendant must make a timely objection, make
known the basis of his objection, and ask the trial court to admonish the jury.”
(People v. Brown, supra, 31 Cal.4th at p. 553.) There are two exceptions to this
forfeiture: (1) the objection and/or the request for an admonition would have been
futile, or (2) the admonition would have been insufficient to cure the harm
occasioned by the misconduct. Forfeiture for failure to request an admonition will
also not apply where the trial court immediately overruled the objection to the
alleged misconduct, leaving defendant without an opportunity to request an
admonition. A defendant claiming that one of these exceptions applies must find
77
support for his or her claim in the record. (People v. Boyette, supra, 29 Cal.4th at
p. 432.) The ritual incantation that an exception applies is not enough.
Defendant contends that the prosecutor improperly appealed to the
prejudices and passions of the jury, and denigrated the presumption of innocence,
when he argued that the prosecution’s evidence had “stripped away” defendant’s
presumption of innocence. Additionally, he claims that the prosecutor’s reference
to the victim’s age, height, and weight also constituted an appeal to the jury’s
prejudices and passions because it drew an implied contrast between her stature
and defendant’s.
We disagree. “[T]he prosecutor has a wide-ranging right to discuss the case
in closing argument. He has the right to fully state his views as to what the
evidence shows and to urge whatever conclusions he deems proper.” (People v.
Lewis (1990) 50 Cal.3d 262, 283.) Here, the prosecutor’s references to the
presumption of innocence were made in connection with his general point that, in
his view, the evidence, to which he had just referred at length, proved defendant’s
guilt beyond a reasonable doubt, i.e., the evidence overcame the presumption.
Defendant’s further claim that the prosecutor’s reference to the victim’s
age, weight, and height were intended to appeal to the jury’s sympathies is also
without merit. These were facts in evidence. The prosecutor cannot be faulted for
misconduct because he referred to them nor was he required to discuss his view of
the case in clinical or detached detail. (People v. Hill, supra, 17 Cal.4th at p. 819
[“ ‘A prosecutor may “vigorously argue his case and is not limited to
‘Chesterfieldian politeness’ ” ’ ”], quoting People v. Williams, supra, 16 Cal.4th at
p. 221.)
Next, defendant cites three comments by the prosecution he claims
improperly lowered the burden of proof: (1) that it was a “reasonable
interpretation” from certain body fluid evidence that defendant and the victim
78
were on the bed in defendant’s bedroom; (2) that it was a “reasonable inference”
from other evidence regarding defendant’s habits, customs and statements to
Rauni Campbell that he videotaped the crime; and, (3) the analysis of tissue paper
found in the wastebasket in defendant’s bathroom “indicate[d]” that the victim had
orally copulated defendant.
Defendant failed to object to any of these comments, or to seek a curative
admonition, thus the claim is forfeited. (People v. Brown, supra, 31 Cal.4th at p.
553.) He argues that his failure to object or seek an admonition should be excused
under the futility exception, but cites nothing in the record to support its
application. In any event, these isolated references did not constitute an argument
that defendant could be convicted on a showing of less than guilt beyond a
reasonable doubt but were reasonable inferences or deductions that the prosecutor
could permissibly urge the jury to draw from the evidence. (People v. Hill, supra,
17 Cal.4th at p. 819.)
Finally, defendant argues that the prosecutor committed misconduct when,
in response to defense counsel’s claim that the prosecutor had failed to produce
either fingerprint or DNA evidence, he pointed out that the defense could also
have conducted these experiments. Defendant contends that the prosecutor’s
argument shifted the burden of proof from the prosecution to the defense.
Again, defendant’s failure to object to this argument or seek a curative
admonition forfeits the claim and he points to nothing on the record that would
excuse forfeiture. In any event, the claim is without merit. Defense counsel
argued that the prosecution had neglected to collect vital evidence, such as any
fingerprints on the suitcase in which the victim’s body was found or DNA
evidence, and suggested the reason was because it did not want to risk linking
someone else to the crime. The prosecutor’s argument was a proper rebuttal to
these claims. (People v. McDaniel (1976) 16 Cal.3d 156, 177; see also People v.
79
Wash (1993) 6 Cal.4th 215, 263, quoting People v. Szeto (1981) 29 Cal.3d 20, 34
[“prosecutorial comment upon a defendant’s failure to ‘introduce material
evidence or to call logical witnesses’ is not improper”].)
Our rejection of defendant’s specific claims of misconduct necessarily
forecloses his additional claim of cumulative error and cumulative prejudice.
I. Denial of Suppression Motion
Defendant contends the trial court erroneously denied his motion to
suppress evidence obtained in unjustified warrantless searches of his apartment
and residence or pursuant to an invalid search warrant, or statements obtained in
violation of Miranda v. Arizona (1964) 384 U.S. 436.22
1. Warrantless Searches of Defendant’s Residence and Vehicle
Defendant contends the police engaged in four warrantless searches of his
apartment between the late afternoon of Saturday, November 20, 1994 and
Sunday, November 21.23 He alleges further that, in this same time frame, the
police engaged in two warrantless searches of his vehicle.
“When reviewing a ruling on an unsuccessful motion to exclude evidence,
we defer to the trial court’s factual findings, upholding them if they are supported
22
The challenge to the statements was brought under Evidence Code section
402, not Penal Code section 1538.5, but some of the evidence adduced for
purposes of the admissibility issue was taken at the suppression hearing for the
convenience of the witnesses.
23
Defendant asserts that there was a fifth warrantless search of his residence
on Sunday morning, but the Attorney General points out that this assertion is
based on the mistaken testimony of a police detective who initially testified the
Sunday morning search had occurred at 11:50 a.m., but then on cross-examination
corrected himself and stated entry had occurred at 10:40 a.m. Thus, there was
only one search on Sunday morning, not two, and, in his suppression motion,
defendant did not argue otherwise.
80
by substantial evidence, but we then independently review the court’s
determination that the search did not violate the Fourth Amendment.” (People v.
Memro, supra, 11 Cal.4th at p. 846.)
The first entry into defendant’s apartment, unit 122, occurred sometime
after 5:30 p.m. on November 21. Around 4:30 or 5:00 p.m., as part of a door-to-
door search of the apartment complex, Officer Ruth Barnes and her partner
knocked at the door of defendant’s apartment and received no response, but she
observed the television was on. She went back a second time at roughly 5:30 p.m.
and knocked again. There was no response but she observed the television set was
now off. A neighbor told her that a woman and a young man in his 20’s lived in
the apartment. Barnes reported her information to Sergeant Patton. Patton had
independently learned that Nicole had been observed speaking to a male occupant
of unit 122. Based on this information, Patton obtained a key from the manager
and he and Barnes and two other officers entered the apartment to look for Nicole.
The search lasted between 5 and 15 minutes. The officers checked the rooms
upstairs and downstairs. Officer Barnes testified she did not search closets or look
under beds while Sergeant Patton testified he checked closets. When they did not
find Nicole, they left and the manager of the complex locked the door.
The trial court concluded the search was justified by exigent circumstances.
“A long-recognized exception to the warrant requirement exists when ‘exigent
circumstances’ make necessary the conduct of a warrantless search. . . .
‘ “[E]xigent circumstances” means an emergency situation requiring swift action
to prevent imminent danger to life or serious damage to property, or to forestall
the imminent escape of a suspect or destruction of evidence. There is no ready
litmus test for determining whether such circumstances exist, and in each case the
claim of an extraordinary situation must be measured by the facts known to the
officers.’ ” (People v. Lucero, supra, 44 Cal.3d at p. 1017, quoting People v.
81
Ramey (1976) 16 Cal.3d 263, 276; People v. Duncan (1986) 42 Cal.3d 91, 97-98
[“ ‘As a general rule, the reasonableness of an officer’s conduct is dependent upon
the existence of facts available to him at the moment of the search or seizure
which would warrant a man of reasonable caution in the belief that the action
taken was appropriate’ ”], quoting People v. Block (1971) 6 Cal.3d 239, 244.)
Among the factors the trial court cited in applying the exigent
circumstances exception was that Nicole had been missing for several hours, the
only lead the police had was that she had been seen talking to a male occupant of
defendant’s apartment and a neighbor told Barnes a young male lived in
defendant’s apartment. The trial court also cited Officer Barnes’s observations
about the television having been on and off, which indicated someone may have
been in the apartment, the fact that the person missing was a child, which
heightened the exigency because, aside from being a victim of a crime, she might
have been injured or unable to extricate herself, and the fact that the search
consisted of a cursory search of obvious places where a child might be found.
We agree that the first entry into defendant’s residence fell within the
exception to the warrant requirement for exigent circumstances. Defendant does
no more than assert the trial court’s ruling was in error. His cursory argument is
not persuasive — as even he seems to recognize — because, elsewhere in his
brief, he acknowledges the initial search was arguably justified by the exception.
He contends, however, that in addition to exigent circumstances, the police
were required to have had probable cause to believe Nicole was in the apartment.
We conclude that the circumstances known to Sergeant Patton sufficiently
82
establish probable cause for the brief entry into defendant’s apartment.24
Moreover, as defendant concedes in his reply brief, no evidence was collected by
police during their first entry into his apartment and, therefore, even if the entry
was unjustified, there was nothing to suppress. (See People v. Mattson (1990) 50
Cal.3d 826, 850-851 [purpose of the suppression statute is to “exclude evidence
obtained in violation of defendant’s state and/or federal (Fourth Amendment) right
to be free of unreasonable search and seizure”].)
The trial court concluded that the second and third entries by police into
defendant’s residence were with the consent of his mother, Mehri Monfared. It is
settled that when voluntary consent to search has been given by the individual
whose property is searched, the requirement of a search warrant is excused.
(People. Memro, supra, 11 Cal.4th at pp. 846-847.) The evidence adduced at the
suppression hearing supports application of this exception to the second and third
entries.
When Ms. Monfared returned to the complex in the early evening of
November 20, Officer Barnes approached her in the parking lot and asked her
about defendant’s whereabouts. She told Barnes defendant was at work. Barnes
asked Ms. Monfared if she would phone him and allow Barnes to talk to him.
Monfared agreed. She unlocked the door to her apartment and Barnes followed
her in. Monfared called defendant, spoke to him, then gave the phone to Barnes,
who also spoke to defendant. She then returned the phone to Monfared and left
the apartment.
24
The Attorney General argues the first search was also justified by the
community caretaker exception to the Fourth Amendment warrant requirement,
(see People v. Ray (1999) 21 Cal.4th 464) but, as we conclude the exigent
circumstances doctrine applies, we need not reach this issue.
83
Later that evening, Ms. Monfared spoke to Ahmad Seihoon. Monfared told
him police were looking for the man who had spoken to Nicole. Seihoon returned
to defendant’s apartment. In response to a call from Monfared, three or four
police entered her apartment to speak to Seihoon. He was briefly interviewed in
the dining room about his conversation with Nicole.
Defendant contends there was neither express nor implied consent from
Ms. Monfared for the police to enter the apartment. Not so. The entry by Officer
Barnes to speak to defendant on the phone was plainly with the implied consent of
Ms. Monfared. (People v. Martino (1985) 166 Cal.App.3d 777, 791 [“Consent to
enter a residence may be given nonverbally”].) The second entry by police to
interview Seihoon was at Monfared’s express invitation. Defendant asserts Ms.
Monfared’s consent was the product of coercion but cites nothing in the record to
support this assertion. He also claims that while one police officer interviewed
Seihoon, other police officers searched defendant’s room. Again, the record does
not support this assertion. While Seihoon testified that other police were in the
apartment while he was interviewed, there was no testimony that they searched
defendant’s room or any other part of the apartment.
The fourth search of defendant’s residence took place on the morning of
November 21, when a number of police officers, including Detectives Burris,
Navarro and Peloquin, entered the apartment. Prior to the search, Burris and
Navarro went to the police station where they learned that a police officer was at
the apartment of defendant’s former girlfriend, Rauni Campbell, that defendant
had attempted to commit suicide but fled when police arrived, and that he was a
resident of the apartment complex from which Nicole had disappeared. Burris
learned that defendant might have been involved in Nicole’s disappearance and
obtained the unit number of defendant’s apartment from Navarro. Burris led the
search of defendant’s apartment to find Nicole. He instructed the other officers
84
involved to look in places where she might be hidden or hiding. He did not
instruct his fellow officers to gather evidence of any kind. Burris terminated the
search after 10 to 15 minutes.
The trial court found that this entry was also justified by the exigent
circumstances exception. The court concluded the exigency had not dissipated
between the first entry and this one but became “heightened” because it was not
until this point that police had their first concrete evidence that Nicole’s
disappearance involved a crime, rather than an accident, and that defendant was
involved. We agree with the trial court’s analysis. This search involved different
officers than those who conducted the first search and it was based on different
and even more detailed information clearly raising the possibility that Nicole may
have been in the apartment.
Defendant argues the passage of time between the first entry and the fourth
entry, the police presence at the apartment complex during that period, and
indications that Nicole was dead terminated any exigency. Not so. Less than 24
hours had passed between the arrival of police at the apartment complex and the
Sunday morning search. The police could still reasonably have believed Nicole
was alive notwithstanding defendant’s statement to Rauni Campbell that Nicole
was not alive. Defendant did not tell Campbell why he believed Nicole was dead,
nor provide any details of her death. Police, meanwhile, had found bloodstained
knives and bloodstains in defendant’s car. The police could reasonably have
believed that defendant had stabbed Nicole or inflicted some other serious, but not
yet fatal, injury despite his statement to Campbell. While they had no definitive
evidence Nicole was dead, they did know, beyond doubt, that she was the victim
of some kind of criminal activity. We therefore agree with the trial court that the
information police received regarding defendant’s possible involvement in
85
Nicole’s disappearance heightened the exigent circumstances and that the fourth
entry was justified on this ground.25
Defendant argues that Burris waited an hour and a half after learning of the
information about defendant’s possible participation in Nicole’s disappearance
before going to defendant’s apartment, thus undermining the claim of exigency.
