IN THE SUPREME COURT OF CALIFORNIA
Plaintiff and Respondent,
RICHARD RAY PARSON,
Super. Ct. No. 94F00191
Defendant and Appellant.
Defendant Richard Ray Parson was convicted by a jury of one count of first
degree murder (Pen. Code, § 187, subd. (a)),1 one count of first degree robbery
(§ 211), and one count of first degree burglary (§ 459). The jury found true the
allegation that defendant personally used a deadly and dangerous weapon in the
commission of the murder (§ 12022, subd. (b)), as well as the special
circumstances that the murder was committed while defendant was engaged in
robbery and burglary (§ 190.2, subd. (a)(17)). At a bench trial, the court found
true five prior conviction and prior prison term allegations for purposes of
sentence enhancement. At the penalty phase, the jury returned a verdict of death.
Appeal to this court is automatic. (§ 1239, subd. (b).)
As we explain below, we find no prejudicial error at the guilt or penalty
phase of defendant’s trial. We therefore affirm the judgment in its entirety.
All statutory references are to this code unless otherwise indicated.
A. The Guilt Phase
Theresa Schmiedt was a 59-year-old convalescent hospital nurse who lived
by herself in an apartment complex in Sacramento, California. On the morning of
January 2, 1994, she was found murdered in her living room. She had died from
blunt craniocerebral trauma caused by multiple hammer blows to her head.
1. The Prosecution Case
Defendant and Theresa Schmiedt knew each other before the murder.
According to the prosecution, defendant was a longtime drug abuser who
sometimes spent as much as $500 a day on drugs, and the need to support his drug
habit motivated him to kill Schmiedt. The prosecution’s case included the
testimony of Schmiedt’s neighbors and defendant’s ex-wife, forensic and other
physical evidence, and evidence of defendant’s own statements and admissions.
Around 8:30 p.m. on January 1, 1994, Schmiedt spoke with her daughter,
Mary Pendergrass, by telephone. Schmiedt expressed fear during the telephone
call and spoke of calling the police because “ ‘[t]he crazy man was on his way
over with a large sum of money.’ ” Although Pendergrass was not sure that
Schmiedt mentioned defendant by name, she understood her mother to be talking
about Richard Parson.
Around 10:00 o’clock that same night, Patricia Clark was in her apartment
unit directly below Schmiedt’s unit, when she heard Schmiedt allow a male visitor
in. Once the visitor was inside, Clark heard footsteps in Schmiedt’s kitchen area
and subsequently heard “a lot of fast, shuffling-type footsteps” sounding like
dancing. About 15 or 20 minutes after the visitor’s arrival, Clark heard the springs
squeaking in Schmiedt’s recliner chair and then a single “thump” sound.2 After
the thump, Clark heard no other noises in Schmiedt’s apartment. As far as Clark
could tell, Schmiedt was not in distress, and nothing was wrong upstairs.
When Schmiedt did not report to work the next day, her employer asked
Jennie Treiger, the assistant manager at the apartment complex, to check in on
Schmiedt. Treiger entered Schmiedt’s unit and found her body curled up in a fetal
position in a recliner chair, which had been tipped backward. There were
bloodstains on the nurse’s uniform Schmiedt was wearing, and her hair was
matted with blood.
Dr. Gregory Reiber, who performed the autopsy, testified that Schmiedt
died from blunt craniocerebral trauma caused by 18 or more blows to her head
from an instrument such as a hammer. The area of the skull surrounding her left
ear had been shattered open, and the skull had been fragmented into multiple
pieces. The damage had left her brain tissue exposed, her left ear nearly severed,
and her lower jaw fractured. Dr. Reiber also found scraping and bruising around
the front side of Schmiedt’s neck, a fractured hyoid bone, and petechial
hemorrhaging in her right eye, which were consistent with manual strangulation.
Both of Schmiedt’s forearms were fractured and extensively bruised, indicating
she attempted to defend against the blows to her head.
Bank cameras recorded defendant’s presence at various automated transfer
machines (ATM’s) in the early morning hours of January 2, 1994, as Sherri
Knowles and Christina Quintana attempted to withdraw money from Schmiedt’s
accounts using her ATM card. Three withdrawals, each in the amount of $40,
were made at a First Interstate Bank ATM in Stockton. Several withdrawal
Another neighbor also reported hearing the thump sound that evening.
attempts were made at a Wells Fargo Bank ATM in Stockton, but only one
successful withdrawal of $100 occurred. Other unsuccessful withdrawal attempts
were made at a Bank of the West ATM. The following day, additional
withdrawals totaling $260 were made from Schmiedt’s Wells Fargo Bank account.
On January 3, 1994, defendant was with his friend, Jeanne Maccrone, when he
attempted to cash a $500 check from Schmiedt’s account.
On the evening of January 4, 1994, defendant checked into the National 9
Motel in Gilroy, California. The next day, defendant’s car remained in the motel
parking lot, but he had disappeared without checking out or paying to extend his
stay. The motel manager called the Gilroy police, whose arrival at the motel was
followed by that of county and federal authorities. Various items of evidence were
seized from defendant’s motel room, including the victim’s purse and her credit
cards, driver’s license, checkbook, and checks, as well as defendant’s clothing and
other personal effects, a hammer, an athletic bag, marijuana, a syringe, heroin, and
sixth-tenths of a gram of methamphetamine. The hammer had traces of human
blood, and defendant’s ex-wife, Josephine Parson, testified the hammer looked
like the one she earlier placed in a toolbox in defendant’s car. A search of
defendant’s car produced a suitcase that contained miscellaneous legal papers,
some bearing his name.
At Schmiedt’s apartment, prints matching defendant’s fingerprints were
found on a coffee cup, a Dairy Queen cup, and a wallboard. Prints matching his
fingerprints also appeared on a piece of paper from a yellow legal pad. Human
blood was found in the kitchen sink and on the living room wall.
On January 7, 1994, an arrest warrant for defendant was issued in
Sacramento County. On January 10, United States Marshals placed him on their
list of “top 15 most-wanted fugitives.”
Around midnight on January 12, 1994, defendant telephoned the home of
Lawanna Tomason, a female acquaintance, and he asked to speak with their
mutual friend, Jeanne Maccrone. Tomason thought defendant sounded nervous.
Before Tomason called Maccrone to the phone, defendant told her, “ ‘Remember
what I said I was going to do? . . . Well, I did it, but I lost everything in the
process.’ ” He then asked Tomason if the police had been by. When she said no,
he replied, “ ‘[w]ell, they’ll be coming by.’ ” Tomason had no idea what
defendant was talking about, but assumed he was referring to a bank robbery
because he mentioned in a prior conversation that he would repay her and
Maccrone back for their kindness.
On January 17, 1994, defendant was arrested in Vancouver, Washington.
He appeared to be on drugs at the time. After his arrest, defendant telephoned his
ex-wife, Josephine Parson. During that call, she asked defendant what happened.
He replied, “ ‘A lot of madness’ ” and “ ‘I guess they’ll put me in the electric
chair.’ ” When she asked defendant if what happened was “ ‘[b]ecause she
wouldn’t give you the money,’ ” he responded, “ ‘[s]omething like that.’ ”
On April 5, 1994, Josephine Parson visited defendant at the Sacramento
County Jail. During their tape recorded conversation, she told him she would tell
the truth regarding her knowledge of the case. Defendant replied, “ ‘[t]he truth
ain’t going to work in this case.’ ”
While incarcerated in the Sacramento County Jail, defendant referred to his
murder of a woman in a note he sent to fellow inmate Tyler Jameson: “I
understand your rage in being fucked over by your lady, my situation was of a
similiar [sic] nature except the bitch tried to burn me for not smoking her ex-
husband! When I went to get my money she got crazy + I had to shut her up, a
robbery became a 187 + here I am in this madness — Anyway, thanks for helping
with the bond money to Jay for my friend, I’ll be repaying you as soon as possible
— Rip this kite up + flush.” The note indicated that “Jay” was a reference to
2. The Defense Case
The defense conceded that defendant rendered the blows that killed
Schmiedt, but contended he did not intend to kill her when he entered her
apartment. Defendant had been using methamphetamine extensively during this
time period. He went to Schmiedt’s apartment to charm or con money out of her
in order to support his drug habit, and he entered her home as an invited guest.
While there, he caught Schmiedt looking at his list of personal contacts that he had
kept in his wallet, and he became convinced she was working with law
enforcement to apprehend him. His drug-induced paranoia caused him to become
enraged and beat her uncontrollably with the hammer. After Schmiedt died,
defendant panicked and fled the scene, taking her purse with him.
B. The Penalty Phase
1. The Prosecution Case
The prosecution relied on the circumstances of the underlying murder in
advocating for the death penalty.
The prosecution also presented evidence of the following 10 prior felony
convictions: (1) an October 1983 federal conviction for conspiracy to introduce a
narcotic drug into a prison; (2) an October 1983 federal conviction for using a
communication facility to commit a felony; (3) a May 1977 California conviction
for receiving stolen property; (4) a May 1977 California forgery conviction; (5) a
June 1970 federal conviction for robbing a bank in Oregon; (6) a June 1970
federal firearm conviction related to the Oregon bank robbery; (7) a federal
conviction for robbery of a Washington bank in 1969 by means of armed assault;
(8) a February 1968 Alaska forgery conviction; (9) a February 1968 Alaska
conviction for passing a forged check; and (10) a September 1967 federal
conviction for interstate transportation of a stolen vehicle. Additionally, the
prosecution presented evidence that defendant previously committed two robberies
involving the express or implied use of force or violence or the threat of force or
Schmiedt’s son, Theodore Brame, told the jury that his mother raised three
children by herself and that she cared for many sick and dying people at the
convalescent hospital where she worked. He experienced uncontrollable grief
upon learning of his mother’s death.
2. The Defense Case
Family members described defendant’s family as one that moved around a
lot and did not have much money. Defendant helped out by doing odd jobs for
farmers. Defendant’s parents drank heavily, fought with each other, and
occasionally beat him.
Defendant’s father explained that defendant was a “normal boy” who did
not get into any real trouble until adulthood. His mother gave a similar account,
indicating that defendant was an adult when he became involved in blackmail,
bank robberies, and parole violations. Although defendant’s father did not want to
see him executed, his mother said she loved him but it would not bother her and
she would be relieved if he received a death sentence. Defendant’s two adult
daughters, his siblings, and his friends testified they did not want to lose him to
Clinical psychologist Larry Nicholas reviewed defendant’s
neuropsychological evaluation and criminal records. He also conducted several
interviews with defendant and reviewed videotaped interviews of his family
members. His investigation disclosed that defendant’s family was highly
dysfunctional, that his parents had quick tempers, and that discipline in the family
was harsh. The family experienced suicides, suicide attempts, and sexual
victimization. Defendant was a difficult child, and his mother often locked him in
a closet for hours at a time.
Neuropsychologist John Wicks administered a battery of tests on defendant
and concluded defendant was in the low or dull normal range of intelligence.
Defendant had mild to moderate dementia, perhaps resulting from premature
aging, cardiovascular disease, or excessive drug and alcohol use. Dr. Wicks also
assumed, based on defendant’s history, that he had an antisocial personality.
Psychiatrist Albert Globus found evidence of longstanding brain damage to
both of defendant’s temporal lobes and probable damage to the frontal lobes. Dr.
Globus concluded the damage impaired defendant’s social judgment or cognitive
ability, as well as his memory, at the time of the murder. He also believed that,
when the murder occurred, defendant was under the influence of alcohol and
methamphetamine and suffering from an organic mental defect. Although Dr.
Globus estimated defendant’s IQ at slightly above 100, he believed defendant had
a reduced capacity to control his impulses of rage the night he killed Schmiedt.
Defendant gave the following allocution statement: “Members of the jury,
I killed Theresa Schmiedt. I had no intention to kill this victim when I entered her
apartment. And I apologize to both the victim’s family and to my family for the
pain I have caused.”
A. Pretrial and Guilt Phase Issues
1. Denial of Motion to Suppress
The trial court denied defendant’s pretrial motion to suppress evidence
seized from his Gilroy motel room and vehicle. Defendant contends this ruling
was erroneous and deprived him of his state and federal constitutional rights to a
fair trial, a meaningful defense, effective assistance of counsel, a fair
determination of guilty and penalty, reasonable access to the courts, equal
protection, and due process of the law.
a. Background Facts
On the evening of January 4, 1994, defendant checked into the National 9
Motel in Gilroy, California. He paid for a one night’s lodging but advised the
manager he might stay another night or two.
On January 5, 1994, defendant disappeared without paying for an additional
night’s stay or checking out by the 11:00 a.m. deadline. Although defendant’s car
was in the motel parking lot, there was no answer when the maid and the manager
periodically knocked on defendant’s motel room door and telephoned the room
during the day. Between 5:30 and 6:00 p.m., the motel comanager (the manager’s
husband) checked the motel room. Finding the front door chained from the inside,
the comanager went around the back and saw that the bathroom window was open.