The record reveals, however, that Burris testified he arrived at the police station at
10:15 a.m. and was at defendant’s apartment by 10:40 a.m.
Defendant also challenges two searches of his vehicle. Detective Burris
testified that, after he terminated the search of defendant’s apartment, he went to
Campbell’s apartment complex. There he learned that Campbell had identified a
black BMW as belonging to defendant, and that the car was registered to
defendant’s mother. He and Sergeant Mascola examined the car. The outside of
the car was dirty and muddy. They both observed what appeared to be blood on
the front seat. Mascola also saw two knives inside the car, one of which was
bloodstained, and a “cord-type wire” protruding from the trunk. Based on these
observations, Burris formed the belief that Nicole might be in the trunk and had it
pried open. Nicole was not found. A bloodstained notebook was then removed
from the front seat of the car and examined by Burris and Mascola, who thought
there might be something in it pertaining to Nicole’s whereabouts.
The vehicle was impounded and removed to a tow yard where it was
examined by a criminalist, Robert Monson, accompanied by Detective Peloquin.
25
Additionally, no evidence was collected during this search. Police did
observe posters of scantily clad women on the walls of defendant’s room and a
video camera and these observations found their way into the affidavit for the
search warrant. Even if we assume the search was unjustified and that these
observations should have been suppressed, probable cause for the search warrant
would still have existed. (See pp. 89-90, fn. 27, post.)
86
After a visual inspection of the exterior of the vehicle, Monson collected evidence
from the interior including the bloodstained notebook, a bloodstained knife, and
bloodstains from front and rear seats.
In rejecting defendant’s challenge to the vehicle searches, the trial court
concluded that the first search was justified by exigent circumstances and both
searches were justified by probable cause. We agree. Based on the circumstances
known to Detective Burris and Sergeant Mascola, and their observations of
apparent bloodstains in the car, knives, and a cord protruding from the truck that
could have been used for binding, their belief that Nicole might be found in the
trunk justified their search of the trunk, and their belief that the notebook might
contain information regarding her whereabouts justified their inspection of it.26
Moreover, the automobile exception to the Fourth Amendment’s warrant
requirement also applies to the initial search. (United States v. Ross (1982) 456
U.S. 798; People v. Chavers (1983) 33 Cal.3d 462, 466 [under Ross, “police
officers who lawfully stop a vehicle, having probable cause to believe that
contraband is located or concealed . . . or somewhere therein, may conduct a
warrantless search of the vehicle that is as thorough (as to location and type of
container searched) as that which a magistrate could authorize by warrant”].) The
probable cause to search had not dissipated even after the vehicle had been
impounded. (Florida v. Meyers (1984) 466 U.S. 380, 382, quoting Michigan v.
Thomas (1982) 458 U.S. 259, 261 [“ ‘the justification to conduct such a
warrantless search does not vanish once the car has been immobilized’ ”].)
26
The notebook contained equivocal but somewhat incriminating statements
by defendant but, as he concedes, it was not introduced at trial.
87
Furthermore, as defendant concedes, the second search of his car did not uncover
evidence that connected him to Nicole’s murder.
2. Miranda Issues
Defendant also challenged statements taken and physical evidence obtained
from him, on grounds that they were obtained in violation of his rights under
Miranda v. Arizona, supra, 384 U.S. 436 (Miranda).
Defendant was arrested by Officer Gourman. Upon being arrested he said
something about having driven around Mulholland where there was a waterfall
with someone he worked with at Mervyn’s. He declined to answer Officer
Gourman’s follow-up questions.
Detective Burris arrived at the scene of defendant’s arrest around 11:50
a.m. Without advising him of his Miranda rights, Burris proceeded to question
him about Nicole’s whereabouts because he believed she might still be alive. He
asked defendant, “Where’s the little girl?” Defendant told Burris he and two
others might have taken her and dumped her over the “side of a hillside where
there’s a waterfall.” Defendant was also questioned at the scene by Officer
Angelo, who asked him if the little girl was okay. Defendant responded that he
did not know what Angelo was talking about. He said, “What little girl?”
Defendant was then taken to West Valley Hospital. At the hospital he was
questioned by Officer Joe as to Nicole’s whereabouts. Officer Joe did not advise
defendant of his Miranda rights. Defendant listed various places she might be and
said “he’d like to be with the girl so much, that he would even carry her skeleton
remains around.” He was later interviewed by Detective Peloquin after being
advised of his Miranda rights and waiving them. Peloquin showed defendant a
photograph of Nicole and asked him if he knew her because police were looking
for her. Defendant said he had seen her the previous day at the apartment
complex. When asked if he knew where she was, he said yes, and “something to
88
the nature of it was Mulholland near a waterfall.” When asked if she was still
alive, he said no.
In response to a question by a nurse treating him about whether he knew
Nicole, defendant said “he may have seen her by a waterfall or the men in black
hoods made him do it.” She asked him if he had taken little girls before and he
said, “yes, dozens of times.”
Later that afternoon criminalist Monson arrived and obtained from
defendant fingernail scrapings and clippings, a blood sample, blood from the
cuticles and pubic hair samples. Defendant’s pubic area was partially shaved.
When Monson asked why, he said, “to look good for the girls on Friday night.”
He also collected defendant’s clothing from Detective Peloquin and an elastic hair
band.
The trial court found that the questioning of defendant at the scene of his
arrest by Detective Burris and Officers Gourman and Angelo, and at the hospital
by Officer Joe, was permissible under the rescue exception to Miranda, supra, 384
U.S. 436.
Under some narrow circumstances, sometimes called the “public safety” or
“rescue” exceptions, compliance with Miranda is excused where the purpose of
police questioning is to protect life or avoid serious injury and the statement is
otherwise voluntary. (New York v. Quarles (1984) 467 U.S. 649, 657 [“We
conclude that the need for answers to questions in a situation posing a threat to the
public safety outweighs the need for the prophylactic rule protecting the Fifth
Amendment’s privilege against self-incrimination”]; accord, People v. Coffman
and Marlow, supra, 34 Cal.4th at pp. 56-57; see People v. Riddle (1978) 83
Cal.App.3d 563, 579 [compliance with Miranda excused where exigent
circumstances exist “in that the need for action was urgent, the possibility of
89
saving human life was present, and the primary motive for police questioning was
rescue”]; People v. Stevenson (1996) 51 Cal.App.4th 1234, 1238.)
Defendant contends the trial court erred in applying this exception to the
statements elicited from him at the scene of his arrest and by Officer Joe at the
hospital because there was no exigency. He asserts the information available to
the police by the time they questioned him indicated that Nicole was dead. We
disagree. Some of the very evidence cited by defendant — Rauni Campbell’s
statement that defendant said he had done something bad, the discovery of the
knives and bloodstains in defendant’s car — could only have heightened the belief
of the police that Nicole was injured but still alive, as her body had not yet been
found when defendant was questioned. Furthermore, the officers’ testimony
establishes that the primary purpose of the questioning was rescue. Finally,
notwithstanding defendant’s perfunctory assertion that the statements were not a
product of his free will, the record supports the conclusion the statements were
voluntary. We conclude, therefore, that the trial court properly admitted these
statements.
With respect to Detective Peloquin’s questioning of defendant at the
hospital after defendant waived his rights, the trial court concluded that
defendant’s medical and psychological condition did not render his waiver
involuntary. It rejected any suggestion that the waiver was obtained by coercion.
The trial court also found admissible statements made by defendant to the treating
physician and nurse at the hospital, concluding they were not acting as agents for
the police.
Defendant renews his claim that his hospital waiver was involuntary
because of his compromised physical and psychological condition. In reviewing
this claim, “the trial court’s findings as to the circumstances surrounding the
confession are upheld if supported by substantial evidence, but the trial court’s
90
finding as to voluntariness of the confession is subject to independent review.”
(People v. Massie (1998) 19 Cal.4th 550, 576.)
Defendant argues that when he was admitted to the hospital, he was
suffering from acute psychosis, was under the influence of drugs, and suffering
from the effects of his suicide attempt, thus precluding a voluntary waiver of his
rights. He also claims he was heavily affected by intrusive medical procedures,
including the use of a catheter to extract a urine sample, injection with a
tranquilizer and the injection of charcoal into his system to absorb the sleeping
pills. Defendant also points out that Peloquin testified that defendant was
alternately rational and irrational.
The procedures to which defendant refers took place after Peloquin
interrogated him and could have had no effect on the voluntariness of his waiver.
While Peloquin acknowledged defendant was sometimes irrational during the
interrogation, he also testified that defendant was responsive to his questioning,
and his testimony was corroborated by the nurse who attended defendant. The
court observed further that there was no question of police coercion in obtaining
defendant’s statement. (People v. Williams, supra, 16 Cal.4th at p. 659 [“A
confession or admission is involuntary, and thus subject to exclusion at trial, only
if it is the product of coercive police activity”].) We conclude, therefore, that
defendant’s statements to Detective Peloquin were not involuntary.
Finally, defendant argues that the physical evidence obtained from his
person must be suppressed as the fruit of the poisonous tree, by which, presumably
he means his various statements to police. As we have found these statements
were not taken in violation of his Miranda rights, we necessarily reject this
corollary argument.
91
3. Challenge to Search Warrant
Defendant contends the search warrant issued for his apartment should have
been quashed because the affiant, Detective Price, omitted material information
and included false information.27 The trial court found that the affiant had not
included statements that were either false or made in reckless disregard of the truth
27
Price’s affidavit related the following information: That, at 1:05 p.m. on
November 20, police were notified of Nicole’s disappearance by her parents; that
she had last been seen playing ball outside the Parkers’ apartment; that a command
post was established at the complex and an extensive search had failed to locate
her; that on Sunday morning, Rauni Campbell called police to report defendant’s
suicide attempt; that, when Officer Kong responded to the call, defendant fled; that
Campbell told Kong defendant had told her he had done something very bad and
was involved in the disappearance of an eight-year-old girl; that defendant lived in
the same apartment complex as the missing girl; that defendant said the police
would find out about it because they would find the video and the photographs;
that, shortly afterwards, Officer Gourman observed defendant running from
Campbell’s apartment complex and arrested him; that defendant had ingested a
number of sleeping pills and was transported to West Valley Hospital; that
Campbell was taken to the police station where she made further statements about
her conversation with defendant, including that “[t]hey” were going to make it
look like he did it and the police were going to find the video and photographs,
and that the girl was dead; that defendant’s car was located, the trunk was forced
open in an effort to find Nicole, and then the vehicle was impounded; that a
second car registered to defendant was found parked in the parking garage at his
apartment complex; that Detectives Burris and Navarro entered defendant’s
apartment to look for the girl and observed a video camera and photographs of
women in various states of dress; that the residence was secured pending a search
warrant; that Burris spoke to defendant who said he had dumped the girl’s body
somewhere off Mulholland Drive near a waterfall; that during this interview
defendant was alternately rational and irrational; that he then retracted his
statement about dumping the body; that physical evidence had been obtained from
defendant’s person; that defendant told criminalist Monson he had shaved his
pubic hair; and that Price believed defendant had kidnapped the victim,
photographed and videotaped her and then murdered her; that evidence showing
the commission of these offenses would be found at defendant’s residence and the
two vehicles referred to in the affidavit.
92
and that none of the information defendant claimed had been omitted from the
affidavit was material to probable cause. The information defendant claims was
omitted included any mention of the prior entries into his apartment; that Officer
Barnes had spoken to defendant and his mother; and that Mr. Seihoon was the last
person seen talking to Nicole. Defendant contended further that the affiant
erroneously stated that Nicole lived in the same apartment complex as defendant,
inaccurately reported certain statements made by defendant to police, and failed to
report defendant’s “deplorable” condition at the hospital when the statements were
made. We agree with the trial court that these omissions were immaterial to
probable cause.
Defendant also argues the search warrant should have been quashed
because it was based, in part, on the prior illegal warrantless searches of
defendant’s residence and vehicle and on statements obtained in violation of
Miranda. We have, however, rejected his challenges to the warrantless entries
into his residence and vehicle and his Miranda claims. Our conclusions in this
respect eliminate the predicate of his challenge to the search warrant on this
ground. To the extent that defendant is advancing a Franks claim (Franks v.
Delaware, supra, 438 U.S. 154), he fails to make the required showings either that
the affidavit contains statements that are deliberately false or were made in
reckless disregard of the truth or that, even had the allegedly false statements been
excised, the remaining contents of the affidavit would have been insufficient to
support a finding of probable cause. (Id. at pp. 155-156.) We conclude that the
trial court properly denied his motion to quash the search warrant.
93
J. Guilt Phase Evidentiary Rulings
1. Testimony Regarding Videotapes
Defendant contends the trial court erred when it allowed Detective Price to
testify about videotapes taken from defendant’s bedroom that depicted him having
sexual intercourse with consenting adult women. The actual videotapes were not
admitted. Defendant objected that the testimony was irrelevant and, even if
relevant, was more prejudicial than probative under Evidence Code section 352.
He additionally objected that the evidence violated the best evidence rule.28
“‘Relevant evidence’ means evidence . . . having any tendency in reason to
prove or disprove any disputed fact that is of consequence to the determination of
the action.” (Evid. Code, § 210.) “We apply the deferential abuse of discretion
standard when reviewing a trial court’s ruling on a relevance objection.
[Citations.] We discern no abuse of discretion here.” (People v. Kipp (2001) 26
Cal.4th 1100, 1123.) Rauni Campbell testified that defendant told her on the
morning after the murder that what he had done was “so big” and she would “find
out about it” because “they have a tape of me.” Additionally, Detective Navarro
28
For the first time on appeal, defendant contends that admission of this
testimony violated the due process clauses of the Fifth and Fourteenth
Amendments and undermined the reliability required for a conviction under the
Eighth and Fourteenth Amendments to the United States Constitution. Assuming
without deciding that defendant’s trial objections preserved these federal claims
(see People v. Yeoman, supra, 31 Cal.4th at pp. 117, 133), the constitutional
claims fail. We apply the same analysis to defendant’s assertion of constitutional
violations in connection with the allegedly erroneous admission into evidence of
(1) his ring, (2) crime scene photographs, (3) state of mind testimony, (4) the
prosecution’s allegedly improper cross-examination of Victoria Eckstone, (5) the
denial of defendant’s request to recall Ms. Eckstone to testify to her detention for
drug use after her testimony, and (6) his claim of cumulative prejudice. (See
discussion, post.)
94
testified that the search of defendant’s apartment on Sunday morning was stopped
when he saw a video camera facing the bed.
Thus, the testimony was relevant to explain defendant’s statement to
Campbell; that is, whether any tapes, in fact, existed and if they depicted
defendant and Nicole. They were also relevant to rebut the defense’s claim that
the body fluids found in defendant’s bedroom and bathroom, which were
consistent with oral copulation, could have come from other sexual partners of
defendant, because the videotapes did not show acts of oral copulation. On this
point, the evidence need not have been definitive as long as it had some tendency
to establish the identity of the source of the fluids. (People v. Garceau (1993) 6
Cal.4th 140, 177.)
We also find no abuse of the trial court’s discretion conferred by Evidence
Code section 352. (People v. Brown, supra, 31 Cal.4th at p. 576.) As the trial
court observed, there was already testimony from Ms. Campbell that she and
defendant had engaged in sexual intercourse in his bedroom. Furthermore, the
testimony about the tapes was neither graphic nor extensive.
Defendant also objected to the testimony under the best evidence rule.
Former Evidence Code section 1500 provided: “Except as otherwise provided by
statute, no evidence other than the original of a writing is admissible to prove the
content of a writing.”29 For purposes of this section, a videotape is a writing.
(People v. Morgan (1974) 39 Cal.App.3d 398, 407-408.) The purpose of the best
evidence rule is “to minimize the possibilities of misinterpretation of writings by
requiring the production of the original writings themselves, if available.” (Cal.
29
In 1998, this section was replaced with the secondary evidence rule (Evid.
Code, §§ 1520-1523), but because this proceeding occurred before January 1,
1999, the former rule applies. (Stats. 1998, ch. 100, § 9.)
95
Law Revision com. com., 29B, pt. 4, West’s Ann. Evid. Code (1995 ed.) foll.
§ 1500, p. 488.) Therefore, “[t]he best evidence rule applies only when the
contents of a writing are at issue.” (Hewitt v. Superior Court (1970) 5 Cal.App.3d
923, 930.) Conversely, “[u]nless the content is in issue the best evidence rule does
not come into play.” (People v. Marcus (1973) 31 Cal.App.3d 367, 371.) Where
no dispute exists regarding the accuracy of the evidence received in lieu of the
original writing, any error in admitting such evidence is harmless. (People v.
Bizieff (1991) 226 Cal.App.3d 1689, 1697-1698.)
In the instant case, defendant’s best evidence objection was pro forma.
Defendant neither challenged Detective Price’s testimony regarding the contents
of the videotapes nor did he request that the tapes be played. Accordingly, even
assuming defendant’s perfunctory objection was sufficient to raise the issue, we
conclude that any violation of the best evidence rule was harmless.
2. Admission of Defendant’s Ring
Defendant contends that the trial court erroneously admitted into evidence
his ring because there was insufficient foundation. The ring, which was
apparently skull shaped, was relevant to Dr. Heuser’s testimony about scratches on
the inside of Nicole’s thigh. Dr. Heuser testified the scratches were consistent
with having been inflicted by the ring. Prior to her testimony, criminalist Robert
Monson testified that the ring, along with a necklace and a pendant, was given to
him by Detective Peloquin at the emergency room of West Valley Hospital. When
asked whether Detective Peloquin indicated if he took these items from defendant,
Monson answered, “Yes.” There were no objections to his testimony on either
hearsay or foundational grounds. Detective Peloquin did not testify at trial.
At the close of the prosecution’s case, the prosecution moved the ring into
evidence. The defense objected on grounds of lack of foundation and hearsay.
96
Outside the presence of the jury, the trial court read into the record the
prosecutor’s examination of Monson regarding how he obtained the ring. The trial
court noted this testimony came in without objection and concluded, “that’s the
foundation.”
Defendant renews his claims that there was insufficient foundation and that
Monson’s testimony was hearsay. With respect to the hearsay claim, “ ‘[i]t is
settled law that incompetent testimony, such as hearsay or conclusion, if received
without objection takes on the attributes of competent proof when considered upon
the question of sufficiency of the evidence to support a finding.’ ” (People v.
Bailey (1991) 1 Cal.App.4th 459, 463, quoting Berry v. Chrome Crankshaft Co.
(1958) 159 Cal.App.2d 549, 552; Estate of Fraysher (1956) 47 Cal.2d 131, 135
[“evidence which is admitted . . . without objection, although incompetent, should
be considered in support of that court’s action”]; People v. Pierce (1979) 24
Cal.3d 199, 206, fn. 3.) Here, applying these principles, the trial court reasonably
concluded that defendant’s failure to lodge a timely hearsay objection to Monson’s
testimony forfeited such objection.
By contrast, his foundational objection to the admission of the exhibit was
timely. We conclude, however, that the trial court did not abuse its discretion in
admitting the evidence because Monson’s testimony sufficiently connected
defendant to the ring. (People v. Coddington (2000) 23 Cal.4th 529, 587 [“A trial
court’s exercise of discretion in admitting or excluding evidence is reviewable for
abuse”].) In any event, even if the trial court erred in admitting the evidence, the
overwhelming evidence of defendant’s guilt renders any such error harmless. (Id.
at p. 588.)
97
3. Crime Scene Photographs
Defendant contends that the trial court should have excluded crime scene
photographs of the victim because they were gruesome, cumulative, and more
prejudicial than probative. The eight photographs in question depict the victim’s
unclad body and show injuries inflicted on her face, chest, arms, and rectum. Over
defendant’s objections, the trial court admitted the photographs as relevant to the
nature and extent of the victim’s injuries, whether the injuries were premortem or
postmortem, and to assist the coroner in her testimony.
We have viewed the photographs, agree they are relevant for the reasons
stated by the trial court, and conclude the trial court did not abuse its considerable
discretion under Evidence Code section 352 in admitting them. (People v. Stewart
(2004) 33 Cal.4th 425, 480-481; People v. Scheid (1997) 16 Cal.4th 1, 18 [trial
court’s determination under section 352 will not be reversed “unless the probative
value of the photographs clearly is outweighed by their prejudicial effect”].)
Furthermore, while the photographs are disturbing because they depict a dead
child, her body is intact and neither her injuries nor any other aspect of the
photographs can accurately be characterized as gruesome.
4. State of Mind Evidence
Defendant contends that the trial court erroneously admitted testimony
about an argument he had with Adele Bowen, his supervisor at Mervyn’s, the day
before the murder. The defense objected on grounds of “[r]elevance. 352.” The
trial court overruled the objection, concluding the testimony was relevant to
defendant’s state of mind.
While evidence about defendant’s state of mind in the hours following the
disappearance of Nicole was relevant, we agree with defendant that evidence he
argued with his supervisor the night before was not relevant for this purpose.
98
Nonetheless, Bowen’s brief testimony, even if admitted in error, was harmless.
(People v. Watson (1956) 46 Cal.2d 818, 836.)
5. Qualifications of Prosecution Expert
Defendant contends the trial court erred by denying his request to conduct a
hearing pursuant to Evidence Code section 402 on the qualifications of the
prosecution’s forensic serologist, William Moore. The record reveals, however,
that defendant never made such a request. Rather, he objected to the prosecution’s
attempt to pose a hypothetical question to Moore to establish that the pattern of
semen on defendant’s bed sheet was consistent with semen having been
expectorated by the victim. At the sidebar hearing on defendant’s objection,
defense counsel disparaged Moore’s qualifications but the reason he sought a “402
hearing” was because he claimed the attempted hypothetical question amounted to
a “new theory.” The trial court denied the request. It remarked, “I’m satisfied
he’s an expert,” and told defense counsel he was free to cross-examine Moore
about any opinion that he had not previously included in his reports or prior
testimony.
Defendant’s failure to have challenged Moore’s expert qualifications in the
trial court forfeits his claim. (People v. Farnam (2002) 28 Cal.4th 107, 162
[defendant forfeited claim that expert was not qualified to testify to blood-splatter
evidence and crime scene reconstruction where his objection was to expert’s
qualification to estimate the amount of time elapsing from the start to finish of the
attack on the victim].) The claim is also without merit. The trial court specifically
found that Moore was an expert. That determination is governed by the
deferential abuse of discretion standard and “will not be disturbed absent a
showing of manifest abuse.” (People v. Bolin (1998) 18 Cal.4th 297, 322.) “Error
regarding a witness’s qualifications as an expert will be found only if the evidence
99
shows that the witness ‘ “ ‘clearly lacks qualification as an expert.’ ” ’ ” (People
v. Farnam, supra, 28 Cal.4th at p. 162, quoting People v. Chavez (1985) 39 Cal.3d
823, 828.) Moore testified he had a bachelor’s degree in biology and had worked
in private industry as a chemist before joining the Los Angeles Police
Department’s Scientific Investigation Unit. He had spent seven years in the
narcotics and alcohol analysis units before joining the serology unit in 1991. He
had qualified as a serology expert on four previous occasions, but this was his first
death penalty case. Defendant’s complaints about those qualifications go to the
weight of Moore’s testimony, not its admissibility. (Ibid.)
6. Limitation of Cross-examination of Rauni Campbell
During his cross-examination of Rauni Campbell, defense counsel asked
her whether she and defendant “had smoked marijuana.” The prosecutor objected
on relevance grounds and the objection was sustained.
Defendant argues the trial court’s ruling improperly restricted cross-
examination and violated his state and federal constitutional rights. Not so.
Evidence of a witness’s drug use is inadmissible unless the testimony “tends to
show that the witness was under the influence thereof either (1) while testifying, or
(2) when the facts to which he testified occurred, or (3) that his mental faculties
were impaired by the use of such narcotics.” (People v. Hernandez (1976) 63
Cal.App.3d 393, 405.) Here, defense counsel’s question was phrased in the past
tense and referred to some unspecified time. It was, therefore, properly excluded
as irrelevant. Because the trial court’s ruling was proper, “there is thus no
predicate error on which to base the constitutional claims.” (People v. Roybal,
supra, 19 Cal.4th at p. 506, fn. 2.)
100
7. Improper Cross-examination of Victoria Eckstone
Defendant contends the trial court allowed improper impeachment of
Victoria Eckstone about whether she called Detective Price from jail and asked for
his help in obtaining her release, after she had testified on direct examination that
she had felt coerced by Price and the prosecutor into agreeing to talk to them about
defendant. Defendant argues that evidence of her arrest on an unrelated matter
constituted inadmissible character evidence.
Evidence that Ms. Eckstone asked Detective Price for help and did not get
it was clearly relevant to her credibility because it could have provided a reason
for her hostility to the prosecution. (People v. Carpenter (1999) 21 Cal.4th 1016,
1054; Evid. Code, § 780, subd. (b).) Moreover, evidence that she sought Price’s
assistance also tended to undercut her direct testimony that he threatened to arrest
her to induce her cooperation in the investigation of the case against defendant.
Nor was the brief reference to her having been arrested so prejudicial that the trial
court abused its discretion by not excluding it pursuant to Evidence Code section
352.
8. Exclusion of Evidence of Eckstone’s Detention
Defendant contends the trial court violated his constitutional rights to a fair
trial and to present a defense when, pursuant to Evidence Code section 352, it
refused his request to recall Ms. Eckstone to testify to her detention for drug use
after her initial testimony. (See pp. 74-76, ante.)
Notwithstanding defendant’s insinuation that Eckstone’s detention was
engineered by the prosecution in retaliation for her testimony, the record is clear
that neither the prosecutor nor the court had anything to do with it. Thus, the
evidence was irrelevant to any issue in the case. Moreover, even if there was
some tangential relevance to her testimony, its probative value would have been
101
vastly outweighed by the probability that it would either have required an undue
consumption of time or may have confused the issues and misled the jury. (Evid.
Code, § 352.) We find no abuse of discretion in the trial court’s exclusion of the
evidence.
9. Cumulative Error
Defendant contends that the cumulative effect of evidentiary error requires
reversal. “Defendant has demonstrated few errors, and we have found each error
or possible error to be harmless when considered separately. Considering them
together, we likewise conclude that their cumulative effect does not warrant
reversal of the judgment.” (People v. Bolden (2002) 29 Cal.4th 515, 567-568.)
K. Juror Bias
Defendant contends the trial court erred by failing to grant a mistrial motion
based on bias by the jurors against defendant’s family. His argument is wholly
without merit, not the least because he failed to make a mistrial motion on this
ground.
It appears from the record that some supporters of defendant were
following or “shadowing” the jurors during breaks in their deliberations, while
others, including his mother, were clustering near the jury while it was assembling
on breaks. Against this backdrop, the trial court reported a juror had told the
bailiff she felt intimidated by the presence of defendant’s supporters, particularly
his mother. The bailiff noted that he had also overheard a male juror express relief
that the jury no longer had to assemble “on the sixth floor,” presumably to avoid
contact with defendant’s supporters.
During the ensuing discussion of this problem, defense counsel did not
move for a mistrial based on juror bias. Indeed, when the trial court asked counsel
if he wanted the court to question the juror who had complained about defendant’s
102
mother to determine if she was being influenced by the presence of anyone in the
hallway, he said, “No, Your Honor.”
Thus, defendant’s belated claim of juror bias is forfeited. It is also
meritless. There is no evidence the jury was biased against defendant, his mother,
or his supporters, much less that such bias infected its deliberations. What the
record seems to indicate is spectator misconduct on the part of defendant’s
supporters who, intentionally or not, made themselves conspicuous to the jurors in
a manner that some of the jurors interpreted as intimidating. The jurors’
understandable concern does not amount to misconduct and there is nothing on the
record to support defendant’s claim that he was denied an impartial jury.