A damaged window screen was lying on the ground, along with a man’s jacket.
The comanager entered the room through the open window, and told his wife to
call police after he found no one inside.
At approximately 6:00 o’clock that evening, Gilroy Police Detective
Sergeant Daniel Carumrine arrived at the motel. Between 10:00 and 11:00 p.m.,
Federal Deputy Marshals David Gump and Jeff Jones arrived at the scene with a
federal arrest warrant for defendant based on a parole violation. Detectives Stan
Reed and Darrell Edwards of the Sacramento County Sheriff’s Department also
arrived, after receiving Deputy Marshal Gump’s report of defendant’s possible
presence at the motel. By that time, the detectives regarded defendant as a prime
suspect in Schmiedt’s murder based on information that he went to her apartment
the night she was killed (January 1, 1994) and that he was involved in attempts to
use her ATM card in the hours and days following the murder (January 2 and 3,
The comanager informed the authorities that he had entered defendant’s
motel room and did not find defendant inside. Because the rear of the motel had
not been under surveillance after the comanager’s inspection, the authorities
decided to enter the room to check for defendant and serve the arrest warrant if
possible. Edwards and Jones covered the bathroom window while Reed,
Carumrine, and Gump stayed at the front door. Reed knocked and announced
their presence and their purpose to arrest defendant pursuant to the arrest warrant.
Hearing no response, the authorities entered the room with a passkey provided by
the motel manager.
Edwards walked directly to the bathroom to confirm he had been standing
outside of defendant’s room. Defendant was not present, and the bed looked as if
no one had slept in it. Various personal items had been left in the room, including
clothes, toiletries, a pair of glasses, and a newspaper. Edwards and Reed saw a
woman’s purse containing Schmiedt’s driver’s license and credit cards. They also
saw an unzipped black athletic bag on the floor, and without opening it further,
observed a hammer inside. Although Reed believed that defendant had abandoned
the motel room, he decided to seek guidance from a district attorney regarding the
legality of a search.3
Gilroy Police Detective Carumrine testified that one or two officers were in
the motel room for about an hour, but he acknowledged that was an “assumption”
and that he “[did not] recall for sure.” Detective Reed testified that Carumrine’s
time estimate was incorrect, and Detective Edwards likewise estimated they were
in the room for 15 minutes before they left to obtain a search warrant.
Reed telephoned the Sacramento County District Attorney’s Office and
spoke with Deputy District Attorney Steve Secrest. As the need for a search
warrant was being considered, the authorities exited the motel room and secured
it. Secrest ultimately determined that the room was probably abandoned, but that
a search warrant should be obtained due to the seriousness of the case. Reed and
Edwards then prepared a search warrant affidavit and presented it to a judge the
next morning (on January 6, 1994).
After obtaining a warrant, Reed and Edwards returned to the motel and
conducted a search of the room and defendant’s car. Evidence seized from the
room included the victim’s purse, which contained her identification, credit and
debit cards, checkbook, and checks. Also seized were items belonging to
defendant, including clothing, eyeglasses, toiletries, the athletic bag with the
hammer, marijuana, a syringe, heroin, and sixth-tenths of a gram of
methamphetamine. Evidence seized from the car included a suitcase containing
miscellaneous legal papers.
Before trial, defendant moved to suppress the seized evidence. (§ 1538.5.)
After hearing from both sides, the trial court expressed its view that a search
warrant might not have been necessary given the facts included in the search
warrant affidavit. The court denied suppression, specifically finding as a factual
matter that defendant had abandoned the motel room. It additionally agreed with
the prosecution that the authorities properly entered the room pursuant to the arrest
warrant and the exigent circumstances doctrine, and that the evidence was
admissible under the plain view, independent source, and inevitable discovery
doctrines. The court, however, did not agree that defendant lacked standing to
contest the search of the victim’s purse found in the motel room.
Defendant essentially claims that the initial warrantless entry of county and
federal authorities into the motel room was unlawful, that the decision of
Detectives Reed and Edwards to seek a search warrant was prompted by their
observations during that initial illegal entry, and that use of such observations
tainted the warrant-authorized room and car searches and invalidated the resulting
seizure of evidence. According to defendant, the trial court’s denial of his
suppression motion was erroneous and violated his state and federal constitutional
rights. We disagree for the reasons below.
In ruling on a motion to suppress, the trial court is charged with (1) finding
the historical facts; (2) selecting the applicable rule of law; and (3) applying the
latter to the former to determine whether or not the rule of law as applied to the
established facts has been violated. (People v. Ayala (2000) 24 Cal.4th 243, 279.)
On appeal, we review the trial court’s resolution of the first inquiry, which
involves questions of fact, under the deferential substantial-evidence standard, but
subject the second and third inquiries to independent review. (Ibid.; see also
People v. Weaver (2001) 26 Cal.4th 876, 924.)
The Fourth Amendment to the federal Constitution guarantees against
unreasonable searches and seizures by law enforcement and other government
officials.4 This protection extends to motel and hotel rooms in which the occupant
has a reasonable expectation of privacy. (Stoner v. California (1964) 376 U.S.
483, 490; People v. Bennett (1998) 17 Cal.4th 373, 384.) It has long been settled,
however, that a warrantless search and seizure involving abandoned property is
In California, issues relating to the suppression of evidence derived from
governmental searches and seizures are reviewed under federal constitutional
standards. (People v. Ayala (2000) 23 Cal.4th 225, 254-255.)
not unlawful, because a person has no reasonable expectation of privacy in such
property. (Abel v. United States (1960) 362 U.S. 217, 241 [wastebasket contents
in vacated hotel room]; People v. Smith (1966) 63 Cal.2d 779, 800-801
[abandoned rental car]; People v. Daggs (2005) 133 Cal.App.4th 361, 365
[abandoned cell phone].) Thus, “when a day-to-day room guest of a hotel or motel
departs without any intention of occupying the room any longer and without
making any arrangement for payment of his bill, an inference arises that he has
abandoned his tenancy. . . . This is so even though the guest leaves some of his
personal belongings behind.” (People v. Raine (1967) 250 Cal.App.2d 517, 521
[finding motel room search lawful even though it preceded the motel’s daily
checkout time]; see also People v. Ingram (1981) 122 Cal.App.3d 673, 677-678;
People v. Remiro (1979) 89 Cal.App.3d 809, 834-835.)
“[T]he intent to abandon is determined by objective factors, not the
defendant’s subjective intent. ‘ “Abandonment is primarily a question of intent,
and intent may be inferred from words, acts, and other objective facts. [Citations.]
Abandonment here is not meant in the strict property-right sense, but rests instead
on whether the person so relinquished his interest in the property that he no longer
retained a reasonable expectation of privacy in it at the time of the search.” ’
[Citations.]” (People v. Daggs, supra, 133 Cal.App.4th at pp. 365-366.) “The
question whether property is abandoned is an issue of fact, and the court’s finding
must be upheld if supported by substantial evidence.” (Id. at p. 365.)
Here, the evidence at the suppression hearing established that defendant left
Sacramento in the hours after Theresa Schmiedt was murdered on January 1, 1994,
and then headed to Stockton where he and others attempted to withdraw money
from Schmiedt’s bank accounts at various ATM’s. On January 4, defendant paid
for one night’s lodging at the motel in Gilroy. Although he indicated to the motel
manager that he might stay another night or two, he disappeared without paying
for an additional night’s stay or further communicating with the motel managers or
employees. The comanager entered the room several hours after the 11:00 a.m.
checkout time had passed, and only then after repeated attempts to make contact
with defendant failed. The bed in the room looked as if no one had slept in it, and
clothes and other personal items had been left behind. Although defendant’s car
was parked in front of the motel room, he apparently exited out the back through
the bathroom window after locking the front door with the interior chain. A
broken window screen and a jacket were found on the ground underneath the open
window. Once defendant departed from the motel, he never contacted the motel
manager about the room or the items he left behind. The next time anyone
reported hearing from him was a week later (January 12) when he called Lawanna
Tomason from Bend, Oregon.
Viewed in the light most favorable to the trial court’s ruling, this evidence
amply demonstrated an intent on defendant’s part to abandon the motel room and
the items left behind. The circumstances were all objective indications that
defendant, who fled Sacramento after Schmiedt’s murder, had decided to
surreptitiously leave the motel room and the Gilroy area in a hurry.
In disputing the abandonment finding, defendant points out that (1) he left
his belongings and car at the motel; (2) the motel manager indicated that, at least
for some time after the 11:00 a.m. checkout time had passed, she still considered
him a guest because his car remained in the lot and the motel’s policy was to allow
a one-day grace period before confiscating a room and placing a guest’s
belongings in storage; and (3) even the detectives were not absolutely certain he
had abandoned the room. We are not persuaded.
While the first circumstance arguably supports a finding that defendant
intended to return to the motel, it is also entirely consistent with the trial court’s
contrary finding that he took flight and abandoned the premises in a rush.
Likewise, the subjective beliefs of the motel manager and the detectives were not
inconsistent with the court’s finding of abandonment and fail to warrant reversal
of that finding.
Relying on U.S. v. Allen (6th Cir. 1997) 106 F.3d 695, U.S. v. Huffhines
(9th Cir. 1992) 967 F.2d 314, U.S. v. Reyes (8th Cir. 1990) 908 F.2d 281, and U.S.
v. Ramirez (5th Cir. 1987) 810 F.2d 1338, defendant appears to argue that an
abandonment may not be found where, as here, the motel manager did not retake
physical possession of the motel room from the guest prior to the challenged
search. We are not convinced.
U.S. v. Allen, supra, 106 F.3d 695, U.S. v. Huffhines, supra, 967 F.2d 314,
and U.S. v. Reyes, supra, 908 F.2d 281, all addressed warrantless searches of
rented property, but, strictly speaking, they did not purport to identify
abandonment as the issue raised. Instead, these decisions essentially determined
that a person has no reasonable expectation of privacy in a rented space after the
rental period has expired, and that upon expiration of the rental period, the owner
is entitled to retake control and physical possession of the rental property and
consent to its search by the police. (U.S. v. Allen, supra, 106 F.3d at p. 699 [motel
manager locked guest out of room]; U.S. v. Huffhines, supra, 967 F.2d at p. 318
[motel assistant manager repossessed room] U.S. v. Reyes, supra, 908 F.2d at p.
286 [owner plugged lock of rented bus station locker]; U.S. v. Ramirez, supra, 810
F.2d at p. 1340 [manager entered hotel room to ready it for new occupants].)
Although U.S. v. Ramirez, supra, 810 F.2d 1338, did characterize the hotel room
in that case as “abandoned” when the defendants did not return to the room due to
their lawful arrest (id. at p. 1340), its rationale for denying suppression was similar
to that in the other three decisions. (Id. at p. 1341, fn. 3). Thus, while these
authorities indicate there can be no legitimate expectation of privacy in a rented
room after the paid occupancy period expires and the owner actually reasserts
physical control over the room, they fall far short of holding or even suggesting
that a motel room must be formally repossessed in order to be deemed
Moreover, as discussed, case law establishes that abandonment is primarily
a question of the defendant’s intent, as determined by objective factors such as the
defendant’s words and actions. (People v. Daggs, supra, 133 Cal.App.4th at pp.
365-366 [and cases cited].) Logically, then, the question of abandonment should
not necessarily turn on whether a motel’s management elects to repossess.
In sum, the trial court’s denial of the suppression motion, based on its
finding of abandonment, reflected a correct application of the law and did not
violate defendant’s constitutional rights.6
2. Failure to Instruct on Assault
Defendant contends the trial court erroneously failed to instruct sua sponte
on assault because there was substantial evidence showing the offense he
committed was less than the charged robbery and burglary counts. The failure to
so instruct, he claims, requires reversal of the robbery and burglary convictions, as
well as the first degree murder conviction and special circumstances premised on
robbery and burglary.
a. Background Facts
The information charged defendant with first degree felony murder,
robbery, and burglary, and alleged the special circumstances of robbery murder
Although the same facts might support a search under both under both an
abandonment theory and a repossession and consent theory, the People did not
advance the latter theory in the proceedings below and do not raise it here.
In light of this conclusion, we need not and do not address whether the
court’s ruling may be upheld on other grounds.
and burglary murder. According to the prosecution’s theory of the case, defendant
committed a burglary by entering Schmiedt’s apartment with the intent to commit
a robbery or theft in order to obtain money to feed his expensive drug and alcohol
habit. Once inside the apartment, he robbed and killed Schmiedt during his
commission of the robbery and burglary.
As relevant here, the court instructed the jury on the elements of robbery
and burglary, but did not instruct on assault as a lesser included offense of
robbery. The court also instructed, in conformity with CALJIC No. 4.21.1 (1992
new), that if there was evidence defendant was intoxicated at the time of the
alleged crimes, the jury “should consider that fact in determining whether or not
the defendant had [the requisite] specific intent or mental state” for the crimes of
murder, manslaughter, burglary, or robbery.