L. Third Party Culpability Evidence
1. Exclusion of Third Party Culpability Evidence
Defendant contends the trial court erred by excluding third party culpability
evidence, as well as evidence of defendant’s 1988 suicide attempt, and by denying
his subsequent mistrial motion. These arguments are without merit.
“A criminal defendant has a right to present evidence of third party
culpability if it is capable of raising a reasonable doubt about his own guilt. The
rule does ‘not require that any evidence, however remote, must be admitted to
show a third party’s possible culpability . . . . [E]vidence of mere motive or
opportunity to commit the crime in another person, without more, will not suffice
to raise a reasonable doubt about a defendant’s guilt: there must be direct or
circumstantial evidence linking the third person to the actual perpetration of the
crime.’ [Citation.]” (People v. Sandoval, supra, 4 Cal.4th at p. 176, quoting
People v. Hall (1986) 41 Cal.3d 826, 833.)
The third party culpability evidence defendant contends was erroneously
excluded involved testimony defendant attempted to elicit from a police witness
about three men in a moving van observed at the apartment complex the morning
103
of Nicole’s disappearance, evidence about Ahmad Seihoon and his two sons, one
12, the other 17, whom defendant seems to imply were those three men, and a
threatening telephone call made to defendant by a man named Sean.
Preliminarily, defendant did not offer the evidence of the three men in a van
to show third party culpability but to show the inadequacy of the police
investigation. Defense counsel acknowledged he was not attempting to elicit the
evidence for the truth of the matter, i.e., that there were three men in a van, but to
demonstrate the police failed to follow up on obvious leads. Since defendant did
not seek admission of the testimony as third party culpability evidence, he
forfeited any claim that it was improperly excluded for that purpose. (Evid. Code,
§ 354, subd. (a).) Besides, the mere presence of three men in the parking lot of
defendant’s apartment complex at the time Nicole disappeared, absent any
evidence, direct or circumstantial, linking them to the crime, does not qualify as
admissible third party culpability evidence.
Defendant’s somewhat confusing argument as to Ahmad Seihoon seems to
suggest he and his two sons may have been the three men in the van, or perhaps
that this was what defendant hoped to establish by questioning the officer about
the three men. Again, defendant did not argue this point below, thus forfeiting it,
and, in any event, the mere fact that Seihoon was observed talking to Nicole
shortly before her disappearance was insufficient to render admissible as third
party culpability evidence any evidence about Seihoon and his sons. Even less
persuasive is defendant’s claim regarding the threatening phone call by “Sean.”
Defendant argued the phone call demonstrated someone was “out to get” him and
could therefore have been involved in Nicole’s disappearance and death. The trial
104
court properly excluded this evidence as irrelevant and inadmissible under
Evidence Code section 352.30
Under Evidence Code section 352 the trial court also excluded evidence of
defendant’s 1988 suicide attempt. The defense sought to offer evidence of that
attempt to negate any inference of consciousness of guilt from his suicide attempt
at Ms. Campbell’s apartment the morning after the crime. As the trial court noted,
defendant’s 1988 attempt at suicide was not a reaction to any allegation he had
been involved in a crime, therefore it was, at best, minimally relevant. The trial
court found any such relevance was outweighed by the potential of the issue to
confuse the jury or involve the undue consumption of time. (Evid. Code, § 352.)
We agree. The exclusion of evidence of a four-year-old suicide attempt under
circumstances that were not remotely similar to those under which he attempted
suicide in this case was not an abuse of the trial court’s discretion.
As there was no error in the trial court’s rulings, the court properly denied
defendant’s mistrial motion.31
30
Defendant’s reply brief refers to another “suspicious incidence” (sic)
allegedly contained in a report by Mr. Parker to police about a man sitting in a van
who approached him and questioned him about Nicole’s disappearance. There is
no citation to the record regarding this report, no indication defendant ever
brought it to the court’s attention or sought its admission under any theory. We
disregard the reference.
31
For the first time on appeal, defendant asserts that the trial court’s
evidentiary rulings respecting third party culpability evidence and evidence of his
1988 suicide attempt violated his federal constitutional rights to a fair trial,
reasonable access to the courts, effective assistance of counsel, reliable guilt and
penalty determinations, and due process and equal protection of the laws as
required by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United
States Constitution. Assuming, without deciding, that defendant’s offers of proof
preserved these claims (see People v. Yeoman, supra, 31 Cal.4th at pp. 117, 133),
(Fn. cont. on next page)
105
2. Limitations on Attack on Police Investigation
Defendant contends the trial court improperly limited his cross-examination
of certain witnesses with which he hoped to show that the police had failed to
consider other suspects. Defendant first complains that the trial court erroneously
sustained the prosecution’s objections to his attempts to question Ahmad Seihoon
at the suppression motion about what Seihoon said to police when they
interviewed him the day after Nicole’s disappearance. Seihoon was questioned in
connection with defendant’s Franks challenge to the search warrant. (Franks v.
Delaware, supra, 438 U.S. 154.) The trial court sustained the prosecution’s
objection that the content of Seihoon’s interview with police was irrelevant for
purposes of his Franks challenge and constituted an improper attempt at
discovery.
The trial court’s ruling was correct in the context of defendant’s Franks
motion. Other than speculating Seihoon may have said something to the police
that they omitted from the affidavit, defendant failed to establish the relevance of
the content of Seihoon’s interview vis-à-vis his Franks claim. (People v.
Bradford, supra, 15 Cal.4th at p. 1297 [“A defendant who challenges a search
warrant based upon an affidavit containing omissions bears the burden of showing
that the omissions were material to the determination of probable cause”].) It was
therefore properly excluded.
Next, defendant recycles his claim that the trial court erred in limiting his
cross-examination of Detective Price regarding the three men in the van. Since, as
(Fn. continued from previous page)
because we conclude the trial court’s rulings were correct, the constitutional
claims fail.
106
we have concluded, there was insufficient evidence to connect these unknown men
to the crime for third party culpability purposes, whether or not Detective Price
ascertained their identities was irrelevant and the trial court properly sustained the
prosecution’s objection on both relevance and Evidence Code section 352
grounds.
For the same reason, we reject defendant’s claim that the trial court
improperly limited his cross-examination of Detective Price regarding two
potential witnesses, Heather Williams and Harold Dachs, Jr. In his offer of proof,
defense counsel claimed Williams and Dachs told police they had observed
“individuals outside the [defendant’s] apartment” who fit “some of the statements
that Mr. Panah has said to have made about other individuals being involved in
this . . . .” In response to the trial court’s inquiry about whether they were going to
appear as witnesses, defense counsel asserted that the police had failed to keep
track of them, rendering them unavailable. The trial court sustained the
prosecution’s relevance objection. We perceive no error. As with the men in the
van, the offer of proof as to Williams and Dachs was grossly inadequate to support
the admission of the evidence as third party culpability evidence and was therefore
properly excluded as irrelevant.
Finally, defendant claims the trial court improperly restricted his cross-
examination of Detective Price regarding whether Price had examined for
fingerprints the suitcase in which Nicole’s body was found. Defense counsel first
asked Price if he had had the suitcase fingerprinted, to which Price answered in the
negative. He then asked whether he “cause[d] any part of it to be fingerprinted?”
Again, Detective Price answered no. Defense counsel then asked, “[t]he outside?”
At that point the prosecutor objected on the grounds the question had been asked
and answered. The court sustained the objection. The trial court’s ruling was
proper; the question was clearly repetitive. (People v. Kronmeyer (1987) 189
107
Cal.App.3d 314, 352 [“The control of cross-examination is within the discretion of
the trial court, permitting it to curtail cross-examination relating to matters already
covered or irrelevant”].)
Because we reject defendant’s claim that the trial court’s restrictions on the
cross-examination of these witnesses deprived him of the opportunity to present a
defense by attacking the police investigation, we also conclude that the trial court
did not abuse its discretion when it denied his motion for mistrial on this ground.32
M. Instructional Error
1. CALJIC No. 3.32
Defendant contends the trial court erred when it denied his request to
instruct the jury with CALJIC No. 3.32.33 We disagree.
A trial court is required to give a requested instruction on a defense only if
substantial evidence supports the defense. (In re Christian S. (1994) 7 Cal.4th
768, 783.) The sole evidence in support of defendant’s request was the testimony
32
For the first time on appeal, defendant asserts the trial court’s exclusion of
evidence regarding the police investigation violated various federal constitutional
rights. Again, assuming, without deciding, that his offers of proof preserved these
claims (People v. Yeoman, supra, 31 Cal.4th at pp. 117, 133), because we
conclude the trial court’s rulings were correct, the constitutional claims fail.
33
The 1995 version of the instruction stated: “Evidence has been received
regarding a [mental disease] [mental defect] [or] [mental disorder] of the
defendant [____(insert name of defendant if more than one)____] at the time of
the commission of the crime charged [namely, ____________________] [in
Count[s] __________][.] [or a lesser crime thereto, namely
____________________]. You may consider this evidence solely for the purpose
of determining whether the defendant [____(insert name of defendant if more than
one)____] actually formed [the required specific intent,] [premeditated,
deliberated] [or] [harbored malice aforethought] which is an element of the crime
charged [in Count[s] __________], to wit, ____________________[.] [or the
lesser crime[s] of ____________________].”
108
of Dr. Palmer, the emergency physician who treated him the day after Nicole’s
disappearance. Palmer testified that defendant was psychotic, agitated, and
delusional when he examined him and that a toxicological screen revealed the
presence of tetrahydrocannabinol, the active ingredient of marijuana, and
benzodiazepine, which belongs to a class of drugs used as a mild tranquilizer.34
He testified further that defendant was having visual and auditory hallucinations,
acting inappropriately, and had self-inflicted slashes on his wrists. But these
observations were made more than 24 hours after Nicole’s disappearance. In the
interim, defendant had spoken to Nicole’s father and offered to help him look for
Nicole and had gone to work where he had interacted with two supervisors, Adele
Bowen and Bruce Cousins, both of whom testified that defendant did not appear to
be under the influence of any substance.
At best, Palmer’s equivocal testimony established that defendant may have
suffered from long-standing latent psychosis and, at some point, his condition
deteriorated. This does not constitute evidence of defendant’s mental state at the
time of the commission of the crime. We conclude that this evidence was not
sufficient to require the instruction.
2. Manslaughter Instructions
Defendant contends the trial court erred by rejecting his request to instruct
the jury regarding voluntary and involuntary manslaughter as lesser-included
offenses of murder. Defendant also based this request on Dr. Palmer’s testimony,
34
Defendant draws no distinction between Palmer’s testimony regarding
defendant’s mental state and defendant’s voluntary ingestion of drugs, but the
latter would not have supported an instruction based on CALJIC No. 3.22 and
defendant did not request a voluntary intoxication instruction. (See CALJIC No.
4.21.)
109
arguing, under People v. Saille (1991) 54 Cal.3d 1103, that Palmer’s testimony
constituted evidence of voluntary intoxication and mental illness so as to negate
specific intent. The trial court rejected the request, observing, “[t]here is no
evidence whatever in this case of any form of intoxication at the time of the
murder, and there is no evidence whatever of any form of mental illness or disease
at the time of the murder.”
Based on our analysis of Dr. Palmer’s testimony in the preceding part, we
agree with the trial court that there was no substantial evidence of mental disease
or voluntary intoxication at the time of the commission of the offenses, and,
therefore, conclude it properly rejected the request for an involuntary
manslaughter instruction. (See, e.g., People v. Ochoa, supra, 19 Cal.4th at
pp. 423-424.)35 As for the instruction on voluntary manslaughter, defendant
points to no evidence that would have supported such instruction based either on a
theory of heat of passion or imperfect self-defense. (People v. Barton (1995) 12
Cal.4th 186, 199.)
3. Defense Pinpoint Instructions
Defendant contends the trial court erred when it rejected two defense
pinpoint instructions, denominated Defense Special Instruction No. 3 (Instruction
No. 3) and Defense Special Instruction No. 4 (Instruction No. 4.) Instruction
No. 3 stated: “There is evidence from which you may infer that the decedent was
not alive at the time of the sodomy. This evidence includes the testimony of Dr.
35
In his reply brief, defendant argues that if the evidence of intoxication was
insufficient to support an involuntary manslaughter instruction, this was because
the trial court prevented him from questioning Rauni Campbell about whether she
and defendant had used marijuana. We have already concluded that the trial
court’s ruling was correct. (See pp. 99-100, ante.)
110
Heuser concerning the failure of the anal sphincter to constrict. [¶] If you find
from the evidence that it was reasonably possible that decedent was dead at the
time of the sodomy, you must find the special circumstance to be not true, even
though there may be evidence that the deceased was alive. [¶] In order to find the
special circumstance of sodomy to be true, you must find that the only reasonable
interpretation of the evidence was that the deceased was alive, and this must be
proved beyond a reasonable doubt.”
The first paragraph of Instruction No. 4 stated: “In considering whether the
prosecution has failed to meet its burden of proving sodomy beyond a reasonable
doubt, you may consider the testimony of Mr. Moore that he could not conclude
that any semen was present in the anal region.” There was a second paragraph,
not reproduced in the record but which the trial court described as being “about the
testimony of Dr. Heuser, that the penetration could have been by another object.”
“A trial court must instruct on the law applicable to the facts of the case.
[Citation.] In addition, a defendant has a right to an instruction that pinpoints the
theory of the defense. [Citation.] The court must, however, refuse an
argumentative instruction, that is, an instruction ‘of such a character as to invite
the jury to draw inferences favorable to one of the parties from specified items of
evidence.’ ” (People v. Mincey (1992) 2 Cal.4th 408, 437.)
The first paragraph of Instruction No. 3 is no more than an assertion that
the victim was dead at the time of the act of sodomy, supported by a fragment of
the coroner’s testimony. Similarly, the first paragraph of Instruction No. 4 argues,
in essence, that because the serologist testified semen was absent from the victim’s
“anal region,” the prosecution failed to prove its case beyond a reasonable doubt.