In determining whether the trial court was required to instruct on assault,
we are guided by the following legal principles. A trial court has a sua sponte
obligation to instruct the jury on any uncharged offense that is lesser than, and
included in, a greater charged offense, but only if there is substantial evidence
supporting a jury determination that the defendant was in fact guilty only of the
lesser offense. (People v. Waidla (2000) 22 Cal.4th 690, 733; People v.
Bacigalupo (1991) 1 Cal.4th 103, 127, vacated on other grounds, Bacigalupo v.
California (1992) 506 U.S. 802; see People v. Breverman (1998) 19 Cal.4th 142,
154-155.) An uncharged offense is included in a greater charged offense if either
(1) the greater offense, as defined by statute, cannot be committed without also
committing the lesser (the elements test), or (2) the language of the accusatory
pleading encompasses all the elements of the lesser offense (the accusatory
pleading test). (People v. Wolcott (1983) 34 Cal.3d 92, 98; People v. Barrick
(1982) 33 Cal.3d 115, 133; see People v. Reed (2006) 38 Cal.4th 1224, 1227-
Under the elements test, a court determines whether, as a matter of law, the
statutory definition of the greater offense necessarily includes the lesser offense.
A robbery is “the felonious taking of personal property in the possession of
another, from his person or immediate presence, and against his will,
accomplished by means of force or fear.” (§ 211, italics added.) An assault,
however, is “an unlawful attempt, coupled with a present ability, to commit a
violent injury on the person of another.” (§ 240.) Because a robbery can be
committed strictly by means of fear, assault is not a lesser included offense of
robbery under the elements test. (People v. Wolcott, supra, 34 Cal.3d at p. 100.)
Under the accusatory pleading test, a court reviews the accusatory pleading
to determine whether the facts actually alleged include all of the elements of the
uncharged lesser offense; if it does, then the latter is necessarily included in the
former. (People v. Reed, supra, 38 Cal.4th at pp. 1227-1228.) Here, the pleadings
accused defendant of a taking by force and fear. Analogizing to People v.
Barrick, supra, 33 Cal.3d 115, which addressed the accusatory pleading test in the
context of vehicle theft and joyriding, defendant contends that, because the
robbery as charged was necessarily accompanied by force, it necessarily included
the lesser offense of assault. Defendant may be understood to argue he was
entitled to instructions on assault because the evidence supported a finding that
when he entered Schmiedt’s apartment and used force against her, he was so
intoxicated he did not actually form or harbor the requisite intent for robbery, i.e.,
the intent to permanently deprive Schmiedt of her property.7
Defendant also appears to argue there was significant evidence he could not
form the requisite intent to steal due to intoxication. As of June 8, 1982, however,
(footnote continued on next page)
In response to defendant’s claim, the People rely on People v. Wright
(1996) 52 Cal.App.4th 203, which specifically held an assault is not necessarily
included when a pleading alleges a robbery by force and fear. Wright reasoned
that commission of a robbery by force is possible without necessarily committing
an assault because the use of force may be actual or constructive, and may include
the use of threat to induce fear, even without an attempt to apply force or the
present ability for an assault. (52 Cal.App.4th at pp. 210-211.)
Even assuming that assault is a lesser included offense of robbery as
charged here, the trial court was under no sua sponte obligation to instruct on
assault if, in any event, there was no substantial evidence supporting a jury
determination that the defendant was in fact guilty only of that offense. (See, e.g.,
People v. Sakarias (2000) 22 Cal.4th 596, 622, fn. 4; People v. Bacigalupo, supra,
1 Cal.4th at p. 127.) In making this determination, we turn to defendant’s claim
that he was so intoxicated when he went to Schmiedt’s apartment that he did not
form or harbor the specific intent to rob or steal from her.8
The sum and substance of the evidence relating to intoxication was as
follows. Josephine Parson testified that defendant had “drugged a whole lot” ever
(footnote continued from previous page)
the law established that “[e]vidence concerning an accused person’s intoxication
. . . shall not be admissible to show or negate capacity to form the particular
purpose, intent, motive, malice aforethought, knowledge, or other mental state
required for the commission of the crime charged.” (§ 25, subd. (a); see also § 22,
Although the trial court apparently found an evidentiary basis to support
voluntary intoxication instructions, defendant acknowledges the People are
entitled to an independent appellate determination of the sufficiency of the
evidence of intoxication to warrant assault instructions. (See People v. Frierson
(1979) 25 Cal.3d 142, 157.)
since 1960 or 1970, and he could have been supporting a $500-a-day drug habit in
1993. Defendant ingested drugs and alcohol when he stayed with Josephine
Parson beginning in November 1993 to sometime before Christmas 1993, and she
believed he was on alcohol and/or drugs when he telephoned her on January 2,
1994 (the day after Schmiedt’s murder) and again on January 17, 1994 (the date of
defendant’s arrest in Vancouver, Washington). Jeanne Maccrone and Lawanna
Tomason testified that in November 1993, they drank alcohol with defendant.
Maccrone also testified that on January 2, 1994, she saw defendant drinking a beer
and thought he was drunk. Tomason testified she saw defendant on January 2 and
he seemed fine, but on January 3, 1994, she heard defendant slurring his words
and thought he might have been smoking marijuana. Detective Edwards and
Deputy Marshal Gump testified that on January 6, 1994, they searched defendant’s
Gilroy motel room and found small amounts of methamphetamine and marijuana,
and heroin paraphernalia. When defendant was arrested on January 17, 1994, he
appeared to be under the influence of drugs.
Whether considered separately or together, the foregoing did not furnish
substantial evidence to support a determination that defendant was under the
influence of drugs or alcohol at the time he entered Schmiedt’s apartment and used
force against her. (People v. Roldan (2005) 35 Cal.4th 646, 716 [evidence
showing the defendant habitually used marijuana and was “ ‘ecstatic’ ” and on
“ ‘cloud nine’ ” a few hours after the crime did not constitute substantial evidence
that he was intoxicated or under the influence at the time of the crime]; People v.
Horton (1995) 11 Cal.4th 1068, 1119 [although testimony established the
defendant had freebased cocaine the day prior to the commission of the crimes,
there was no evidence showing he was intoxicated at the time the crimes
occurred].) To the contrary, the evidence showed that defendant acted in
accordance with a preconceived plan to rob or steal money from Schmiedt, that he
successfully convinced her to let him into her apartment, and that he socialized
with her until he decided to attack her with a hammer that he brought with him.
On this record, the trial court had no sua sponte duty to instruct on the lesser
offense of assault.
3. Failure to Instruct on Theft
Defendant contends that the trial court erred when it failed to instruct sua
sponte on theft and on the definition of the term “steal” in connection with the
elements required for burglary. This error, he claims, was prejudicial and denied
him his state and federal constitutional right to present a defense and rights to a
fair trial, effective assistance of counsel, reliable determinations of guilt and
penalty, due process, and equal protection of the law.
a. Background Facts
The prosecution theorized that defendant went to Schmiedt’s apartment to
steal from her, and that he killed her during the course of a robbery and burglary.
In turn, the defense asserted that defendant went to Schmiedt’s home merely to
con or talk her out of money, that he had no felonious intent to steal, and that
while under the influence of drugs and alcohol he killed her in a fit of rage upon
discovering her betrayal of him.9 To counter the defense’s strategy, the
prosecution argued to the jury that conning was the same as stealing or theft by
false pretenses, and that defendant’s alleged plan to go to Schmiedt’s apartment to
According to the defense, the evidence at most showed that defendant had a
plan to tell Schmiedt that he needed money for diving gear to retrieve “all kinds of
money” from a lake in the State of Washington and that the two would then share
the retrieved money. In reality, however, defendant would “just get the money
and run.” Defendant became enraged and killed Schmiedt after he caught her
going through his personal belongings and discovered she was working with law
enforcement to apprehend him.
con her out of money supported guilt findings on the burglary and first degree
felony-murder counts, and a true finding on the burglary-murder special-
As relevant here, the trial court instructed the jury that the crime of burglary
required proof that, at the time of the entry of the dwelling, defendant “had the
specific intent to steal or take away someone else’s property and intended to
deprive the owner permanently of such property, or at the time of the entry such
person had the specific intent to commit the crime of robbery.”10 Defendant did
not request instructions on the meaning of the word “steal,” or on theft, or on
whether the act of conning constituted theft; consequently, no such instructions
were given. After the jury found defendant guilty on the charged counts, however,
the defense filed a motion for a new trial based in part on the court’s failure to
instruct on theft pursuant to CALJIC No. 14.02.
Preliminarily, we observe that theft is not a necessarily included offense of
burglary, so theft instructions were not required on that basis. (People v. Bernal
(1994) 22 Cal.App.4th 1455, 1458; In re Howe (1955) 135 Cal.App.2d 604, 605.)
Defendant does not argue otherwise.
To the extent defendant asserts the trial court’s burglary instructions were
erroneous or incomplete, such assertion is lacking in merit. First, defendant fails
to identify any incorrect statement of the law within the instructions given.
Second, “if defendant believed the instructions required clarification or
In light of defendant’s theories regarding his intoxication and sudden rage,
the trial court also instructed the jury on voluntary intoxication and the crimes of
second degree murder (§ 189), voluntary manslaughter (sudden quarrel or heat of
passion) (§ 192, subd. (a)), and theft from a corpse (§ 642).
modification, it was incumbent upon him to request it.” (People v. Rodrigues
(1994) 8 Cal.4th 1060, 1140.) Third, and in any event, the word “steal” required
no further clarification; indeed, it has long been recognized that “steal” has “a
fixed and well-defined meaning, and is, perhaps, in its common every-day use and
general acceptation, as well understood as any word in the English language.”
(People v. Lopez (1891) 90 Cal. 569, 572.)11
In claiming the failure to give theft instructions sua sponte was error,
defendant essentially implies that such instructions would have materially differed
from the instructions actually given, and that, had the jury received theft
instructions, it would not have been misled into convicting him of burglary for
entering Schmiedt’s home with the intent to “con” her out of money. We are not
persuaded on either point.
Here, the trial court instructed the jury that “[e]very person who enters a
building with the specific intent to steal, take, or carry away the personal property
of another of any value and with the further specific intent to deprive the owner
permanently of such property, or with the specific intent to commit robbery, a
felony, is guilty of the crime of burglary in violation of Penal Code Section 459.”
The court also instructed that to prove a burglary, “each of the following elements
must be proved: [¶] One, a person entered a building; [¶] Two, at the time of the
The word “steal” is commonly understood as “the general term implying
the taking of another’s money, possessions, etc. dishonestly or in a secret or
surreptitious manner.” (Webster’s New World Dict. (2d ed. 1982) p. 1393; see
also Webster’s 3d New Internat. Dict. (1981) p. 2232 [“to take and carry away
feloniously and usu. unobserved”].) Another common understanding is that to
steal means “to be a thief; practice theft.” (Webster’s New World Dict., supra, p.
1393; see also Webster’s 3d New Internat. Dict., supra, p. 2369 [defining “theft”
as “the act of stealing” and “the taking of property unlawfully (as by robbery,
entry, such person had the specific intent to steal or take away someone else’s
property and intended to deprive the owner permanently of such property, or at the
time of the entry such person had the specific intent to commit the crime of
Although the court did not specifically inform the jury it was instructing on
theft (except for theft from a corpse), the instructions it gave were substantially
similar to the standard instructions for theft that he identified in his motion for a
new trial. CALJIC No. 14.02, which defines theft by larceny, provides: “Every
person who steals, takes, carries, leads, or drives away the personal property of
another with the specific intent to deprive the owner permanently of [his] [her]
property is guilty of the crime of theft by larceny.” (CALJIC No. 14.02 (2004);
see also CALJIC No. 14.02 (5th ed. 1988).) Similarly, the standard instructions
provide that the “specific intent” required for theft “is satisfied by either an intent
to deprive an owner permanently of his or her property, or to deprive an owner
temporarily, but for an unreasonable time, so as to deprive him or her of a major
portion of its value or enjoyment.” (CALJIC No. 14.03 (2004); see also CALJIC
No. 14.02 (5th ed. 1988) [specific intent to permanently deprive].) That the
standard instruction for theft intent substantially mirrors the trial court’s burglary
instruction is no coincidence. As the Use Note accompanying the theft intent
instruction explains: “This instruction, if necessary, can be utilized for theft as
well as other crimes such as burglary or robbery normally requiring an intent to
permanently deprive an owner of property.” (CALJIC No. 14.03 (2004) [Use
Note].) Defendant neglects to address this point, and fails to identify and explain
what other instruction pertaining to theft might have been critical or even helpful
to his case.
In any event, defendant identifies no legal or other authority supporting his
contention that the type of “conning” he supposedly intended would not have
constituted theft. This is not a case where the claimed intended conduct arguably
did not amount to criminal theft because it merely involved the alleged making of
unrealistic promises or the persuading of a victim to make an unwise investment.
At trial, the defense suggested defendant went to Schmiedt’s apartment to tell her
that he needed money for diving gear to retrieve “all kinds of money” from a lake
in the State of Washington. Although Schmiedt might think she could get rich
with defendant, he simply intended to “just get the money and run.”
Even assuming substantial evidence supported this scenario,12 the jury
could infer from the described circumstances that defendant intended to commit
criminal theft. “Every person who shall feloniously steal, take, carry, lead, or
drive away the personal property of another, . . . or who shall knowingly and
designedly, by any false or fraudulent representation or pretense, defraud any
other person of money . . . is guilty of theft.” (§ 484, subd. (a).) An intent to
commit theft by a false pretense or a false promise without the intent to perform
will support a burglary conviction. (E.g., People v. Nguyen (1995) 40 Cal.App.4th
28, 30-31 [false pretenses].) Consequently, we reject the contention that defendant
could not have been found guilty of burglary (or a burglary murder) for merely
intending to “con” Schmiedt out of money in the manner described, as well as the
assertion that the instructional omissions deprived him of a complete and
People v. Failla (1966) 64 Cal.2d 560 (Failla) does not aid defendant’s
position. In Failla, the trial court’s burglary instructions included a reference to a
defendant’s intent and specific intent “to commit theft ‘or any felony’ ” (id. at pp.
Defendant does not provide any record citations showing he introduced
evidence actually supporting this scenario, and our review of the record discloses
no such evidence.
563, 564, italics added), but there the evidence was such that inferences could
have been drawn that the defendant intended to commit one or more felonies (e.g.,
oral copulation or felonious assault), or one or more misdemeanors (e.g., indecent
exposure or battery), or acts that were unseemly but were not crimes (e.g.,
masturbation). (Id. at p. 565.) Under those circumstances, the trial court
prejudicially erred in failing to further instruct which acts, among those which the
jury could infer the defendant intended to commit, amounted to felonies. (Ibid.)
Unlike the situation in Failla, supra, 64 Cal.2d 560, the burglary
instructions in this case did not contain ambiguous language referring to “any
other felony.” And here, the evidence was such that, when defendant entered
Schmiedt’s apartment, he intended to commit no crime other than theft or robbery.
The trial court’s instructions clearly informed the jury that it could convict
defendant of burglary only if it found he entered the apartment with the specific
intent to steal from or rob the victim.
In sum, the claimed omission did not constitute error, prejudicial or
otherwise, and did not violate any of defendant’s state or federal constitutional
4. CALJIC No. 2.15
CALJIC No. 2.15 addresses the inference that may be drawn with regard to
theft-related crimes when a defendant is found in conscious possession of recently
stolen property. At trial, defendant agreed such an instruction should be given, but
proposed a modification that would limit it to the crime of theft and omit reference
to the crimes of robbery and burglary. Finding that defendant’s interests would be
better protected without the proposed modification, the court gave the following
instruction tracking the language of CALJIC No. 2.15 (1989 rev.): “If you find
that the Defendant was in conscious possession of recently stolen property, the
fact of such possession is not by itself sufficient to permit an inference that the
Defendant is guilty of the crime of robbery or burglary. Before guilt may be
inferred, there must be corroborating evidence tending to prove the Defendant’s
guilt. However, this corroborating evidence need only be slight and need not by
itself be sufficient to warrant an inference of guilt. [¶] As corroboration, you may
consider the attributes of possession: Time, place and manner; that the Defendant
had an opportunity to commit the crime charged; the Defendant’s conduct; any
other evidence which tends to connect the Defendant with the crime charged.”
Defendant contends this instruction was erroneous because it (1) lessened
the prosecution’s burden of proof to establish guilt beyond a reasonable doubt and
(2) unfairly favored the prosecution’s theory of the case over that of the defense.
In his view, the error requires reversal of his convictions because it violated his
state and federal constitutional rights to a fair trial, effective assistance of counsel,
a meaningful defense, a reliable determination of guilt and penalty, due process,
and equal protection of the law. We cannot agree.
CALJIC No. 2.15 is properly given in cases in which the defendant’s intent
to steal is contested. (People v. Smithey (1999) 20 Cal.4th 936, 977.) The
instruction does not create a mandatory presumption that operates to shift the
People’s burden of proof to the defense, for the instruction merely permits, but
clearly does not require, the jury to draw the inference described therein. (People
v. Yeoman (2003) 31 Cal.4th 93, 131 [and cases cited].) Perhaps more to the
point, there is nothing in the instruction that directly or indirectly addresses the
burden of proof, and nothing in it relieves the prosecution of its burden to establish
guilt beyond a reasonable doubt. (People v. Prieto (2003) 30 Cal.4th 226, 248.)
In any event, given the court’s other instructions regarding the proper
consideration and weighing of evidence and the burden of proof, there simply “is
‘no possibility’ CALJIC No. 2.15 reduced the prosecution’s burden of proof in this
case.” (Id. at p. 248.)
Moreover, the instruction did not create a permissive presumption that
violated due process, because “ ‘reason and common sense’ ” justified the
suggested conclusion that defendant’s conscious possession and use of recently
stolen property tended to show his guilt of robbery and burglary. (People v.
Yeoman, supra, 31 Cal.4th at p. 131; see Ulster County Court v. Allen (1979) 442
U.S. 140, 157.) Not only did defendant’s conscious possession and use of
Schmiedt’s bankcard and check in the hours and days following the murder tend to
show that he intended to rob or steal from Schmiedt when he went to her
apartment the night of January 1, 1994, but his guilt of the charged offenses was
further supported by the corroborating evidence that he had taken a hammer with
him to the apartment, and that when Josephine Parson later asked defendant if
“ ‘[w]hat happened’ ” was “ ‘[b]ecause she would not give you the money,’ ”
defendant responded, “ ‘[s]omething like that.’ ”
Schwendeman v. Wallenstein (9th Cir. 1992) 971 F.2d 313 does not support
defendant’s constitutional claim. There, the defendant challenged an instruction
that permitted the jury to infer that he drove recklessly, solely from evidence that
he drove in excess of the speed limit. (Id. at p. 316.)13 Schwendeman found the
challenged instruction constitutionally deficient because it told the jury, “in effect,
that it could ignore all the other evidence, consider only the evidence of
The challenged instruction provided: “A person who drives in excess of the
maximum lawful speed at the point of operation may be inferred to have driven in
a reckless manner. [¶] This inference is not binding upon you and it is for you to
determine what weight, if any, such inference is to be given.” (Schwendeman v.
Wallenstein, supra, 971 F.2d at p. 315.)
Schwendeman’s speed, and if it found Schwendeman was exceeding the speed
limit, that was enough to convict him — not of speeding, but of reckless driving.”
(Id. at p. 316.) In stark contrast, the instruction here expressly told the jury that
conscious possession of recently stolen property “is not by itself sufficient to
permit an inference that the Defendant is guilty” of the charged crimes and that
there must be corroborating evidence, albeit only slight, tending to prove his guilt.
Accordingly, CALJIC No. 2.15 does not appear constitutionally deficient under
Finally, defendant contends that, in mentioning only the crimes of robbery
and burglary, the instruction favored the prosecution’s case by suggesting to the
jury that he was more likely guilty of robbery or burglary, rather than the lesser
crime of theft from a corpse. He argues that reversal is mandated because the
instruction deprived him of a valid defense to the charged crimes.
It is correct that CALJIC No. 2.15 generally is appropriate for theft
prosecutions, as well as for robbery and burglary prosecutions. (See People v.
Prieto, supra, 30 Cal.4th at p. 248.) But even assuming the instruction should
have made reference to the crime of theft from a corpse, we find no basis for a
The trial court instructed the jury on the elements of the charged offenses of
murder, robbery, burglary, first degree murder based on a murder committed
during a robbery and burglary, and the lesser offenses of voluntary manslaughter
and theft from a corpse, as well as on the special circumstances of murder in the
commission of robbery and burglary. Consequently, the jury was instructed that
robbery required the elements of force and fear, and that burglary required entry
into a building with a specific intent to steal property or commit robbery, while
theft from a corpse required only willfully and maliciously removing and keeping
valuable items from a dead body. The court also expressly instructed the jury that
it had to find the elements of each offense beyond a reasonable doubt, and that it
could not find defendant guilty of theft from a corpse without first reaching a
unanimous verdict of not guilty on the charges of robbery and burglary. Finally,
the court cautioned the jury to not read into the court’s actions or rulings any
suggestion as to what the jury should find to be the facts or the proper verdict.14
Considering the instructions as a whole, we conclude the jury could not
have misunderstood the challenged instruction as suggesting that defendant was
more likely guilty of robbery and burglary than theft from a corpse. In view of the
instructions, which taken together properly guided the jury’s consideration of the
evidence, and the ample evidence of defendant’s guilt of robbery and burglary,
any error was harmless because it is not reasonably probable that defendant would
have received a more favorable outcome had the instruction included reference to
the lesser offense. (See People v. Prieto, supra, 30 Cal.4th at p. 249 [finding no
prejudice under People v. Watson (1956) 46 Cal.2d 818, 836 where court
erroneously failed to limit its CALJIC No. 2.15 instruction to theft offenses]; see
also People v. Coffman and Marlow (2004) 34 Cal.4th 1, 101 [same].)
The court instructed: “I have not intended by anything that I have said or
done, or by any questions that I may have asked, or by any ruling that I may have
made, to intimate or suggest what you should find to be the facts, or that I believe
or disbelieve any witness. If anything I have done or said seems to so indicate,
you will disregard it and form your own conclusions. [¶] The purpose of the
Court’s instructions is to provide you with the applicable law so that you may
arrive at a just and lawful verdict. Whether some instructions apply will depend
upon what you find to be the facts. [¶] Disregard any instruction which applies to
facts determined by you not to exist. Do not conclude that because an instruction
has been given that I’m expressing an opinion as to the facts.”
5. CALJIC Nos. 1.00, 2.01, 2.21.1, 2.22, 2.27, 2.51, 2.90, and 8.83
Defendant contends the trial court gave several standard instructions that
individually and collectively undermined and impermissibly lessened the
requirement of proof beyond a reasonable doubt: CALJIC Nos. 1.00 (Respective
Duties of Judge and Jury), 2.01 (Sufficiency of Circumstantial Evidence —
Generally), 2.21.1 (Discrepancies in Testimony), 2.22 (Weighing Conflicting
Testimony), 2.27 (Sufficiency of Testimony of One Witness), 2.51 (Motive), 2.90
(Presumption of Innocence — Reasonable Doubt — Burden of Proof), and 8.83
(Special Circumstances — Sufficiency of Circumstantial Evidence — Generally).
We have previously rejected such contentions, because “[e]ach of these
instructions ‘is unobjectionable when, as here, it is accompanied by the usual
instructions on reasonable doubt, the presumption of innocence, and the People’s
burden of proof.’ ” (People v. Kelly (2007) 42 Cal.4th 763, 792 [and cases cited];
see also People v. Howard (2008) 42 Cal.4th 1000, 1025-1026 & fn. 14 [and cases
cited]; People v. Carey (2007) 41 Cal.4th 109, 129-131 [and cases cited]; People
v. Crew (2003) 31 Cal.4th 822, 847-848 [and cases cited].) We do so here, as
Defendant further contends the instructions based on CALJIC Nos. 2.01
and 8.83 created an impermissible mandatory presumption that required the jury to
accept any reasonable incriminatory interpretation of the circumstantial evidence
unless defendant rebutted the presumption producing a reasonable exculpatory
interpretation. We have repeatedly rejected these contentions, too. (E.g., People
v. Morgan (2007) 42 Cal.4th 593, 620; People v. Stewart (2004) 33 Cal.4th 425,
521; People v. Nakahara (2003) 30 Cal.4th 705, 713-714.) Because these
instructions were properly given, there is no merit to defendant’s related
contention that the prosecutor’s arguments based on the language of these
instructions increased their prejudicial impact.
B. Penalty Phase Issues
1. Alleged Prosecutorial Misconduct
Defendant contends the prosecutor’s pervasive and egregious misconduct
during closing penalty phase arguments to the jury deprived him of due process
and a reliable sentence determination. Specifically, he claims the prosecutor
committed prejudicial misconduct by (1) repeatedly denigrating the defense team;
(2) attacking the integrity of defense counsel; (3) urging the jury to disregard
relevant mitigating factors; and (4) mischaracterizing evidence and offering his
own unqualified opinions on expert matters.