111
The trial court properly rejected these portions of the special instructions as
argumentative.36
A trial court is not required to give pinpoint instructions that merely
duplicate other instructions. (People v. Bolden, supra, 29 Cal.4th at p. 558.) The
second paragraph of Instruction No. 3 directed the jury to find the sodomy special
circumstance not true if it found it was “reasonably possible” the decedent was
dead at the time the act of sodomy was committed, notwithstanding evidence she
was alive. The third paragraph of Instruction No. 3, in essence, required the jury
to find the victim was alive beyond a reasonable doubt before it found the sodomy
special circumstance true. Both proposed instructions were duplicative of the
other instructions given, including, among others, the reasonable doubt instruction
(CALJIC No. 2.90) and defendant’s Special Instruction No. 1 (Instruction No. 1).
This instruction informed the jury that, to find the sodomy special circumstance
true, it must find the victim was alive when sodomy was committed. Also
apparently duplicative was the second paragraph of Instruction No. 4, the intention
of which appears to have been to instruct the jury that penetration with a foreign
object did not constitute sodomy, a subject already covered in defendant’s
Instruction No. 1, which stated, in part, “If you find that penetration of the anus in
36
Furthermore, as the Attorney General points out, the instruction
mischaracterized the testimony of both Dr. Heuser and serologist Moore. Dr.
Heuser testified the anal opening was very relaxed, the circumference of the anus
had a bruised appearance, and that there was tearing of the anus toward the vagina
and there was bleeding. She testified these injuries were consistent with the
insertion of a male penis, or a similar object, into the victim’s anus. She also
testified the bruising around the anus occurred before death and that sodomy was a
possible cause of death. Moore testified that the anal swab produced a positive
acid phosphatase result indicative of the presence of semen, but was inconclusive,
not that there was no semen in the victim’s anus.
112
this case was with a foreign object, you may not find the sodomy special
circumstance to be true,” and in the reasonable doubt instruction.
We find, therefore, that the trial court correctly rejected defendant’s
proposed instructions.
N. Sufficiency of Lewd Conduct Special Circumstance Evidence
Defendant contends there was insufficient evidence to support the lewd
conduct special circumstance finding.37 We disagree.
“In considering a claim of insufficiency of evidence, a reviewing court
must determine ‘whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.’ [Citations.] Where, as here, the jury’s
findings rest to some degree upon circumstantial evidence, we must decide
whether the circumstances reasonably justify those findings, ‘but our opinion that
37
Defendant asserts he sought dismissal of the lewd conduct special
circumstance in the trial court on grounds of insufficient evidence, but the portion
of the record to which he directs us does not support this claim. Rather, the record
reveals that he sought dismissal of the special circumstance because it included
conduct, like penetration with a foreign object, that, unlike rape or sodomy, the
Legislature had determined was not sufficiently egregious to warrant a special
circumstance unto itself. To the extent his attack on the sufficiency of the
evidence here is a renewal of this argument, we reject it. Defendant’s criticism of
the lewd conduct special circumstance fails to take into account the well-
established purpose of section 288, “to provide children with ‘special protection’
from sexual exploitation. [Citation.] The statute recognizes that children are
‘uniquely susceptible’ to such abuse as a result of their dependence upon adults,
smaller size, and relative naiveté. [Citation.] The statute also assumes that young
victims suffer profound harm whenever they are perceived and used as objects of
sexual desire. [Citation.] It seems clear that such concerns cannot be satisfied
unless the kinds of sexual misconduct that result in criminal liability are greatly
expanded where children are concerned.” (People v. Martinez (1995) 11 Cal.4th
434, 443-444.)
113
the circumstances also might reasonably be reconciled with a contrary finding’
does not render the evidence insubstantial.” (People v. Earp (1999) 20 Cal.4th
826, 887-888, quoting People v. Proctor (1992) 4 Cal.4th 499, 528-529.)
Additionally, “[a]n appellate court must accept logical inferences that the jury
might have drawn from the circumstantial evidence.” (People v. Maury (2003) 30
Cal.4th 342, 396.) Moreover, an appellate court “resolve[s] neither credibility
issues nor evidentiary conflicts; we look for substantial evidence.” (Id. at p. 403.)
Section 288 “is violated by ‘any touching’ of an underage child committed
with the intent to sexually arouse either the defendant or the child.” (People v.
Martinez, supra, 11 Cal.4th at p. 442.) Defendant argues the evidence was
insufficient (1) to establish that Nicole was alive during the commission of the
lewd conduct and (2) to prove his intent.
Dr. Heuser testified, in essence, that the bruising she observed on Nicole’s
body indicated her heart was still pumping blood when she sustained those
injuries. Thus she concluded the bruises to Nicole’s face, neck, arms, and legs
occurred while Nicole was alive, as did the bruising she observed around Nicole’s
vaginal area and rectum. Indeed, she concluded the penetration of Nicole’s rectum
was a possible cause of death. Accordingly, substantial evidence established that
Nicole was alive during the commission of the offense.
Substantial evidence also establishes defendant’s sexual intent, based on all
the circumstances surrounding the commission of the offense. (People v.
Martinez, supra, 11 Cal.4th at p. 445.) First, Nicole’s body was found in the nude.
Second, the evidence firmly established that her rectum had been penetrated.
Third, her vaginal opening was very widely open and bruised, which suggested
stretching consisting with the penetration of the area with a finger. Fourth, there
was body fluid evidence from which the jury could have inferred that defendant
ejaculated in Nicole’s presence. The conclusions to be drawn from this evidence,
114
and the reasonable inferences therefrom, viewed in the light most favorable to the
judgment are plain: defendant disrobed Nicole, or caused her to disrobe,
penetrated her vaginally and anally, and ejaculated. This clearly established lewd
conduct.
Defendant attempts to parse the evidence as narrowly as possible, resisting
all reasonable inferences that could be drawn from the testimony of the coroner
and the serologist, and citing such portions of their testimony that support his
argument. In doing so, defendant simply ignores the substantial evidence rule.
Properly applied to the evidence in this case, the evidence is more than sufficient
to support the lewd conduct special circumstance.
O. Denial of New Trial Motion
1. Sufficiency of Evidence of Oral Copulation
Defendant argues that his conviction of oral copulation was not supported
by substantial evidence and the trial court erred when it denied his new trial
motion on this ground. He asserts that the insufficiency of the evidence is
demonstrated by the jury’s failure to find true the oral copulation special
circumstance.
Defendant was charged with violation of section 288, subdivision (c), oral
copulation of a person under 14 and more than 10 years younger than the
perpetrator. “ ‘Oral copulation’ is the act of copulating the mouth of one person
with the sexual organ or anus of another person. [¶] Any contact, however slight,
between the mouth of one person and the sexual organ or anus of another person
constitutes ‘oral copulation.’ Penetration of the mouth, sexual organ or anus is not
required. Proof of ejaculation is not required. [¶] In order to prove this crime,
each of the following elements must be proved: [¶] 1. A person engaged in an act
of oral copulation with an alleged victim; and [¶] 2. The alleged victim was under
115
the age of 14 and more than 10 years younger than the other participant.”
(CALJIC No. 10.46, brackets omitted.)
Defendant does not dispute that the age differential element was proved but
claims the evidence was insufficient to prove an act of oral copulation occurred.
Serologist Moore’s analysis of a tissue paper found in the wastebasket of
defendant’s bathroom revealed semen stains consistent with defendant and high
amylase activity indicative of saliva consistent with Nicole. Moore testified that
the stains were consistent with the product of oral copulation. Semen and saliva
stains found on defendant’s bed sheet, which Moore testified could also have
originated from defendant and Nicole, in a pattern that indicated spewing, also
supported Moore’s conclusion. This evidence was sufficient to support
defendant’s conviction. (People v. Scott (1978) 21 Cal.3d 284, 296 [“The
uncorroborated testimony of a single witness is sufficient to sustain a conviction,
unless the testimony is physically impossible or inherently improbable”].) His
citation of conflicting evidence is of no avail. (People v. Maury, supra, 30 Cal.4th
at p. 403 [on review of a sufficiency claim, the reviewing court “resolve[s] neither
credibility issues nor evidentiary conflicts; we look for substantial evidence”].)
Regarding defendant’s claim of inconsistent verdicts, first, as the trial court
noted, the verdicts are not necessarily inconsistent. The jury could have found
that, while an act of oral copulation occurred, the murder was not committed
during the commission of that act (§ 190.2, subd. (a)(17)(F)), and could have
convicted him of the substantive oral copulation count while finding the oral
copulation special circumstances not to be true. In any event, any inconsistency in
the verdicts does not require reversal of the oral copulation conviction. “It is . . .
settled that an inherently inconsistent verdict is allowed to stand; if an acquittal of
one count is factually irreconcilable with a conviction on another, or if a not true
finding of an enhancement allegation is inconsistent with a conviction of a
116
substantive offense, effect is given to both.” (People v. Santamaria (1994) 8
Cal.4th 903, 911.)
2. Remaining Issues on Motion for New Trial
Defendant contends the trial court abused its discretion by denying his
motion for a new trial. Defendant’s motion advanced 12 claims.38 Here, he
confines his argument to four grounds: (1) the removal of Shafi-Nia and
appointment of William Chais violated his right to effective assistance of counsel;
(2) the trial court erroneously denied his venue motions; (3) the trial court
erroneously declined to give certain defense penalty instructions regarding
defendant’s offenses as a factor in aggravation and on the burden of proof on the
grounds that the instructions it gave were adequate; and (4) a new trial was
justified by erroneous trial court rulings including (a) denial to the defense of
access to Rauni Campbell, (b) the trial court’s refusal to give an advance ruling on
the scope of cross-examination of defendant at the sanity phase, (c) the exclusion
of the “Sean” tape, and (d) the trial court’s refusal to exclude the coroner’s report
as a sanction for the prosecution’s alleged violation of discovery. Defendant has
presented most of these claims on appeal, independent of his new trial claim, and
we have found them to be without merit and rejected them. We also reject his
claim that the trial court abused its discretion in denying his new trial motion on
38
The complete grounds include (1) insufficiency of the evidence; (2)
unlawful search and seizure; (3) improper removal of Shafi-Nia; (4) replacement
of Shafi-Nia with unqualified counsel; (5) denial of motions for change of venue;
(6) prejudicial trial atmosphere; (7) bias of the judge and bailiffs against defendant
and his supporters; (8) confusing and erroneous instructions; (9) denial of access
to Rauni Campbell; (10) coerced withdrawal of defendant’s insanity plea; (11)
exclusion of the “Sean” audiotape; and (12) discovery violation regarding Dr.
Heuser’s report.
117
these grounds. Defendant’s remaining claims are merely enumerated without
further argument or citation to authority and for this reason we reject them.
(People v. Ashmus (1991) 54 Cal.3d 932, 985, fn. 15.)
III. DISCUSSION: PENALTY PHASE ISSUES
A. Evidentiary Claims
1. Reference to a Menendez Brother
Defendant contends that his right to counsel was violated because the
defense expert, Dr. Vicary, revealed during recross-examination that defendant
had spoken to one of the Menendez brothers, prior to taking several psychological
tests that Vicary testified defendant had answered in such a manner as to create the
impression he was mentally ill. Defendant objected when the prosecutor asked if
one of the people defendant might have spoken to prior to taking the tests was one
of the Menendez brothers. Outside the presence of the jury, defense counsel
moved for a mistrial on the grounds it was “improper” for the prosecutor to
suggest defendant was “receiving advice from one of the Menendez brothers.” In
the course of the discussion, the prosecutor said that Vicary had mentioned
defendant had talked to the Menendez brother “off the cuff.” The trial court found
the question was fair and denied the mistrial but told the prosecutor “there’s going
to be no additional questioning on that.” There was no further reference to the
subject.
Defendant contends that Dr. Vicary violated his Sixth Amendment right to
counsel by revealing to the prosecutor that defendant told Vicary he had talked to
one of the Menendez brothers.
Defendant failed to object on this ground in the trial court, where he only
objected to defendant being associated with one of the Menendez brothers. His
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claim, therefore, is forfeited. (People v. Williams, supra, 16 Cal.4th at p. 250
[constitutional objection to admission of evidence forfeited if not raised below].)
In any event, admission of defendant’s statement to Vicary was relevant to
the latter’s assessment of defendant’s mental state, which defendant himself
tendered as an issue at the penalty phase, and its admission did not violate either
his Fifth or Sixth Amendment rights. (People v. McPeters (1992) 2 Cal.4th 1148,
1190.) The prosecutor had established from Dr. Vicary that defendant had
answered questions on the psychological tests so as to suggest he was mentally ill;
that he may have sought advice from other inmates on how to do so was clearly
relevant to the assessment of his mental state, and any such information he
provided to Vicary was not privileged.
Even if the prosecutor’s bare reference to one of the Menendez brothers
was improper, the trial court did not abuse its discretion in denying defendant’s
mistrial motion. (People v. Burgener, supra, 29 Cal.4th at p. 873 [mistrial should
be granted only when a party’s chances of receiving a fair trial have been
irreparably damaged].) For the same reason, even assuming the reference was
improper, there is no reasonable possibility the jury would have rendered a
different verdict in the penalty phase absent the error. (People v. Brown (1988) 46
Cal.3d 432, 448.)
2. Admission of Evidence of Hit-and-run Conviction
On direct examination, Dr. Vicary testified that defendant had no prior
criminal record as a juvenile or an adult. On cross-examination, he acknowledged
that defendant’s criminal history included a hit-and-run arrest. Subsequently, at
defendant’s request, the jury was instructed that defendant’s conviction of
misdemeanor hit and run was received in connection with Dr. Vicary’s opinion of
defendant’s mental state and could be only be considered “in assessing what
119
weight you choose to give Dr. Vicary’s opinion. [¶] This misdemeanor is not
violent criminal activity which can constitute an aggravating factor.”
Defendant contends that admission of this evidence amounted to improper
impeachment. Alternatively, he contends the evidence should have been excluded
pursuant to Evidence Code section 352. We do not agree.
The evidence was admitted to impeach Dr. Vicary’s testimony that
defendant had no juvenile or adult convictions, to the extent that this conclusion
reflected upon Dr. Vicary’s opinion of defendant’s mental state. As such, it was
properly admitted. (People v. Hendricks (1988) 44 Cal.3d 635, 642 [“Other
crimes evidence may be used to impeach the testimony of an expert witness”].)
Furthermore, any possibility the jury might have misunderstood the purpose of this
evidence was obviated by the limiting instruction, which we presume the jury
understood and followed. (People v. Harris, supra, 9 Cal.4th at p. 426.)
Defendant’s Evidence Code section 352 claim is forfeited by his failure to have
made this objection but even if he had, we would find no abuse of the trial court’s
considerable discretion in admitting the evidence. (See People v. Gionis (1995) 9
Cal.4th 1196, 1214.)
3. Improper Impeachment of Victoria Eckstone
Defendant’s witness Victoria Eckstone testified that she believed defendant
was the father of her child and she wanted her child to continue to have a
relationship with defendant even if he was incarcerated. In rebuttal, a Burbank
police detective, Kevin Krafft, testified that Eckstone had told him the father of
her child was William Boorstin, whom she described as her “common law
husband” of 10 years. Detective Krafft also testified he had obtained a birth
certificate for the child listing Boorstin as the father. Additionally, Deputy Sheriff
Brent Rollins testified that Eckstone told him defendant was the father of her child
120
but that the name of the father’s child was not on the birth certificate, and that the
child would never see her father again.
Defendant argues the testimony of Detective Krafft and Deputy Sheriff
Rollins should have been excluded under Evidence Code section 352 because it
was more prejudicial than probative and could have confused the jury and resulted
in an undue consumption of time. Defendant also argues that, even if Detective
Krafft’s testimony was proper impeachment because it was inconsistent with
Eckstone’s testimony, Deputy Sheriff Rollins’s testimony was not. Finally, he
argued that the trial court erred in denying his request to order a blood test to
determine the child’s paternity.
The underlying issue presented to the trial court was Eckstone’s credibility,
not the actual paternity of her child. Thus, the fact that she told Detective Krafft
another man was the father of her child and put his name on the birth certificate
was not only inconsistent with her testimony that she believed defendant was the
child’s father, but even more deeply inconsistent with her assertion that a parental
bond existed between defendant and her child that she wished to maintain and
perpetuate. Similarly, her statement to Deputy Sheriff Rollins that defendant
would never see the child also undercut this testimony. Thus, their testimony was
proper impeachment testimony. (People v. Price (1991) 1 Cal.4th 324, 474; Evid.
Code, § 780, subds. (g), (h).)
Nor did the trial court abuse its discretion in concluding the evidence was
more probative than prejudicial. In light of the relatively brief testimony of
Detective Krafft and Deputy Sheriff Rollins, defendant’s concern that the evidence
would have led to a minitrial on the issue of Eckstone’s credibility, causing an
undue consumption of time or confusion of the issues, obviously did not
materialize.
121
Finally, because the actual paternity of the child was not at issue, the trial
court did not abuse its discretion in denying defendant’s request for a paternity
test.39
4. Victim Impact Testimony
Defendant contends the victim impact testimony by Nicole’s parents and
brothers was cumulative, unsubstantiated and prejudicial.40 He asserts further that
fleeting references by two of the witnesses to the victim’s having been “abducted”
and “kidnapped” were prejudicial because the trial court had previously dismissed
kidnapping charges and kidnapping special circumstances for insufficient
evidence. Finally, he contends that statements made by the victim’s mother to the
press urging that defendant be sentenced to death violated rules regulating victim
impact evidence.
39
Defendant asserts on appeal that the trial court’s denial of his request for a
paternity test violated his federal constitutional rights to due process, a fair trial,
and a reliable penalty determination as required by the Fifth, Sixth, Eighth and
Fourteenth Amendments to the United States Constitution. Assuming, without
deciding, that defendant’s offer of proof preserved these claims (see People v.
Yeoman, supra, 31 Cal.4th at pp. 117, 133), because we conclude the trial court’s
ruling was correct, the constitutional claims fail.
40
Defendant objected to the proposed testimony of the victim’s father on
Sixth and Fourteenth Amendment grounds. In response, the trial court ruled that
the victim’s family members could testify only to “new matters that haven’t been
covered as we get to other witnesses.” Defendant asserts that the trial court failed
to follow its own ruling, permitting cumulative testimony which, as a result,
violated his federal constitutional rights to fair penalty trial, his confrontation
rights, and rights to due process and equal protection as required by the Fifth,
Sixth, Eighth and Fourteenth Amendments. Assuming, without deciding, that his
initial objection below preserved these claims (People v. Yeoman, supra, 31
Cal.4th at pp. 117, 133), because we find no error in the admission of the victim
impact evidence, defendant’s constitutional claims fail.
122
In Payne v. Tennessee (1991) 501 U.S. 808, the United States Supreme
Court overruled earlier cases finding a federal constitutional proscription against
victim impact evidence and argument. The high court concluded: “A State may
legitimately conclude that evidence about the victim and about the impact of the
murder on the victim’s family is relevant to the jury’s decision as to whether or
not the death penalty should be imposed.” (Id. at p. 827.) “Moreover, after Payne
was decided, we concluded that the immediate injurious impact of a capital
murder is a ‘circumstance of the crime’ (§ 190.3, factor (a)) which may be
introduced and argued in aggravation under state law. [Citation.]” (People v.
Montiel (1993) 5 Cal.4th 877, 935; People v. Edwards (1991) 54 Cal.3d 787, 835
[factor (a) of section 190.3 “allows evidence and argument on the specific harm
caused by the defendant, including the impact on the family of the victim”].)
In Edwards, we stated that our holding “only encompasses evidence that
logically shows the harm caused by the defendant.” (People v. Edwards, supra, 54
Cal.3d at p. 835.) We said the trial court should weigh the probative value of the
victim impact evidence against the prejudicial effect. “ ‘On the one hand, it
should allow evidence and argument on emotional though relevant subjects that
could provide legitimate reasons to sway the jury to show mercy or to impose the
ultimate sanction. On the other hand, irrelevant information or inflammatory
rhetoric that diverts the jury’s attention from its proper role or invokes an
irrational, purely subjective response should be curtailed.’ ” (Id. at p. 836, quoting
People v. Haskett (1982) 30 Cal.3d 841, 864.)
Defendant contends that testimony the victim’s 16-year-old brother, Chad,
had faltered in school and began to use drugs following his sister’s death was
improper because there was no connection between her death and his drug use.
He also complains that, because the family’s members testified about the impact
123
of Nicole’s death on one another, that the evidence was cumulative and
prejudicial.
The victim’s father testified that, prior to Nicole’s death, Chad was the
family athlete, and was a “4.0 student,” but, following her death, his grades
deteriorated, “he is drinking a lot and doing drugs,” and would not talk about his
sister but “kept it all inside himself,” and refused to go to counseling. Chad’s
brother, 18-year-old Travis, also testified that Chad was doing worse in school,
was not playing sports and stated his belief that Chad “is into drugs and alcohol
because of it.” We conclude that these brief references to Chad’s use of drugs and
alcohol were neither irrelevant nor prejudicial but, in context, depicted the
“residual and lasting impact” he “continued to experience” as a result of Nicole’s
murder. (People v. Brown, supra, 33 Cal.4th at p. 398.) Furthermore, the jury
was specifically instructed that in assessing victim impact evidence it could
“consider only such harm as was directly caused by defendant’s act.” In these
circumstances, we conclude there was no error in the admission of this evidence.
Even if it was error, given the brevity of the testimony, we would find any such
error harmless.
Defendant also contends the victim impact evidence was cumulative
because “the jury heard three times that Travis Parker . . . considered suicide,
twice that Chad Parker may have been involved in drugs and alcohol, three times
that he was having trouble in school, and twice that Casey Parker, youngest
brother of the deceased, was having nightmares.” We disagree. There is no
requirement that family members confine their testimony about the impact of the
victim’s death to themselves, omitting mention of other family members.
Moreover, in this case the references were brief. Accordingly, we reject
defendant’s claim that the testimony was unduly repetitious or prejudicial.
124
Defendant next contends that Mr. Parker’s reference to Nicole as having
been “abducted” and Chad Parker’s use of the term “kidnapped” were improper
because the trial court had dismissed kidnapping counts and kidnapping special
circumstances for insufficiency of the evidence. Defendant failed to object to
either reference, thus his claim is waived. (Evid. Code, § 353.) In any event his
claim is without merit. The witnesses’ use of these terms was clearly colloquial,
not legal. Moreover, the references occurred only once. In light of these
circumstances, we reject defendant’s assertion that the terms could have had any
prejudicial impact on the jury.
Finally, defendant contends that statements the victim’s mother made in a
television interview calling for defendant’s death violated victim impact evidence
rules. These statements were not part of her victim impact testimony nor, as we
have previously observed, is there anything in the record to support defendant’s
allegations that any of the jurors were exposed to her remarks. Therefore, we
reject the claim.
5. Cumulative Prejudice
Defendant contends the cumulative effect of the trial court’s erroneous
evidentiary rulings during the penalty phase require reversal. As we have rejected
his claims of error, necessarily he suffered neither individual nor cumulative
prejudice from them. (People v. Bolden, supra, 29 Cal.4th at pp. 567-568.)
B. Davenport Error
A prosecutor may not argue that lack of evidence of a mitigating factor may
be considered by the jury as a factor in aggravation. (People v. Davenport (1985)
41 Cal.3d 247, 289-290.) While conceding “the prosecutor did not specifically
state that a lack of mitigating circumstance was an aggravating factor,” defendant
125
nonetheless claims the prosecutor implied as much. He contends the trial court
abused its discretion when it denied his motion for mistrial on this ground.
In the brief passage of the prosecutor’s closing argument that defendant
cites, the prosecutor observed there was no evidence of consent by the victim
(§ 190.3, factor (e)), nor that the offenses had been committed under
circumstances defendant reasonably believed to be a moral justification or
extenuation for his conduct (§ 190.3, factor (f)), nor that he acted under extreme
duress or under the substantial domination of another person (§ 190.3, factor (g).)
The prosecutor concluded: “No evidence of that. What you have is one person
solely involved in the crime. And that’s Mr. Panah.” The prosecutor then
reviewed in some detail the circumstances of the crime (§ 190.3, factor (a)), at the
end of which he stated, “[t]hese are all factors in aggravation.”
Defendant claims this last statement implied to the jurors that the absence
of any evidence to support the factors in mitigation to which the prosecutor had
earlier referred converted them into factors in aggravation. Our review of the
prosecutor’s argument belies this claim. In context, it is clear he was referring to
evidence pertaining to section 190.3, factor (a) only, notwithstanding his reference
to “factors.” His discussion of the lack of evidentiary support for the factors in
mitigation was entirely proper. (People v. Dyer (1988) 45 Cal.3d 26, 83.) The
trial court properly denied defendant’s mistrial motion. Necessarily, then, we also
reject defendant’s claim that the prosecutor’s conduct and the trial court’s denial
of defendant’s mistrial motion violated his federal constitutional rights to due
process, equal protection, a fair trial and a reliable penalty determination.
C. Instructional Error
Defendant contends the trial court erred when it denied or modified his
proposed instructions. We find no error.
126
Defendant contends the trial court erred when it declined to instruct the jury
as follows: “A juror properly may reject death as a penalty solely to grant mercy
to a defendant.” Not so. (People v. Lewis (2001) 26 Cal.4th 334, 393 [defendant
is not entitled to a pure “mercy” instruction]; People v. Bolin, supra, 18 Cal.4th at
p. 344.) In Bolin, “the trial court gave the standard instruction to take into account
‘any other circumstance which extenuates the gravity of the crime even though it
is not a legal excuse for the crime and any sympathetic or other aspect of the
defendant’s character or record that the defendant offers as a basis for a sentence
less than death, whether or not related to the offense for which he is on trial.’ The
court also told the jury ‘to assign whatever moral or sympathetic value you deem
appropriate to each and all of the various factors you are permitted to consider.’
No additional instruction was required.” (Ibid.) Substantially the same
instructions were given here.
Next, defendant contends the trial court erred when it denied his request to
instruct the jury it could reject the death penalty if it had a “lingering doubt” about
his guilt, though the court allowed the defense to argue the point. We have
previously rejected this argument on the grounds that such instruction is not
necessary because there is no requirement for it under either state or federal law
(People v. Lawley (2002) 27 Cal.4th 102, 166), and the lingering doubt concept is
sufficiently encompassed in other instructions ordinarily given in capital cases.
(People v. Hines (1997) 15 Cal.4th 997, 1068.) On the same grounds, we reject
defendant’s claim.
Defendant argues that the trial court improperly modified the following
instruction with the addition of the italicized words: “The permissible aggravating
factors are limited to those circumstances in aggravation upon which you have
been specifically instructed. Therefore, evidence which has been presented
regarding the defendant’s background, if proven, may be considered by you only
127
as mitigating evidence.” The trial court justified the addition of the phrase “if
proven,” because it made the instruction less argumentative. Defendant contends
that the phrase erroneously implied the jury was required to find the mitigating
circumstance had to be proven beyond a reasonable doubt. We disagree. Nothing
in the phrase itself implies that the reasonable doubt standard, or any particular
standard applies. Defendant’s assertion that, because the reasonable doubt
standard was used in the guilt phase, the jury likely applied it in the penalty phase
is speculative. Furthermore, the jury was instructed, at defendant’s request, that
“[a] juror may find that a mitigating circumstance exists if there is any evidence to
support it no matter how weak the evidence may be.” (Emphasis added.) We
conclude, therefore, that the jury was not misled by the trial court’s modification
of defendant’s instruction.