The standards governing review of misconduct claims are settled. “A
prosecutor who uses deceptive or reprehensible methods to persuade the jury
commits misconduct, and such actions require reversal under the federal
Constitution when they infect the trial with such ‘ “unfairness as to make the
resulting conviction a denial of due process.” ’ (Darden v. Wainwright (1986) 477
U.S. 168, 181; see People v. Cash (2002) 28 Cal.4th 703, 733.) Under state law, a
prosecutor who uses such methods commits misconduct even when those actions
do not result in a fundamentally unfair trial. (People v. Frye (1998) 18 Cal.4th
894, 969.) In order to preserve a claim of misconduct, a defendant must make a
timely objection and request an admonition; only if an admonition would not have
cured the harm is the claim of misconduct preserved for review. (People v. Earp
(1999) 20 Cal.4th 826, 858.)” (People v. Alfaro (2007) 41 Cal.4th 1277, 1328.)
Notably, defendant made no objection and sought no curative admonition
regarding any of the instances of misconduct raised on appeal. Accordingly, he
has forfeited appellate review of each and every one of these claims. (People v.
Alfaro, supra, 41 Cal.4th at p. 1328.) In any event, we find that none of the claims
warrants relief, for the reasons below.
a. Arguments Concerning Defense Experts
Three mental health experts were called to support defendant’s case in
mitigation: psychologist Larry Nicholas, neuropsychologist John Wicks, and
psychiatrist Albert Globus. Defendant contends the prosecutor sought to prejudice
his case by maligning the integrity of these experts.
With respect to Dr. Nicholas, defendant asserts the prosecutor committed
misconduct by arguing: “Now, Dr. Nicholas is a doctor, he’s not a Ph.D. [¶] He’s
a spin doctor. He’s like these guys you see on TV who go down and talk to the
political reporters, this is what we really want to say, and just kind of spin it
around so it comes out the way they want it.” (Italics added.)
Defendant next complains the prosecutor made the following improper
argument concerning Dr. Wicks: “Let me talk just for a minute about Dr. Wicks.
[¶] You know, in some respects he’s probably our most helpful witness in this area
of the — any problems the defendant might have had. [¶] You know, he was just a
little too glib, a little too self-assured, a little too cocky . . . .” (Italics added.)
Defendant also criticizes the prosecutor’s description of Dr. Globus as
“kind of like a kid with a new toy” and as “being a little too grandiose,” and the
prosecutor’s comments that the doctor was “really a fish out of water” and “just
kind of a glib fellow” whose conclusions amounted to “psychobabble.”
Additionally, he complains the prosecutor ridiculed Dr. Globus’s integrity and his
career choice as a defense expert.
Even assuming these claims were preserved for review, we would reject
them as meritless. Prosecutors are allowed “wide latitude in penalty phase
argument, so long as the beliefs they express are based on the evidence presented.”
(People v. Cook (2006) 39 Cal.4th 566, 613; see People v. Valdez (2004) 32
Cal.4th 73, 133 [prosecutor’s conclusions “may not assume or state facts not in
evidence [citation] or mischaracterize the evidence”].) Although prosecutorial
arguments may not denigrate opposing counsel’s integrity, “harsh and colorful
attacks on the credibility of opposing witnesses are permissible. [Citations.]”
(People v. Arias (1996) 13 Cal.4th 92, 162 [claimed disparagement of defense
expert was not misconduct].) Moreover, a prosecutor “is free to remind the jurors
that a paid witness may accordingly be biased and is also allowed to argue, from
the evidence, that a witness’s testimony is unbelievable, unsound, or even a patent
‘lie.’ ” (Ibid. [prosecutor properly implied that defense expert “ ‘stretch[ed] [a
principle] for a buck’ ”]; see People v. Alfaro, supra, 41 Cal.4th at p. 1328 [“it is
not misconduct to question a defense expert’s veracity”].)
Although the prosecutor misstated the record when he said Dr. Nicholas
was “not a Ph.D,” the rest of his argument concerning the doctor, viewed in
context, properly sought to point out the weaknesses of his testimony and
conclusions, based on the evidence presented.15 Moreover, the prosecutor’s
The prosecutor argued: “He came and testified, and basically he was here
just to give us [defendant’s] life’s history, although it was under the cover of,
perhaps, making a psychological diagnosis. [¶] I don’t think he ever really did it,
but in the process he laid out the basis of his opinion. Um, but basically the point
was that he was able to lay out all this information about Richard Parson and what
a horrible upbringing he had. [¶] But I want to ask you, was it really a reliable
account of Richard Parson? [¶] Dr. Nicholas himself said Mr. Parson was an
inconsistent historian. When you talk to Richard Parson — thirty-three percent of
the information came from Richard Parson and the family whom they drew upon
to get information hadn’t really had any meaningful contact with Richard Parson
in twenty years. [¶] Most of this was just a discussion about ancient history,
things that happened years and years ago. [¶] Really doesn’t have much bearing
on events that took place here in Sacramento at 1000 Fulton Avenue. [¶] So, the
basis of the information that Nicholas was getting is questionable. [¶] On top of
that . . . he speculates those things and he discounts those things that don’t fit nice
and tidily within his theory of what he wants you to think about Richard Parson.
[¶] . . . [¶] Now, it fits more into Mr. Nicholas’s theory of things if Richard Parson
could have been adopted and [Mr. and Mrs. Waters] wanted to adopt him, that
great plan was torn asunder by the fact his parents moved back to Washington. [¶]
(footnote continued on next page)
inaccurate comment was brief and was not used in support of critical or key
points. Under these circumstances, we find no basis to sustain defendant’s claim
of prejudicial misconduct.
Likewise, the prosecutor’s description of Dr. Wicks as being “a little too
glib, a little too self-assured, a little too cocky” was not inappropriate or baseless
name-calling but was tied directly to the evidence indicating Dr. Wicks was
misinformed about a test result: “You know, he was just a little too glib, a little
too self-assured, a little too cocky throwing out all the remarks about the school
system. I wonder how competent he would have been in his opinion if he had
been properly informed about the results of the MRI test. [¶] Remember, he was
told — or made a big production of how Dr. Globus told him the MRI test showed
frontal lobe deficit. Of course, that is what he was finding, so boy we really got it
here. [¶] Maybe his testimony would have been a little different had he not been
so misinformed on that basic premise.” (Italics added.) Defendant concedes on
(footnote continued from previous page)
He has to tear down Mr. and Mrs. Waters and in effect call them liars. [¶] Why
does he do that. Why does he have to do that? [¶] Because he has a picture of Mr.
Parson that he wants to put across to you to show you he was a poorly-treated
person and a deprived child, a growing-up situation so that we all have to feel
sorry for him. [¶] He is not — shouldn’t be held responsible because he was
created by all this evil that went on in his early life. [¶] Now, Dr. Nicholas is a
doctor, he’s not a Ph.D. [¶] He’s a spin doctor. He’s like these guys you see on
TV who go down and talk to the political reporters, this is what we really want to
say, and just kind of spin it around so it comes out the way they want it. [¶] This
tale of sad childhood is so you will somehow divert the responsibility for the death
of Theresa Schmiedt, [to] his mother, to his father to somebody drinking forty or
fifty years ago, to the hard times in Iowa, to booze, something besides Richard
Parson — something besides Richard Parson. [¶] To try to make you forget the
mess that Richard Parson has made out of his life, to blame it on someone else.”
appeal that Dr. Wicks incorrectly recalled what Dr. Globus told him about the
MRI finding, but he asserts the prosecutor improperly implied that Dr. Wicks
based his neuropsychological evaluation on what Dr. Globus told him.
Defendant’s interpretation of the prosecutor’s argument, however, is refuted by the
italicized language in the above-quoted passage, and it appears the prosecutor was
simply commenting on Dr. Wicks’s level of confidence in his own finding of
frontal lobe damage after having incorrectly recalled an independent but similar
finding by Dr. Globus.
The prosecutor’s arguments pertaining to Dr. Globus also were based on
the evidence. In addressing the doctor’s reliance on PET (positron emission
tomography) and MRI (magnetic resonance imaging) scans in finding organic
brain damage, the prosecutor argued: “We turn to Dr. Globus, who is kind of like
a kid with a new toy. Remember, it’s only been in use in Sacramento and in the
country maybe five or six years. It’s a relatively new thing. [¶] We have to be
wary that, perhaps, Dr. Globus is being a little too grandiose about the capability
of this machine and his capability to interpret what that machine can reveal.” The
prosecutor also commented that Dr. Globus was “really a fish out of water” and
“just kind of a glib fellow” whose conclusions amounted to “psychobabble.”
Finally, in addressing the doctor’s career choice after leaving a job at U.C. Davis,
the prosecutor remarked: “That’s a darn good job at UC Davis. What does he do,
he resigns. [¶] Where does that private practice come from, what does that do?
He has got thirty patients he hardly ever sees. Why is that? He had found he can
make a living working in court. [¶] There are people who will hire him to come in
here and give these offhanded, glib opinions to try and make Richard Parson, who
are just basically criminals, into the sort of person who has a brain problem that
we should all feel sorry about. [¶] And you can understand why because, you
know, for seeing a guy for four hours, talking to Richard Parson for four hours and
writing a report, Dr. Globus is going to get paid nine or ten-thousand dollars.
That’s not too bad. [¶] . . . [¶] There is — really, Dr. Globus is kind of, I would
say, describing his medical career, he’s a washed-up doctor who has now just
become a professional witness. And that only works if you say things that your
clients want to hear.”
We conclude that none of the identified comments relating to these three
defense experts constituted misconduct. By and large, the prosecutor’s comments
merely cautioned the jury to carefully scrutinize their testimony and to examine
the source and content of the information providing the bases of their opinions.
Although many of the remarks were unflattering (e.g., “a spin doctor,” “glib,”
“cocky,” “grandiose,” “a fish out of water,” “psychobabble”), the prosecutor was
entitled to argue vigorously and use appropriate epithets based on inferences and
deductions drawn from the evidence. (People v. Hill (1998) 17 Cal.4th 800, 819;
see People v. Valdez, supra, 32 Cal.4th at p. 134.)
We observe, however, that even though the prosecutor could and did
properly argue to the jury that Dr. Globus may have been biased given his status as
a paid witness (People v. Arias, supra, 13 Cal.4th at p. 162), his one reference to
Dr. Globus as “a washed-up doctor” was inappropriate because it did not appear
tied to any evidence. Nonetheless, the comment was not misconduct, prejudicial
or otherwise, because it was isolated in nature and did not render the trial
fundamentally unfair. (Darden v. Wainwright, supra, 477 U.S. at p. 181; see
People v. Cash, supra, 28 Cal.4th at p. 733.) Moreover, the comment did not
amount to the use of deceptive or reprehensible methods for purposes of
persuasion (People v. Cash, supra, 28 Cal.4th at p. 733; People v. Frye, supra, 18
Cal.4th at p. 969), and there is no reasonable possibility the comment influenced
the penalty verdict (People v. Lenart (2004) 32 Cal.4th 1107, 1130; People v.
Cunningham (2001) 25 Cal.4th 926, 1019).
b. Remarks Concerning Defense Counsel
Defendant also contends the prosecutor attacked the integrity of defense
counsel during closing argument for (1) their hiring of Dr. Globus and (2) their
putting a “subtle little spin on things” by attempting to shift responsibility for
Schmiedt’s death from defendant to the government.
Even assuming these claims were preserved for review, we would find no
misconduct. With regard to the first claim, defendant once again focuses on the
portion of the closing argument where the prosecutor commented that Dr. Globus
resigned from his job at U.C. Davis and then remarked the doctor “had found he
can make a living working in court. [¶] There are people who will hire him to
come in here and give these offhanded, glib opinions to try and make Richard
Parson, who are just basically criminals, into the sort of person who has a brain
problem that we should all feel sorry about.” To the extent this argument can even
be understood to refer to defense counsel, there was nothing inappropriate about it.
(People v. Arias, supra, 13 Cal.4th at p. 182 [“[a]n argumentative reminder that
defense counsel may have chosen Dr. Globus [for an expert opinion that was
implausible but favorable to the defendant’s case] is not equivalent to an
insinuation that counsel suborned perjury or engaged in deception”].)16
As for the second claim, the prosecutor’s argument stated in full: “And I
just couldn’t believe it when I heard [defense counsel] suddenly suggesting that
maybe the death of Theresa Schmiedt was the responsibility of Curt Ellingson of
the United States Marshal’s Office because they asked her to help them. [¶] Isn’t
that another just a subtle little spin on things? [¶] It’s not Richard Parson’s fault
Dr. Globus also testified as a defense expert at the penalty phase in People
v. Arias, supra, 13 Cal.4th 92.
that he battered Theresa Schmiedt’s head to smithereens, it’s somehow the
government’s fault because they were asking her to help them.” (Italics added.)
Again, no misconduct appears. The prosecutor offered this argument after
defense counsel made an argument that focused the jury’s attention on the
question of “the government’s role” in the case. Noting the failure of the United
States Marshal’s Office to designate defendant as dangerous, defense counsel
argued: “I think it’s important to ask what the government’s role was in this
because certainly, um, Deputy US Marshal Ellingson was in a position, and his
office was in a position to know whether this was appropriate conduct, or an
appropriate situation to put Ms. Schmiedt in, something that was appropriate to
ask her to do.” Thus, the “subtle little spin” comment was a fair response to
defense counsel’s argument implying that the government may have been at least
partially at fault for what happened. (See People v. Cook, supra, 39 Cal.4th at p.