Finally, defendant advances two arguments regarding the burden of proof.
The trial court instructed the jury that “[t]o return a judgment of death, each of you
must be persuaded that the aggravating circumstances are so substantial in
comparison with the mitigating circumstances that it warrants death instead of life
without the possibility of parole.” In addition, the jury was instructed that the
determination of the appropriate penalty was not a mechanical counting process,
but required the evaluation of the moral weight of all the evidence, aggravating
and mitigating; that, to impose the death penalty instead of life without possibility
of parole, each juror must be personally persuaded that the balance of aggravation
over mitigation justified the punishment; and that each “juror may find that a
mitigating circumstance exists if there is any evidence to support it no matter how
weak the evidence may be.” Defendant nonetheless argues that the trial court’s
failure to instruct the jury it could not return a judgment of death unless it found
that the aggravating factors “outweighed” the factors in mitigation requires
reversal. He makes the further global claim that the trial court’s failure to provide
128
a burden of proof instruction failed to give the jury adequate guidance. We
disagree. “[W]e have consistently held that instructions similar to those given in
this case adequately explain the jury’s sentencing responsibilities and are not
impermissibly vague.” (People v. Anderson (2001) 25 Cal.4th 543, 600.)
In light of our rejection of defendant’s claims of instructional error, we
necessarily reject his further assertion that the cumulative effect of instructional
error violated his federal constitutional rights to due process, equal protection, a
fair trial, and a reliable penalty determination.
D. Constitutional Challenges to the Death Penalty Statute
Defendant raises a number of challenges to the death penalty statute that we
have considered and consistently rejected in previous decisions. He provides no
persuasive reason for us to reexamine those conclusions. We again conclude
therefore that: (1) the statute adequately narrows the class of death-eligible
offenders (People v. Griffin (2004) 33 Cal.4th 536, 596; People v. Prieto (2003)
30 Cal.4th 226, 276; People v. Barnett, supra, 17 Cal.4th at p. 1179); (2) section
190.3, factor (a) is not impermissibly overbroad facially or as applied (People v.
Brown (2004) 33 Cal.4th 382, 401; see Tuilapea v. California (1994) 512 U.S.
967, 987-988); (3) the statute is not unconstitutional because it does not contain a
requirement that the jury be given burden of proof or standard of proof
instructions for finding aggravating and mitigating circumstances in reaching a
penalty determination, other than other crimes evidence, and specifically that all
aggravating factors must be proved beyond a reasonable doubt, or that such factors
must outweigh factors in mitigation beyond a reasonable doubt, or that death must
be found to be an appropriate penalty beyond a reasonable doubt (People v. Welch,
supra, 20 Cal.4th at pp. 767-768); (4) neither federal nor state Constitution
requires the jury to unanimously agree as to aggravating factors, nor have our
129
conclusions in this respect been altered by recent United States Supreme Court
decisions in Apprendi v. New Jersey (2000) 530 U.S. 466 and Ring v. Arizona
(2002) 536 U.S. 584 (People v. Ochoa, supra, 26 Cal.4th at pp. 452-454); (5) the
jury need not make written findings disclosing the reasons for its penalty
determination (People v. Jenkins, supra, 23 Cal.4th at p. 1053); (6) the jury may
properly consider evidence of unadjudicated criminal activity involving violence
or force under factor (b) of section 190.3 (People v. Brown, supra, 33 Cal.4th at p.
402), although, we note, in this case no such evidence was introduced; (7) because
the statute does not allocate the burden of proof (People v. Medina (1995) 11
Cal.4th 694, 782) and a burden of proof instruction need not, and should not, be
given (People v. Welch, supra, 20 Cal.4th at pp. 767-768), neither the failure of
the trial court to instruct the jury that the reasonable doubt standard does not apply
to mitigating factors, nor its failure to instruct the jury it need not unanimously
agree on such factors, violated defendant’s constitutional rights, nor was it likely
the jury would have imported the reasonable doubt standard from the guilt phase
into its penalty phase deliberations; (8) the trial court is not required to omit
inapplicable sentencing factors when instructing the jury (People v. Kipp, supra,
26 Cal.4th at p. 1138); (9) nor is the trial court constitutionally required to instruct
the jury that certain sentencing factors are relevant only to mitigation (People v.
Krafft (2000) 23 Cal.4th 978, 1078-1079), although in this case the trial court did
instruct the jury that defendant’s age could only be considered for mitigation; (10)
the use of certain adjectives in the list of mitigating factors, here, “substantial,”
“reasonably believed,” and “moral,” are not so vague as to erect a barrier to the
jury’s consideration of mitigating facts and render the statute unconstitutional (see
People v. Prieto, supra, 30 Cal.4th at p. 276 [“extreme,” “substantial”]); (11)
CALJIC No. 8.88, with which the jury was instructed, adequately defines
“mitigation” (People v. Ochoa, supra, 26 Cal.4th at p. 452) notwithstanding
130
defendant’s resort to empirical evidence which was not part of the record below
(People v. Taylor (2001) 26 Cal.4th 1155, 1180); (12) neither the federal nor state
Constitution requires intercase proportionality review (People v. Brown, supra, 33
Cal.4th at p. 402); (13) the statute does not deny equal protection because the
statutory scheme does not contain disparate sentence review (People v. Allen
(1986) 42 Cal.3d 1222, 1286-1288), nor does it deny equal protection on any other
ground (People v. Boyette, supra, 29 Cal.4th at pp. 465-467); and (14) the statute
is not constitutionally deficient because prosecutors retain discretion whether to
seek the death penalty (People v. Ochoa, supra, 26 Cal.4th at p. 461).
E. Preexecution Delay
Defendant contends the delay in carrying out his execution is violative of
his constitutional rights, including federal and state proscriptions against cruel and
unusual punishment. We have previously considered and rejected this argument
because, as we explained in People v. Ochoa, supra, 19 Cal.4th at pages 477-478,
“[a]s long as it is reasonable, the time required for our statutorily mandated review
is not a violation of a criminal defendant’s constitutional rights; it is essential to
ensuring that those rights are and have been respected. . . . [¶] As we stated in
[People v.] Hill [(1992) 3 Cal.4th 959], defendant’s claim is in reality a facial
challenge to the 1978 death penalty law. We have repeatedly held that the 1978
death penalty law is facially constitutional as a general matter [citation], and we
adhere to our holding in Hill with regard to defendant’s claim.”
F. International Norms
Defendant argues that California’s use of the death penalty violates
international norms of humanity and decency. We have, as he acknowledges,
repeatedly rejected this claim. “International law does not prohibit a sentence of
death rendered in accordance with state and federal and statutory requirements.
131
[Citations.]” (People v. Hillhouse (2002) 27 Cal.4th 469, 511; People v. Ghent
(1987) 43 Cal.3d 739, 778-779.)
G. Disproportionality of Sentence
Defendant contends his sentence is disproportionate to his culpability and
violates the state’s constitutional proscription against cruel or unusual punishment.
Defendant cites his lack of a previous criminal history and asserts his “ ‘personal
characteristics’ and background were most impressive. [Citation.] His
community activities were extremely impressive.” Additionally, defendant argues
he was “improperly convicted of the charged crimes.”
“To determine whether a sentence is cruel or unusual under the California
Constitution as applied to a particular defendant, a reviewing court must examine
the circumstances of the offense, including motive, the extent of the defendant’s
involvement in the crime, the manner in which the crime was committed, and the
consequences of the defendant’s acts. The court must also consider the personal
characteristics of the defendant, including his or her age, prior criminality, and
mental capabilities. [Citation.] If the penalty imposed is ‘grossly disproportionate
to the defendant’s individual culpability’ [citation], so that the punishment
“ ‘ “shocks the conscience and offends fundamental notions of human dignity’ ” ’
(People v. Cox, supra, 53 Cal.3d at p. 690), the court must invalidate the sentence
as unconstitutional.” (People v. Lucero, supra, 23 Cal.4th at pp. 739-740.)
It is true that defendant was a youth who, before this crime, had no prior
record of any serious offenses and it is also true that his journey from his native
land to this country was an arduous and perhaps traumatic one. His personal
characteristics, however, pale in comparison to the gravity and circumstances of
his current offense. Defendant sexually assaulted and brutally murdered an eight-
132
year-old child. We are unable to conclude that the penalty imposed in this case is
disproportionate to his culpability.
H. Cumulative Error
Defendant contends the cumulative effect of error during the proceedings in
his case, from pretrial rulings through the penalty phase, requires reversal. We
have either rejected his claims of error or found any errors to be individually
harmless. We also conclude their cumulative effect does not require reversal of
the judgment. (People v. Bolden, supra, 29 Cal.4th at pp. 567-568.)
IV. DISPOSITION
For the reasons stated, we affirm the judgment.
MORENO, J.
WE CONCUR: GEORGE, C. J.
KENNARD,
J.
BAXTER,
J.
WERDEGAR,
J.
CHIN,
J.
BROWN,
J.
133
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Panah
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S045504
Date Filed: March 14, 2005
__________________________________________________________________________________
Court: Superior
County: Los Angeles
Judge: Sandy R. Kriegler
__________________________________________________________________________________
Attorneys for Appellant:
Robert R. Bryan, under appointment by the Court of Appeal, and Jill Culbert for Defendant and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C.
Hamanaka, Assistant Attorney General, John R. Gorey and Ana R. Duarte, Deputy Attorneys General, for
Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Robert R. Bryan
Law Offices of Robert R. Bryan
2088 Union Street, Suite 4
San Francisco, CA 94123-4124
(415) 292-2400
Ana R. Duarte
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
(213) 897-2283
Opinion Information
| Date: | Docket Number: |
| Mon, 03/14/2005 | S045504 |
Parties
| 1 | The People (Respondent) Represented by Attorney General - Los Angeles Office Ana R. Duarte, Deputy Attorney General 300 South Spring Street, 5th Floor Los Angeles, CA |
| 2 | Panah, Hooman Ashkan (Appellant) San Quentin State Prison Represented by Robert Russell Bryan Law Offices of Robert R. Bryan 2088 Union St., Suite 4 San Francisco, CA |
| Disposition | |
| Mar 14 2005 | Opinion: Affirmed |
| Dockets | |
| Mar 6 1995 | Judgment of death |
| Mar 20 1995 | Filed certified copy of Judgment of Death Rendered 3-6-95. |
| Jan 20 1999 | Filed: Applic. of Applt for appointment of Counsel. |
| Jan 20 1999 | Filed: Request by Counsel for Dual representation appointment. |
| Jan 20 1999 | Filed: Request by Inmate for Dual representation. |
| Feb 3 1999 | Counsel appointment order filed Robert R. Bryan Is appointed to represent Applt for Both the direct Appeal and Related State Habeas Corpus/Executive Clemency Proceedings. |
| Feb 3 1999 | Compensation awarded counsel |
| Feb 24 1999 | Change of Address filed for: Atty Robert Bryan. |
| Apr 19 1999 | Received letter from: Los Angeles County Clerk, dated 4-14-99, Advising Record Was mailed to Applt's Counsel on 2-3-99. |
| May 6 1999 | Application for Extension of Time filed By Applt to request correction of the Record. |
| May 10 1999 | Extension of Time application Granted To Applt To 7-8-99 To request Corr. of Record. |
| May 28 1999 | Motion filed By Applt for Order Granting Applt's Counsel Perm. to Review & copy Evidence in case Possessed By Los Angeles Police Dept. |
| Jun 16 1999 | Order filed: Appellant's "Motion for Order Granting Appellant's Counsel Permission to Review and Copy Evidence in Case Possessed by Los Angeles Police Department" is denied. (People v. Gonzalez (1990) 51 Cal.3d 1179, 1258.) |
| Jul 6 1999 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Jul 6 1999 | Extension of Time application Granted To 9-7-99 To request Record correction |
| Aug 31 1999 | Application for Extension of Time filed By Applt to request Corr. of the Record. |
| Sep 1 1999 | Extension of Time application Granted To 11/8/99 To Applt To request Corr. of the Record no further Extensions of time Are Contemplated. |
| Oct 27 1999 | Compensation awarded counsel |
| Nov 2 1999 | Application for Extension of Time filed By Applt to request Corr. of the Record. |
| Nov 4 1999 | Extension of Time application Granted To 1/7/00 To Applt To request Corr. of the Record. no further Extensions of Times will be Granted. |
| Jan 5 2000 | Received: Copy of Applt's request for Corr. of Record, Examine Sealed Transcripts, and to Settle Record (7 Pps.) |
| Jan 7 2000 | Compensation awarded counsel Atty Bryan |
| Jun 7 2000 | Record on appeal filed C-19 (4,837 Pp.) and R-42 (3,255 Pp.) Including Material Under Seal; Clerk's Transcript includes 1,323 pages of Juror Questionnaires. |
| Jun 7 2000 | Appellant's opening brief letter sent, due: 7/17/2000 |
| Jun 14 2000 | Compensation awarded counsel Atty Bryan |
| Jul 6 2000 | Application for Extension of Time filed To file AOB. |
| Jul 12 2000 | Extension of Time application Granted To 9/15/2000 to file AOB. |
| Sep 7 2000 | Application for Extension of Time filed To file AOB (2nd request) |
| Sep 8 2000 | Extension of Time application Granted To 11/14/2000 to file AOB. |
| Sep 25 2000 | Counsel's status report received (confidential) |
| Nov 13 2000 | Application for Extension of Time filed To file AOB. (3rd request) |