613 [prosecutorial reference to defense’s “heavy spin” on the evidence was not
c. Argument Pertaining to Mitigating Evidence
Defendant argues the prosecutor violated the law and deprived him of a fair
penalty determination by telling the jury that its job as a sentencing body was not
to consider his background or other relevant mitigating evidence, but solely to
seek justice for the victim’s death. Specifically, he refers to the prosecutor’s
argument that “the question for you folks is what should be the punishment for the
murder of and the murderer of Theresa Schmiedt. That’s the question here. [¶]
. . . [¶] We are not here to decide why crime occurred. We are not here to decide
how personalities develop over fifty-three years, whether you have an alcoholic
mother, you are predestined to kill someone fifty-three years later. [¶] We are not
here to decide that. [¶] We are here to decide what is the appropriate punishment
for Theresa Schmiedt. [¶] And there are two compelling reasons that I say
virtually dictate the answer to that question that — that really leave you with no
choice. And that’s the nature of the crime and the nature of the killer as shown by
his criminal-conviction history. This is a brutal killing by a lifelong criminal. [¶]
What else can we do with him for what he’s done and the way he has lived.”
Even assuming this claim was preserved for review, the prosecutor did not
exceed the bounds of proper argument. As the record discloses, the prosecutor
first addressed all the aggravating factors, including the circumstances of the crime
and defendant’s ten prior felony convictions. He then pointed out the lack of
evidence supporting the defense’s “rage killing” theory. When the prosecutor next
turned to the defense’s mitigating evidence, he did not urge the jury to disregard or
ignore such evidence. Instead, he remarked that “the mitigating effect of [the
defense’s] evidence gets washed out because when you look at it as a whole for
every step forward they took — one step forward they took, they ended up
stepping back one.” After reminding the jury of various facts that undercut the
mitigating force of defendant’s background evidence, the prosecutor again argued:
“[S]o the mitigating evidence that they have tried to present, at least in terms of his
life history, for everything they can try and say is good about him is offset by
something bad, to the point to where the mitigating evidence in that regard just
washes out. And it has no force and effect. [¶] When you weigh it, then, in the
balance which the judge will instruct you, there is just no weight to it, it just
doesn’t have any kind of picture that is deserving of sympathy or deserving of any
mitigating effect as far as Richard Parson and the punishment that he deserves for
his crime.” Subsequently, the prosecutor reviewed the testimony of defendant’s
mental health experts and, after highlighting what he viewed as weaknesses, told
those jurors who might be “having difficulty” in voting for a death sentence to ask
themselves: “Are you concerned because of your own personal qualms, or is it
something really based on the evidence. [¶] Is there something about this evidence
that tells you that Richard Parson shouldn’t be punished in the ultimate fashion, in
the most serious fashion known to the law? [¶] Is there something really there that
strikes you as so mitigating that the appropriate punishment is . . . life without
Contrary to defendant’s contention, the record does not reflect that the
prosecutor told or otherwise suggested to the jury that its job was not to consider
defendant’s background or other relevant mitigating evidence. Rather, the record
confirms that the prosecutor consistently and properly argued to the jury that,
based on the evidence presented, it could and should conclude that defendant’s
evidence was not sufficiently mitigating so as to outweigh the heinous nature of
the crimes committed or the other factors in aggravation. (People v. Sims (1993) 5
Cal.4th 405, 464; see People v. Seaton (2001) 26 Cal.4th 598, 682 [“the prosecutor
did not ask the jury to ignore defendant’s mitigating evidence, but merely argued
that the circumstances of the murder outweighed that evidence”].) No misconduct
d. Factual Statements, Evidentiary Characterizations, and
Defendant argues the prosecutor committed misconduct by misstating facts,
mischaracterizing the evidence, and injecting his own personal opinions regarding
the mental health evidence. The prosecutor’s deliberate misrepresentation of the
evidence, he argues, denied him his state and federal constitutional rights to a fair
trial, impartial jury, effective assistance of counsel, freedom from cruel and
unusual punishment, equal protection, and due process of law.
Although the prosecutor argued that marks found on Schmiedt’s neck
demonstrated defendant’s intent to strangle and kill her, he also argued that
defendant was “[m]aybe trying to feel for a pulse in her neck” so that “if she isn’t
dying,” he could “hit her again because he wanted her dead. [¶] Isn’t that
thoughtful premeditation and deliberate conduct.” Defendant claims this latter
argument misrepresented Dr. Reiber’s cross-examination testimony that (1) given
the number and severity of the blows to Schmiedt’s head, a rage-induced
“overkill” may have occurred; and (2) the neck marks reflected “partial
strangulation” that “probably would have occurred fairly early in the entire
episode, and perhaps as part of the initial attempt to restrain the individual so that
blows [to the head] could be administered.”
Even assuming this claim was preserved for review, we see no basis for a
finding of misconduct. The prosecutor’s argument rested on inferences drawn
from Dr. Reiber’s testimony, and the record does not support defendant’s charge
of prosecutorial misrepresentation. (People v. Valdez, supra, 32 Cal.4th at pp.
133-134.) Dr. Reiber clearly explained that a rage-induced “overkill” was but one
theory indicated by the physical evidence,17 and he expressly stated his testimony
regarding the circumstances of the strangulation was something he “could easily
envision” but was simply “[a] hypothetical scenario.” Notably, the doctor was not
asked whether the neck marks could not have resulted from an attempted pulse-
checking, so his testimony did not rule that out as an alternative possible scenario.
Dr. Reiber did, however, testify that Schmiedt’s skull had been shattered by one of
the first head blows, which would have rendered her unconscious. He also
testified that all but maybe one of the head blows were likely delivered pre-
mortem, and he agreed with the prosecution that a person might check for a pulse
Dr. Reiber also testified it would not be surprising to see similar injuries
associated with an assailant who was under the influence of drugs.
to ascertain whether a victim who was injured but not moving or responding was
in fact dead. Contrary to defendant’s contention, the evidence presented was
susceptible to the interpretation that Schmiedt was rendered unconscious after the
first head blow, that defendant may have checked for a pulse at that point and may
have pressed hard enough on her neck to leave marks, and that defendant then
continued bashing at her skull to make sure she was dead. No misconduct
Defendant next contends the prosecutor misrepresented the testimony and
expert finding of Dr. Wicks that defendant was mild to moderately impaired, and
improperly injected his own unqualified opinion on the matter. He claims the
prosecutor misled the jury in arguing that defendant was a malingerer and that Dr.
Wicks’s finding of impairment could not be trusted because defendant likely faked
his illness. In particular, defendant asserts the prosecutor lied when he told the
jury that defendant faked chest pains in 1986, and that the doctor who examined
him in 1986 said, “ ‘Hey, this guy is just faking it, there is nothing wrong.’ ” To
support the claim of misconduct, defendant refers to Dr. Globus’s cross-
examination testimony that, according to 1986 records, defendant’s condition at
that time was serious enough to warrant a CT (computerized tomography) scan
and three days of hospitalization. Defendant further argues the prosecutor
substituted his own unqualified opinion of the evidence when he argued that all
the tests really showed was “a little bit of slowing in thinking,” and that
defendant’s actual impairment was “meaningless in the context we have here” and
“not really a biggie.”
To the extent defendant further contends, without additional elaboration,
that this alleged misconduct “deprived [him] of lingering doubt,” we reject the
contention for the same reason above.
Even assuming these claims were preserved for review, our review of the
record discloses no misconduct. In challenging the significance of Dr. Wicks’s
finding that defendant was mild to moderately impaired, the prosecutor properly
referred to the evidence that defendant, at the time of Schmiedt’s murder, engaged
in a number of activities demonstrating he “can get along just fine.” As the
prosecutor pointed out, defendant appeared to have no trouble when he used the
telephone, talked the victim into letting him into her apartment, “socialized with
the victim enough to get her to feel comfortable so that she becomes more
vulnerable to his attack,” went from Sacramento to Stockton after the murder,
figured out the victim’s ATM pin number to gain access to her bank accounts,
checked into a motel, and then fled from the motel and got all the way to
Vancouver, Washington to escape apprehension. Given such evidence, the
prosecutor did not mislead the jury or otherwise offer an unqualified opinion when
he argued, among other things, “We really have to wonder if there is really any
deficit at all. [¶] If there is, it’s not much and it’s really meaningless in the context
we have here.”
As for the prosecutor’s argument that a doctor “said” in 1986 that defendant
was “ ‘just faking it, there is nothing wrong,’ ” it appears he was referring to the
circumstances that a 1986 medical record indicated that the examining doctor was
suspicious of malingering, that the doctor nonetheless ordered tests for defendant,
and that the test results came back negative. Although we do not condone this
particular argument to the extent it inaccurately equated the examining doctor’s
suspicions of malingering with an actual medical conclusion that defendant was
“just faking it,” it had no conceivable impact on the verdict and was, at most,
harmless prosecutorial hyperbole. (See People v. Sully (1991) 53 Cal.3d 1195,
1235 [addressing claimed factual inaccuracies in prosecutor’s guilt phase
Finally, defendant argues the prosecutor made a number of unfounded
assumptions regarding Dr. Globus’s findings concerning defendant’s PET and
MRI results. Among other things, he challenges the prosecutor’s argument that “a
hypometabolism in the right temporal lobe and asymmetry is not that big a kind of
deal. It’s like being right-handed or left-handed. One hand may be stronger than
the other.” He also claims the prosecutor mischaracterized the evidence when he
suggested that the PET and MRI scans did not indicate “mental damage,” and that
the doctor who actually performed the scans did not specify that a defect existed.
Even if this claim was preserved for review, we would reject it on the
merits. Taken in context, the prosecutor’s remarks constituted fair comment on
the state of the expert testimony. For instance, Dr. Globus agreed it was
“possible” that “this asymmetry has no effect whatsoever on [defendant’s]
behavior.” With regard to asymmetry, the doctor also agreed it generally was “a
matter of degree . . . that may account for some functional deficit,” and that “the
greater the difference” between the two sides, “the more likely it is to be
abnormal.” On this point, Dr. Globus admitted “the difference is not large here,”
and he further agreed it was possible to describe defendant’s hippocampus
structure as showing that one side was “different” from the other, instead of
characterizing the structure as “abnormal.” He also conceded that “most people
who have some kind of brain deterioration or damage are able to control their
aggressive impulses.” In light of Dr. Globus’s equivocal testimony, the
challenged arguments were proper.
e. Ineffective Assistance of Counsel and Cumulative Prejudice
Because the prosecutor did not commit misconduct in making any of the
arguments challenged on appeal, defense counsel did not render ineffective
assistance in failing to object or seek admonishment with respect to those
Having rejected each of defendant’s claims of prosecutorial misconduct, we
reject his further claim that the cumulative impact of the alleged misconduct
resulted in prejudice and deprived him of a fair trial and due process. (People v.
Alfaro, supra, 41 Cal.4th at p. 1330; People v. Valdez, supra, 32 Cal.4th at p. 136.)
2. Intercase Proportionality
Defendant contends that California’s failure to provide for intercase
proportionality review in capital cases violates his federal constitutional right to be
protected from the arbitrary and capricious imposition of capital punishment.
We have held, on numerous occasions, that intercase proportionality review
is not constitutionally required in this state. (People v. Kelly, supra, 42 Cal.4th at
p. 800 [and cases cited]; People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1067
[and cases cited]; People v. Stitely (2005) 35 Cal.4th 514, 574 [and cases cited];
see Pulley v. Harris (1984) 465 U.S. 37, 50-51.)
Although defendant’s death sentence is theoretically subject to intracase
proportionality review (People v. Stitely, supra, 35 Cal.4th at p. 574), he does not
appear to raise such a claim. In any case, the sentence is not grossly
disproportionate to defendant’s moral culpability.
3. California’s Death Penalty Statute and Related Instructions
Defendant claims California’s death penalty statute and the jury
instructions thereunder are constitutionally flawed for numerous reasons. We
affirm the decisions that have rejected identical claims, as follows.
As applied, section 190.3, factor (a), does not result in the arbitrary and
capricious imposition of the death penalty. (People v. Alfaro, supra, 41 Cal.4th at
pp. 1330-1331; People v. Smith (2005) 35 Cal.4th 334, 373; People v. Brown
(2004) 33 Cal.4th 382, 401.)
The trial court need not delete inapplicable sentencing factors from its
instructions. (People v. Kelly, supra, 42 Cal.4th at p. 801; People v. Stitely, supra,
35 Cal.4th at p. 574; People v. Yeoman, supra, 31 Cal.4th at pp. 164-165.)
“The trial court did not commit constitutional error by failing to instruct
that statutory mitigating factors were relevant only in mitigation. [Citations.]
Moreover, ‘the statutory instruction to the jury to consider “whether or not”
certain mitigating factors were present did not impermissibly invite the jury to
aggravate the sentence upon the basis of nonexistent or irrational aggravating
factors. [Citations.]’ ” (People v. Beames (2007) 40 Cal.4th 907, 935; People v.
Gray (2005) 37 Cal.4th 168, 236.)
Section 190.3’s use of adjectives such as “extreme” and “substantial”
within the list of mitigating factors did not impermissibly limit the jury’s
consideration of such factors. (People v. Kelly, supra, 42 Cal.4th at p. 801; People
v. Beames, supra, 40 Cal.4th at p. 934.)
The failure of the court’s instruction to require specific written findings by
the jury with regard to the aggravating factors found and considered in returning a
death sentence did not violate defendant’s constitutional rights to meaningful
appellate review and equal protection of the law. (People v. Stitely, supra, 35
Cal.4th at p. 574; see also People v. Morgan, supra, 42 Cal.4th at p. 627; People v.
Stevens (2007) 41 Cal.4th 182, 212; People v. Carey, supra, 41 Cal.4th at p. 136.)
“ ‘[C]apital and noncapital defendants are not similarly situated and
therefore may be treated differently without violating constitutional guarantees of
equal protection of the laws or due process of law.’ ” (People v. Stevens, supra,
41 Cal.4th at p. 212; see also People v. Carey, supra, 41 Cal.4th at pp. 136-137.)
The death penalty statute is not unconstitutional for failing to assign a
burden of proof and standard of proof for finding aggravating and mitigating
circumstances in reaching a penalty determination. (People v. Beames, supra, 40
Cal.4th at p. 935; People v. Lewis and Oliver, supra, 39 Cal.4th at p. 1066; People
v. Stitely, supra, 35 Cal.4th at p. 573.)
The jury need not agree unanimously as to aggravating factors, or make
specific findings or find beyond a reasonable doubt that aggravating factors exist
(except for other unadjudicated violent criminal activity), that such factors
outweigh mitigating factors, or that death is the appropriate punishment. (People
v. Morgan, supra, 42 Cal.4th at pp. 626-627; People v. Stevens, supra, 41 Cal.4th
at p. 212; People v. Beames, supra, 40 Cal.4th at p. 934.) Nothing in Apprendi v.
New Jersey (2000) 530 U.S. 466, Ring v. Arizona (2002) 536 U.S. 584, or Blakely
v. Washington (2004) 542 U.S. 296, casts doubt on these conclusions. (People v.
Mendoza (2007) 42 Cal.4th 686, 707; People v. Ramirez (2006) 39 Cal.4th 398,
475; People v. Stitely, supra, 35 Cal.4th at p. 573.)
Even in the absence of an explicit instruction to the contrary, it was not
reasonably likely the jury believed it was bound by the reasonable doubt
instruction given during the guilt phase in deciding whether evidence can count in
defendant’s favor as mitigating. “On the contrary, because the trial court
instructed specifically that the reasonable doubt standard applied [to whether the
jury could consider defendant’s alleged prior unadjudicated violent criminal
activity as an aggravating factor], and mentioned nothing about mitigating factors,
the reasonable juror would infer that no such reasonable doubt standard applied to
mitigating factors.” (People v. Welch (1999) 20 Cal.4th 701, 767.)19
The trial court mistakenly instructed the jury that defendant’s alleged prior
convictions had to be proven beyond a reasonable doubt. This misstatement of the
(footnote continued on next page)
In light of the moral and normative nature of the jury’s sentencing
determination, the trial court need not instruct that the prosecution bears the
burden of persuasion on the issue of penalty. (People v. Smith (2007) 40 Cal.4th
483, 526; People v. Combs (2004) 34 Cal.4th 821, 868; People v. Lenart, supra,
32 Cal.4th at p. 1136.)
The trial court’s failure to instruct the jury on the presumption of life did
not violate defendant’s constitutional rights to due process, to be free from cruel
and unusual punishment, to a reliable determination of his sentence, and to equal
protections of the laws. (People v. Abilez (2007) 41 Cal.4th 472, 532; see also
People v. Kelly, supra, 42 Cal.4th at p. 800; People v. Stitely, supra, 35 Cal.4th at
The trial court properly instructed the jury with CALJIC No. 8.88, a
standard penalty phase instruction defining the scope of the jury’s sentencing
discretion and the nature of its deliberative process. The instruction was not
constitutionally deficient or impermissibly vague because (1) it used the phrase
“so substantial” to compare aggravating factors with the mitigating factors; (2) it
failed to instruct the jury that, if it determined the factors in mitigation outweigh
the factors in aggravation, it was required to return a sentence of life without
possibility of parole; and (3) it failed to inform the jury that defendant did not have
the burden to persuade it that the death penalty was inappropriate. (People v.
(footnote continued from previous page)
law, however, inured to defendant’s benefit and does not detract from our
conclusion above. (See People v. Welch, supra, 20 Cal.4th at p. 766 [reaching
same conclusion where trial court mistakenly instructed that any factor in
aggravation had to be proven beyond a reasonable doubt].)
Geier (2007) 41 Cal.4th 555, 618-619 [and cases cited]; see also People v. Kelly,
supra, 42 Cal.4th at p. 800; People v. Carter (2003) 30 Cal.4th 1166, 1226.)
4. International Law
The California death penalty statute does not violate international law,
specifically, the International Covenant on Civil and Political Rights, even
assuming defendant has standing to invoke this covenant. (People v. Ramirez,
supra, 39 Cal.4th at p. 479 [and cases cited]; see also People v. Morgan, supra, 42
Cal.4th at pp. 627-628 [and cases cited]; People v. Roldan, supra, 35 Cal.4th at p.
5. Cumulative Error
Defendant contends the cumulative effect of the errors in both the guilt
phase and the penalty phase requires reversal of his convictions and death
sentence. Not so. We have concluded that all of the claimed errors are either
meritless or do not require reversal. Whether we consider such claims
individually or together, we find no prejudicial error at either phase of the
For the reasons stated above, we find no reversible error in the record. The
judgment of death is affirmed.
CONCURRING OPINION BY KENNARD, J.
I concur fully in the majority opinion. I write separately to suggest a
simpler ground on which to reject defendant’s claim that the trial court erred in
failing to instruct on assault as a lesser included offense of robbery and/or
burglary. (See maj. opn., ante, at pp. 16-21.)
The purpose of instructing on lesser offenses is to provide the jury with
verdict options that are consistent with the evidence presented at trial. “Just as the
People have no legitimate interest in obtaining a conviction of a greater offense
than that established by the evidence, a defendant has no right to an acquittal when
that evidence is sufficient to establish a lesser included offense.” (People v.
Sedeno (1974) 10 Cal.3d 703, 716; accord, People v. Breverman (1998) 19 Cal.4th
142, 155.) Accordingly, a trial court must instruct on a lesser included offense
“only when evidence exists that would justify a conviction on the lesser offense.”
(People v. Yeoman (2003) 31 Cal.4th 93, 129.)
Here, no instruction on assault was required because defendant did not
merely assault victim Theresa Schmiedt, he killed her. If defendant did not form
the specific intent to steal until after he had killed her, as the defense argued at
trial, then he was guilty of at least manslaughter, and not merely assault. Because
there was no substantial evidence that defendant’s assaultive conduct was not the
cause of her death, the offense was not less than manslaughter, and no instruction
on assault was required.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Parson
Original Appeal XXX
Opinion No. S056765
Date Filed: July 10, 2008
Judge: Michael T. Garcia
Attorneys for Appellant:
Pamala Sayasane, under appointment by the Supreme Court, for Defendant and Appellant.
Attorneys for Respondent:
Bill Lockyer and Edmund G. Brown. Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney
General, Mary Jo Graves, Assistant Attorney General, Eric L. Christoffersen and Charles A. French,
Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
660 4th Street, No. 341
San Francisco, CA 94107
Charles A. French
Deputy Attorney General
1300 I Street
Sacramento, CA 94244-2550
Automatic appeal from a judgment of death.
|Date:||Citation:||Docket Number:||Category:||Status:||Cross Referenced Cases:|
|Thu, 07/10/2008||44 Cal. 4th 332, 187 P.3d 1, 79 Cal. Rptr. 3d 269||S056765||Automatic Appeal||closed; remittitur issued|| |
PARSON (RICHARD) ON H.C. (S153902)
|1||The People (Respondent)|
Represented by Attorney General - Sacramento Office
Charles French, Supervising Deputy Attorney General
P.O. Box 944255
|2||Parson, Richard Ray (Appellant)|
San Quentin State Prison
Represented by Pamala Sayasane
Attorney at Law
660 Fourth St., No. 341
San Francisco, CA
|Jul 10 2008||Opinion: Affirmed|
|Oct 11 1996||Judgment of death|
|Oct 18 1996||Filed certified copy of Judgment of Death Rendered|
|May 7 2002||Filed:|
Request by counsel for dual representation appointment.
|May 8 2002||Filed:|
Request by inmate for dual representation.
|May 22 2002||Counsel appointment order filed|
Upon request of appellant for appointment of counsel, Pamala Sayasane is hereby appointed to represent appellant Richard Ray Parson for both the direct appeal and related state habeas corpus/ executive clemency proceedings in the above automatic appeal now pending in this court. George, C.J., and Baxter, J., were absent and did not participate.
|May 22 2002||Compensation awarded counsel|
|Jun 7 2002||Received:|
notice from superior court, dated 6/5/2002, advising record transmitted to applt.'s counsel that date.
|Jul 24 2002||Counsel's status report received (confidential)|
from atty Sayasane.
|Sep 4 2002||Request for extension of time filed|
by applt to request correction of the record. (1st request)
|Sep 6 2002||Extension of time granted|
To 11/7/2002 to appellant to request correction of the record. The court anticipates that after that date, only two further extensions totaling 120 additional days will be granted. Counsel is ordered to inform the Sacramento County Superior Court and his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record of this schedule, and take all steps necessary meet it. Counsel for appellant is ordered to serve a copy of the record correction motion on this court upon its filing in the superior court.
|Sep 26 2002||Counsel's status report received (confidential)|
|Oct 30 2002||Request for extension of time filed|
By appellant to request correction of the record. (2nd request)
|Nov 4 2002||Extension of time granted|
To 1/6/2003 to appellant to request correction of the record. The court anticipates that after that date, only one further extension totaling 60 additional days will be granted Counsel is ordered to inform the Sacramento County Superior Court and his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record of this schedule, and take all steps necessary to meet it. Counsel for appellant is ordered to serve a copy of the record corection motion on this court upon its filing in the superior court.
|Nov 26 2002||Counsel's status report received (confidential)|
|Jan 2 2003||Request for extension of time filed|
by appellant to request correction of the record. (3rd request)
|Jan 8 2003||Extension of time granted|
To 3/7/2003 to appellant to request correction of the record. The court anticipates that after that date, no further extension will be granted. Counsel is ordered to inform the Sacramento County Superior Court and his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and take all stepns necessary to meet it. Counsel for appellant is ordered to serve a copy of the record correction motion on this court upon its filing in the superior court.
|Jan 29 2003||Counsel's status report received (confidential)|
|Mar 3 2003||Request for extension of time filed|
by appellant to request correction of the record. (4th request)
|Mar 5 2003||Extension of time granted|
to 4/7/2003 to appellant to request correction of the record. Extension is granted based upon counsel Pamala Sayasane's representation that she anticipates filing that request in the superior court by 4/7/2003. After that date, no further extension will be granted. Counsel for appellant is ordered to serve a copy of the record correction motion on this court upon its filing in the superior court.
|Mar 25 2003||Counsel's status report received (confidential)|
|Apr 3 2003||Request for extension of time filed|
by appellant to request correction of the record. (5th request)
|Apr 8 2003||Extension of time granted|
to 4/21/2003 to appellant to request correction of the record. Extension is granted based upon counsel Pamala Sayasane's representation that she anticiaptes filing that request in the superior court by 4/21/2003. After that date, no further extension will be granted. Counsel for appellant is ordered to serve a copy of the record correction motion on this court upon its filing in the superior cour
|Apr 21 2003||Received copy of appellant's record correction motion|
Motion to augment, examine sealed transcripts, and correct the record on appeal. (10 pp.)
|Jun 4 2003||Counsel's status report received (confidential)|
|Jun 11 2003||Compensation awarded counsel|
|Jul 29 2003||Counsel's status report received (confidential)|
|Sep 29 2003||Counsel's status report received (confidential)|
|Nov 26 2003||Counsel's status report received (confidential)|
|Jan 30 2004||Counsel's status report received (confidential)|
|Feb 18 2004||Compensation awarded counsel|
|Feb 24 2004||Change of Address filed for:|
appellant's counsel, Pamala Sayasane.