| Nov 15 2000 | Extension of Time application Granted To 1/16/2001 to file AOB. |
| Dec 7 2000 | Counsel's status report received (confidential) |
| Dec 8 2000 | Compensation awarded counsel Atty Bryan |
| Jan 11 2001 | Application for Extension of Time filed To file AOB. (4th request) |
| Jan 18 2001 | Extension of Time application Granted To 3/19/2001 to file AOB. |
| Mar 6 2001 | Counsel's status report received (confidential) |
| Mar 14 2001 | Application for Extension of Time filed To file AOB. (5th request) |
| Mar 20 2001 | Extension of Time application Granted To 5/18/2001 to file AOB. |
| Mar 28 2001 | Compensation awarded counsel Atty Bryan |
| May 8 2001 | Application for Extension of Time filed To file AOB. (6th request) |
| May 10 2001 | Extension of Time application Granted To 7/17/2001 to file AOB. |
| May 11 2001 | Counsel's status report received (confidential) |
| Jul 11 2001 | Counsel's status report received (confidential) |
| Jul 11 2001 | Application for Extension of Time filed To file AOB. (7th request) |
| Jul 13 2001 | Extension of Time application Granted To 9/17/2001 to file AOB. No further extensions of time are contemplated. |
| Jul 20 2001 | Compensation awarded counsel Atty Bryan |
| Sep 10 2001 | Counsel's status report received (confidential) |
| Sep 10 2001 | Application for Extension of Time filed To file AOB. (8th request) |
| Sep 14 2001 | Extension of Time application Granted To 11/19/2001 to file AOB. No further extensions of time will be granted. |
| Nov 15 2001 | Request for extension of time filed To file AOB. (9th request) |
| Nov 26 2001 | Extension of time denied to file AOB. |
| Dec 11 2001 | Counsel's status report received (confidential) |
| Feb 14 2002 | Counsel's status report received (confidential) from atty Bryan. |
| Feb 25 2002 | Change of Address filed for: Applt. counsel Robert R. Bryan. |
| Mar 12 2002 | Counsel's status report received (confidential) |
| Apr 10 2002 | Counsel's status report received (confidential) from atty Bryan. |
| May 10 2002 | Counsel's status report received (confidential) |
| May 15 2002 | Filed: Declaration of counsel in support of request for fixed fee progress payment (Confidential). |
| May 15 2002 | Application for relief from default filed To file A0B. |
| May 15 2002 | Application to file over-length brief filed To file AOB. (546 pp. AOB submitted under separate cover) |
| May 16 2002 | Order filed Applt.'s application for relief from default and application to file AOB in excess of 280-pages are granted. |
| May 16 2002 | Appellant's opening brief filed (546 pp.) |
| May 21 2002 | Compensation awarded counsel Atty Bryan |
| May 31 2002 | Counsel's status report received (confidential) |
| Jun 7 2002 | Filed: Notice of errata to AOB as to cover page and table of contents. |
| Jun 11 2002 | Request for extension of time filed to file resp's. brief. [1st request]] |
| Jun 13 2002 | Extension of time granted to 8-16-2002 to file resp's brief. |
| Jul 22 2002 | Motion for access to sealed record filed respondent's motion for access to sealed transcripts. |
| Aug 6 2002 | Filed letter from: Atty. Robert Bryan, dated 8/1/2002, advising the court that he does not oppose respondent's motion for access to sealed transcripts. |
| Aug 9 2002 | Request for extension of time filed to file respondent's. brief (2nd. request) |
| Aug 14 2002 | Extension of time granted to 10-15-2002 to file respondent's brief. After that date, only two further extensions totaling 136 additional days are contemplated. Extension granted based upon Deputy AG Duarte's representation that she anticipates filing the brief by 2-28-2003. |
| Sep 25 2002 | Motion for access to sealed record granted "Respondent's Motion for Access to Sealed Transcripts," filed July 22, 2002, is granted. The clerk is directed to provide respondent and appellant with copies of the reporter's transcript of the in-camera hearing held on February 25, 1994 contained in volume 2A of the reporter's transcript, as well as the following pages of the reporter's transcript: pp. 1004-1045 (vol. 13, 11/21/94), pp. 1272-1283 (vol. 15, 11/30/94), pp. 1408-1431 (vol. 16, 12/1/94), and pp. 1452-1462 (vol. 17, 12/5/94). |
| Oct 4 2002 | Letter sent to: atty Bryan requesting that he provide the court with a copy of the portion of the reporter's transcript that he has referred to as "volume 2A" for comparison with the record on appeal on file. |
| Oct 9 2002 | Counsel's status report received (confidential) |
| Oct 11 2002 | Request for extension of time filed to file respondent's brief. (3rd request) |
| Oct 17 2002 | Extension of time granted To 12/16/2002 to file respondent's brief. After that date, only one further extension totaling 70 additional days is contemplated. Extension is granted based upon Deputy Attorney General Ana R. Duarte's representation that she anticipates filing that brief by 2/28/2003. |
| Oct 30 2002 | Letter sent to: counsel soliciting their response as to whether the court should unseal, on its own motion, the pages of the reporter's transcript that were the subject of the court's order of 9-25-2002. Response due on or before 11-8-2002. |
| Nov 4 2002 | Received letter from: applt, dated 10-31-2002, advising that he has no objection to the court unsealing the pages of the R.T. that were the subject of its 9-25-2002 order. |
| Nov 4 2002 | Received letter from: respondent, dated 11-4-2002, advising that respondent has no objection to its unsealing the R.T. pages that were the subject of the court's 9-25-2002 order. |
| Nov 8 2002 | Order filed The order filed on 9-25-2002, is hereby amended to read as follows: "Respondent's Motion for Access to Sealed Transcripts," filed July 22, 2002, is granted. The clerk is directed to provide respondent and appellant with copies of the reporter's transcript of the in-camera hearing held on February 25, 1994 contained in volume 2A of the reporter's transcript, as well as the following pages of the reporter's transcript: pp. 1004-1044 (vol. 13, 11/21/94), pp. 1272-1283 (vol. 15, 11/30/94), pp. 1408-1431 (vol. 16, 12/1/94), and pp. 1452-1462 (vol. 17, 12/5/94). |
| Nov 20 2002 | Record ordered unsealed On the court's own motion, the clerk is directed to unseal the original of the following portions of the reporter's transcript herein: the reporter's transcript of the in-camera hearing held on February 25, 1994 contained in volume 2A of the reporter's transcript, as well as the following pages of the reporter's transcript: pp. 1004-1044 (vol. 13, 11/21/94), pp. 1272-1283 (vol. 15, 11/30/94), pp. 1408-1431 (vol. 16, 12/1/94), and pp. 1452-1462 (vol. 17, 12/5/94). |
| Dec 2 2002 | Filed: R.T., vol. 2A (pp. 5-7 and 11-28) received this date from superior court. [Note: unsealed pursuant to Supreme Court order of 11-20-2002.] |
| Dec 13 2002 | Request for extension of time filed to file respondent's brief. (4th request) |
| Dec 19 2002 | Extension of time granted to 2-24-3003 to file respondent's brief. After that date, no further extension is contemplated. Extension granted based upon DAG Duarte's representation that she anticipates filing the brief by 2-24-2003. |
| Jan 13 2003 | Counsel's status report received (confidential) |
| Jan 22 2003 | Compensation awarded counsel Atty Bryan |
| Feb 24 2003 | Application filed to: to file Respondent's Brief in excess of 280 pages. submitted concurrent with Brief. |
| Feb 28 2003 | Order filed granting respondent's application for leave to file respondent's brief in excess of 280 pp. |
| Feb 28 2003 | Respondent's brief filed (436 pp.) |
| Mar 14 2003 | Request for extension of time filed to file appellant's reply brief. (1st request) |
| Mar 18 2003 | Extension of time granted to 5/16/2003 to file appellant's reply brief. |
| May 16 2003 | Request for extension of time filed to file appellant's reply brief. (2nd request) |
| May 20 2003 | Extension of time granted to 7/15/2003 to file appellant's reply brief. After that date, only one further extension totaling about 60 additional days will be granted. Extension is granted based upon counsel Robert R. Bryan's representation that he anticipates filing that brief by 9/15/2003. |
| Jul 24 2003 | Filed: application for relief from default (due to failure to file timely application for extension of time to file reply brief.) |
| Jul 24 2003 | Request for extension of time filed to file reply brief. (3rd request) |
| Jul 29 2003 | Extension of time granted The application of appellant's counsel for relief from default is granted. Extension of time granted to 9-17-2003 to file reply brief. After that date, no futher extension will be granted. Extension granted based upon counsel Robert R. Bryan's representation that he anticipates filing the brief by 9-17-2003. |
| Aug 4 2003 | Counsel's status report received (confidential) |
| Sep 8 2003 | Counsel's status report received (confidential) |
| Sep 10 2003 | Request for extension of time filed to file appellant's reply brief. (4th request) |
| Sep 11 2003 | Compensation awarded counsel Atty Bryan |
| Sep 18 2003 | Filed: Supplemental declaration in support of applicaton for extension of time to file appellant's reply brief. |
| Sep 23 2003 | Extension of time granted to 10/3/2003 to file appellant's reply brief. Extension is granted based upon counsel Robert R. Bryan's representation that he anticipates filing that brief by 10/3/2003. After that date, no further extension will be granted. |
| Oct 3 2003 | Application to file over-length brief filed to file appellant's reply brief. (210 pp. brief submitted under separate cover) |
| Oct 8 2003 | Order filed Appellant's applicatin to file reply brief in excess of 140-page limit is granted. |
| Oct 8 2003 | Appellant's reply brief filed (350 pp.) |
| Oct 28 2003 | Filed: "Errata, Corrected Table of Authorities, to Appellant's Reply Brief." |
| Nov 18 2003 | Counsel's status report received (confidential) |
| Nov 26 2003 | Motion for discovery filed (in AA proceeding) |
| Dec 4 2003 | Request for extension of time filed to respond to motion for discovery. Atty. General Anna R. Duarte {1st request) |
| Dec 11 2003 | Extension of time granted to 1/14/2004 to file the response to the motion for discovery. |
| Dec 29 2003 | Counsel's status report received (confidential) from atty Bryan. |
| Dec 29 2003 | Compensation awarded counsel Atty Bryan |
| Jan 12 2004 | Opposition filed respondent's, to motion for discovery. |
| Feb 17 2004 | Filed: Appellant's reply to opposition to motion for discovery (Penal Code Section 1054.9). |
| Apr 9 2004 | Related habeas corpus petition filed (concurrent) no. S123962. |
| Apr 9 2004 | Counsel's status report received (confidential) |
| Apr 14 2004 | Filed: Declaration of counsel in support of request for fixed fee progress payment (confidential). |
| Apr 14 2004 | Discovery motion denied The motion for postconviction discovery, filed on November 26, 2003, is denied. Denial is without prejudice to filing or refiling motions pursuant to Penal Code section 1054.9 and In re Steele (2004) 32 Cal.4th 682 in superior court. |
| Apr 14 2004 | Compensation awarded counsel Atty Bryan |
| Aug 26 2004 | Exhibit(s) lodged People's 1 (A-H) and 2 (A--J) |
| Oct 27 2004 | Oral argument letter sent advising counsel that case could be scheduled for oral argument as early as the January calendar, to be held the week of January 3, 2005, in San Francisco. Any request for additional time (to argue), notification of requirement for two counsel, or advisement of "focus issues" must be made no later than 10 days after the case has been set for oral argument. |
| Dec 8 2004 | Case ordered on calendar 1/5/05 @9am - San Francisco |
| Dec 16 2004 | Filed letter from: respondent, dated 12/16/2004, re focus issues for oral argument and request for 45 minutes for argument. |
| Dec 22 2004 | Filed letter from: appellant's counsel, dated 12/18/2004, re focus issues for oral argument and request for 45 minutes for argument. |
| Jan 5 2005 | Cause argued and submitted |
| Jan 12 2005 | Compensation awarded counsel Atty Bryan |
| Mar 14 2005 | Opinion filed: Judgment affirmed in full Opinion by Moreno, J. -----joined by George, C.J., Kennard, Baxter, Werdegar, Chin, & Brown, JJ. |
| Mar 29 2005 | Rehearing petition filed by appellant. (37 pp.) |
| Apr 4 2005 | Time extended to consider modification or rehearing to 6/10/2005, or the date upon which rehearing is either granted or denied, whichever occurs first. |
| Apr 5 2005 | Filed: Certificate of word count in appellant's petition for rehearing. |
| May 18 2005 | Order filed (150 day statement) |
| May 18 2005 | Rehearing denied Petition for rehearing denied. |
| May 18 2005 | Remittitur issued (AA) |
| May 31 2005 | Exhibit(s) returned to superior court. |
| Jun 6 2005 | Received: acknowledgment of receipt of remittitur. |
| Jun 10 2005 | Received: acknowledgment from superior court of receipt of exhibits. |
| Jun 29 2005 | Compensation awarded counsel Atty Bryan |
| Oct 14 2005 | Habeas funds request filed (confidential) |
| Oct 17 2005 | Received: copy of appellant's cert petition. (39 pp. - excluding attached exhibits) |
| Nov 16 2005 | Order filed re habeas funds request (confidential) |
| Dec 5 2005 | Received: Letter from U.S.S.C. dated 11/29/2005 advising cert petition 10/17/2005 as No. 05-7760. |
| Mar 6 2006 | Certiorari denied by U.S. Supreme Court |
| Jan 17 2007 | Motion for access to sealed record filed by Federal Public Defender, "Application for Release of Files, Records and Any Confidential Materials." |
| Mar 14 2007 | Received: letter for Federal Public Defender regarding application for release of files filed on January 17, 2007. |
| Apr 25 2007 | Motion for access to sealed record granted ood cause appearing, the Application for Release of Files, Records and Any Confidential Materials, filed on January 11, 2007, is granted. Counsel is granted access to the confidential materials in People v. Hooman Ashkan Panah (S045504) and In re Hooman Ashkan Panah on Habeas Corpus (S123962). Counsel must supply the personnel and equipment necessary to undertake this review and copying of the records, which must occur on the premises of the court. |
| Aug 30 2007 | Related habeas corpus petition filed (post-judgment) case no. S155942. |
| Briefs | |
| May 16 2002 | Appellant's opening brief filed |
| Feb 28 2003 | Respondent's brief filed |
| Oct 8 2003 | Appellant's reply brief filed |