|Mar 8 2004||Note:|
certified record received from superior court.
|Mar 11 2004||Note:|
certified record returned to superior court for correction of C.T. and R.T. index and juror-identifying information.
|Mar 15 2004||Filed:|
Declaration of attorney Pamala Sayasane in support of request for progress payment (confidential).
|Mar 17 2004||Compensation awarded counsel|
|Apr 1 2004||Counsel's status report received (confidential)|
|Apr 23 2004||Record on appeal filed|
Clerk's Transcript 20 volumes (5,847 pages) and Reporter's Transcript 13 volumes (3,458 pages) including material under seal; ASCII disks. Clerk's Transcript includes 1,680 pp of juror questionnaires.
|Apr 23 2004||Appellant's opening brief letter sent, due:|
June 2, 2004
|Apr 27 2004||Compensation awarded counsel|
|May 24 2004||Request for extension of time filed|
to file appellant's opening brief. (1st request)
|May 27 2004||Counsel's status report received (confidential)|
from atty Sayasane.
|May 27 2004||Filed:|
Amended application for extension of time to file appellant's opening brief.
|May 27 2004||Extension of time granted|
to 8/2/2004 to file appellant's opening brief.
|Jul 27 2004||Counsel's status report received (confidential)|
from atty Sayasane.
|Jul 27 2004||Request for extension of time filed|
to file appellant's opening brief. (2nd request)
|Jul 30 2004||Extension of time granted|
to 10-1-2004 to file AOB.
|Sep 8 2004||Compensation awarded counsel|
|Sep 28 2004||Counsel's status report received (confidential)|
from atty Sayasane.
|Sep 28 2004||Request for extension of time filed|
to file AOB. (3rd request)
|Sep 29 2004||Extension of time granted|
to 11-30-2004 to file AOB.
|Nov 19 2004||Request for extension of time filed|
to file appellant's opening brief. (4th request)
|Nov 22 2004||Extension of time granted|
to 1/31/2005 to file appellant's opening brief.
|Dec 3 2004||Counsel's status report received (confidential)|
|Jan 5 2005||Compensation awarded counsel|
|Jan 26 2005||Request for extension of time filed|
to file appellant's opening brief. (5th request)
|Jan 28 2005||Extension of time granted|
to 4/1/2005 to file appellant's opening brief. Extension is granted based upon counsel Pamala Sayasane's representation that she anticipates filing that brief by 4/1/2005. After that date, no furhter extension is contemplated.
|Jan 31 2005||Counsel's status report received (confidential)|
|Mar 21 2005||Appellant's opening brief filed|
(54,641 words; 207 pp.)
|Mar 23 2005||Compensation awarded counsel|
|Mar 29 2005||Counsel's status report received (confidential)|
from atty Sayasane.
|Apr 12 2005||Request for extension of time filed|
to file respondent's brief. (1st request)
|Apr 15 2005||Extension of time granted|
to 6/20/2005 to file respondent's brief.
|May 4 2005||Compensation awarded counsel|
|Jun 7 2005||Counsel's status report received (confidential)|
|Jun 13 2005||Request for extension of time filed|
to file respondent's brief. (2nd request)
|Jun 14 2005||Filed:|
Supplemental application for extension of time to file respondent's brief.
|Jun 21 2005||Extension of time granted|
to 8/19/2005 to file respondent's brief. After that date, only one further extension totaling about 60 additional days is contemplated. Extension is granted based upon Supervising Deputy Attorney General Charles A. French's representation that he anticipates filing that document by 10/20/2005.
|Jul 28 2005||Counsel's status report received (confidential)|
|Aug 3 2005||Counsel's status report received (confidential)|
|Aug 11 2005||Request for extension of time filed|
to file respondent's brief. (3rd request)
|Aug 18 2005||Extension of time granted|
to 10/20/2005 to file respondent's brief. Extension is granted based upon Supervising Deputy Attorney General Charles A. French's representation that he anticipates filing that brief by 10/20/2005. After that date, no further extension is contemplated.
|Sep 28 2005||Counsel's status report received (confidential)|
|Oct 11 2005||Respondent's brief filed|
(37786 words; 119 pp.)
|Oct 21 2005||Request for extension of time filed|
to file appellant's reply brief. (1st request)
|Oct 24 2005||Extension of time granted|
to 12/30/2005 to file appellant's reply brief.
|Nov 30 2005||Counsel's status report received (confidential)|
|Dec 28 2005||Request for extension of time filed|
to file appellant's reply brief. (2nd request)
|Dec 30 2005||Extension of time granted|
to 2/28/2006 to file the appellant's reply brief. After that date, only three further extensions totaling about 180 additional days will be granted. Extension is granted based upon counsel Pamala Sayasane's representation that she anticipates filing that brief by 8/31/2006.
|Feb 3 2006||Counsel's status report received (confidential)|
|Feb 27 2006||Request for extension of time filed|
to file appellant's reply brief. (3rd request)
|Mar 3 2006||Extension of time granted|
to May 1, 2006 to file the appellant's reply brief. After that date, only two further extensions totaling about 120 additional days will be granted. Extension is granted based upon counsel Pamala Sayasane's representation that she anticipates filing that brief by August 31, 2006.
|Mar 29 2006||Counsel's status report received (confidential)|
|Apr 24 2006||Request for extension of time filed|
to file appellant's reply brief. (4th request)
|May 1 2006||Extension of time granted|
to June 30, 2006 to file the appellant's reply brief. After that date, only one futher extension totaling about 60 additional days will be granted. Extension is granted based upon counsel Pamala Sayasane's representation that she anticipates filing that brief by August 31, 2006.
|Jun 2 2006||Counsel's status report received (confidential)|
|Jun 26 2006||Request for extension of time filed|
to file appellant's reply brief. (6th rquest)
|Jul 6 2006||Extension of time granted|
to August 29, 2006 to file the appellant's reply brief. After that date, no further extension is contemplated. Extension is granted based upon counsel Pamala Sayasane's representation that she anticipates filing that brief by August 29, 2006.
|Jul 6 2006||Compensation awarded counsel|
|Aug 1 2006||Counsel's status report received (confidential)|
|Aug 17 2006||Compensation awarded counsel|
|Aug 23 2006||Request for extension of time filed|
to file appellant's reply brief. (7th request)
|Aug 28 2006||Extension of time granted|
to October 30, 2006 to file the appellant's reply brief. After that date, no furhter extension is contemplated. Extension is granted based upon counsle Pamala Sayansane's representation that she anticpates filing that brief by October 30, 2006.
|Oct 4 2006||Counsel's status report received (confidential)|
from attorney Pamala Sayasane.
|Oct 25 2006||Request for extension of time filed|
to file appellant's reply brief. (8th request)
|Oct 27 2006||Extension of time granted|
to December 29, 2006 to file appellant's reply brief. Extension is granted based upon counsel Pamala Sayasane's representation that she anticipates filing that brief by December 29, 2006. After that date, no further extension will be granted.
|Dec 14 2006||Counsel's status report received (confidential)|
from atty Sayasane.
|Dec 20 2006||Compensation awarded counsel|
|Dec 28 2006||Filed:|
Declaration Pamala Sayasane (confidential)
|Jan 4 2007||Appellant's reply brief filed|
(12,448 words; 40 pp.) (filed per rule 8.25(b)(A)) (need certificate of word count)
|Jan 5 2007||Filed:|
supplemental declaration of counsel re word count of reply brief.
|Feb 16 2007||Counsel's status report received (confidential)|
|Apr 23 2007||Counsel's status report received (confidential)|
from atty Sayasane.
|Jun 13 2007||Compensation awarded counsel|
|Jun 27 2007||Related habeas corpus petition filed (concurrent)|
case no. S153902.
|Jun 29 2007||Filed:|
declaration of counsel from atty Sayasane. (confidential)
|Jul 2 2007||Filed:|
supplemental declaration of counsel Pamala Sayasane. (confidential)
|Jul 11 2007||Compensation awarded counsel|
|Jul 18 2007||Compensation awarded counsel|
|Nov 28 2007||Compensation awarded counsel|
|Feb 29 2008||Motion filed (AA confidential)|
|Mar 6 2008||Exhibit(s) lodged|
from superior court. People's- 1 to 14, 14A, 23A, 23B, 38 , 38A, 41, 58 (audiotape), 69A, 75, 76, 77, 78A to 78F. Defense - 102A to 102O, 114, 115.
|Mar 13 2008||Oral argument letter sent|
advising counsel that the court could schedule this case for argument as early as the May 2008 calendars, to be held the weeks of May 5 and May 26, 2008, in San Francisco. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument.
|Mar 20 2008||Confidential order filed|
re: confidential motion filed on February 29, 2008.
|Apr 9 2008||Case ordered on calendar|
to be argued on Tuesday, May 6, 2008, at 2:00 p.m. in San Francisco
|Apr 15 2008||Filed:|
appellant's focus issues letter, dated April 14, 2008.
|Apr 17 2008||Received:|
appearance sheet from Supervising Deputy Attorney General Charles French, indicating 30 minutes for oral argument for respondent.
|Apr 17 2008||Received:|
appearance sheet from Attorney Pamala Sayasane, indicating 45 minutes for oral argument for appellant.
|May 6 2008||Cause argued and submitted|
|May 14 2008||Compensation awarded counsel|
|Jul 2 2008||Compensation awarded counsel|
|Jul 9 2008||Notice of forthcoming opinion posted|
|Jul 10 2008||Opinion filed: Judgment affirmed in full|
opinion by Baxter, J. -----joined by George, C.J., Werdegar, Chin, Moreno and Corrigan, JJ Concurring opinion by Kennard, J.
|Jul 28 2008||Rehearing petition filed|
by appellant. (3,137 words; 13 pp.) (filed pursuant to California Rule of Court 8.25(b)(3)(A).)
|Jul 30 2008||Time extended to consider modification or rehearing|
The time for granting or denying rehearing in the above-entitled case is hereby extended to and including October 8, 2008, or the date upon which rehearing is either granted or denied, whichever occurs first.
|Sep 3 2008||Compensation awarded counsel|
|Sep 10 2008||Rehearing denied|
The petition for rehearing is denied.
|Sep 10 2008||Remittitur issued (AA)|
|Sep 15 2008||Received:|
acknowledgment for receipt of remittitur.
|Sep 16 2008||Exhibit(s) returned|
to Sacramento County Superior Court. Peoples exhibit no. 1, 2 , 3 , 4 , 5 , 6 , 7, 8, 9, 10, 11, 12, 13, 14, 14A, 23A, 23B, 38, 38A, 41, 58, 69A, 75, 76, 77, 78A, 78B,78C, 78D, 78E, and 78F. Defense exhibit no. 102A, 102B, 102C, 102D, 102E, 102F, 102G, 102H, 102I, 102J, 102K, 102L, 102M, 102N, 102O, 114, and 115.
|Sep 19 2008||Received:|
"acknowledgment of receipt of exhibits" from Sacramento County Superior Court.
|Sep 24 2008||Compensation awarded counsel|
|Nov 12 2008||Motion filed (AA)|
by appellant, Motion for Order Directing the Sacramento Superior Court to Set Aside the Execution Date.
|Nov 13 2008||Compensation awarded counsel|
|Nov 19 2008||Order filed|
The "Motion for an Order Directing the Sacramento Superior Court to Set Aside the Setting of an Execution Date," filed on November 12, 2008, is treated as an application to stay the hearing to set an execution date and, as such, is granted. Execution of the judgment of death entered against Richard R. Parson by the Superior Court of Sacramento County and affirmed by this court on July 10, 2008 (44 Cal.4th 332), is hereby stayed pending the last to occur of the following: final determination of any timely filed petition for writ of certiorari in the United States Supreme Court, and this court's disposition of Richard R. Parson's capital-related petition for writ of habeas corpus (S153902). If the petition for writ of habeas corpus is denied, and if a petition for writ of certiorari is not submitted within the time prescribed, this stay will terminate when the time for submitting such petition has expired.
|Dec 10 2008||Received:|
copy of Petition for Writ of Certiorari filed in U.S.S.C. (15 pp. excluding attached appendix.)
|Dec 19 2008||Received:|
letter from USSC, dated December 15, 2008, advising that a petition for writ of certiorari was filed on December 9, 2008 and placed on the docket December 15, 2008 as No. 08-7760.
|Jan 26 2009||Compensation awarded counsel|
|Jan 29 2009||Received:|
copy of letter from U.S. Supreme Court, dated January 26, 2009, advising that extension of time was granted to March 16, 2009 to file a response to the petition for writ of certiorari. (No. 08-7760)
|Apr 20 2009||Certiorari denied by U.S. Supreme Court|
|Oct 2 2009||Compensation awarded counsel|
|Mar 21 2005||Appellant's opening brief filed|
|Oct 11 2005||Respondent's brief filed|
|Jan 4 2007||Appellant's reply brief filed|