Stanford Law School - Robert Crown Law Library

Filed 4/24/06

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S055474
v.
CLIFTON PERRY,
Kings
County
Defendant and Appellant.
Super. Ct. No. 95CM5500

In May 1996, a jury found defendant Clifton Perry and codefendant Leon
Noble guilty of the murder (Pen. Code, § 187)1 and second degree robbery
(§§ 211, 212.5, subd.(c)) of Saeed Nasser. The jury also found that defendant,
but not Noble, personally used a firearm during the commission of the crimes. It
further found, as a special circumstance, that the murder occurred during the
commission of a robbery (§ 190.2, subd. (a)(17)). After a penalty trial, the jury
returned a verdict of death for defendant, and life imprisonment without the
possibility of parole for Noble.2
The trial court denied defendant’s motion for modification of the verdict,
and it sentenced defendant to death for the murder of Saeed Nasser. On the

1
All statutory references are to the Penal Code unless otherwise noted.
2
Noble’s convictions were affirmed by the Court of Appeal in an
unpublished opinion.
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robbery conviction, the trial court sentenced defendant to the upper term of five
years’ imprisonment, with a consecutive five-year term for the personal use of a
firearm.
Defendant’s appeal to this court is automatic. (§ 1239, subd. (b).) We
affirm the judgment and penalty.
I. FACTS AND PROCEEDINGS

A. Guilt Phase Evidence

1. Events preceding the crime
About noon on July 9, 1995, defendant and Paul LeBlanc arrived at the
home of Elisa Padilla. They joined Padilla, Shaundra Stephens, and Henry
Pridgett in drinking alcohol and smoking marijuana. Later that afternoon
codefendant Noble paged defendant, after which defendant and LeBlanc picked up
Noble at his stepmother’s house. When they returned to Padilla’s house, Noble
asked defendant if he wanted to get some money; defendant said he was “down”
for that. Pridgett overheard defendant, Noble, and LeBlanc discussing a store
robbery, and heard LeBlanc say, “don’t do that.” Defendant asked Stephens to
buy some gloves and red bandanas. She did so.
Noble suggested that they use his stepmother’s car for the crime.
Defendant and Noble left in defendant’s car but returned in the stepmother’s car.
Defendant then asked LeBlanc, who had defendant’s gun, to return it to him.
LeBlanc gave defendant the gun, which was loaded and wrapped in a white sock.

2. The robbery and murder of Saeed Nasser
At about 9:30 p.m. on July 9, 1995, 16-year-old Sami Nasser was working
at the cash register of the Stop and Shop Market in Hanford in Kings County.
Sami’s uncle Abdul Nasser and two customers, Alfonso Garcia and William
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Jones, were also in the store. Sami’s other uncle, 47-year-old Saeed Nasser, the
store’s owner, was in a back room.
Sami saw a man run into the store, climb over the counter, and demand
money. The man wore a bandana, concealing his face; Sami thought the man was
Black from the way he spoke. The man struck Sami with what Sami thought was
a gun. Sami was not seriously injured, but he dropped to the floor behind the
counter to avoid further injury. As he fell behind the counter, Sami heard two
gunshots. He began crawling toward the door to the back room. He heard several
more shots, and his Uncle Saeed said “oh, no” or something like that. When Sami
looked out from behind the counter, he saw Saeed lying wounded on the floor.
Sami called the police from a telephone behind the store and asked for an
ambulance. When he returned to the front room, everyone was gone except
Saeed.
The two customers, Jones and Garcia, testified that two Black men entered
the store and demanded money. Their faces were covered with bandanas. Garcia
said the man at the cash register hit Sami with a gun, and then fired two shots. As
Garcia ran from the store, he heard four or five more shots.
According to Jones, the man at the cash register hit Sami with his hand, not
a gun; the other man had a gun wrapped in a white cloth. Jones saw Saeed grab
one of the men and strike him. As Jones fled to the back room with Abdul Nasser,
he heard two gunshots, then three more.3
Beatrice Cruz, who lived across the street from the Stop and Shop Market,
heard gunshots. She saw two Black men run out of the store and around a corner.
The taller of the two men had his hair in French braids. A car took off going away

3
Abdul Nasser returned to Yemen before the trial and did not testify.
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from the market. After asking someone in her house to call the police, Cruz went
to the store. She entered the store just before the police arrived, and saw Saeed
Nasser lying wounded on the floor.
Saeed Nasser had three bullet wounds in the abdomen. He died from loss
of blood a few hours after the shooting. The police discovered fragments of five
bullets in the store; a sixth bullet was lodged in Saeed’s body.

3. Events after the crime
When defendant and Noble returned to Padilla’s house, defendant told
Henry Pridgett “I just got my blast on,” meaning that he had shot somebody. He
took off a red bandana and asked Pridgett to burn it. After doing so, Pridgett saw
defendant and Noble counting money.
Defendant told Paul LeBlanc that someone “had tried to rush him” and that
defendant then “shot him.” He asked LeBlanc to dispose of some empty gun
shells. Later, defendant turned on the television news and saw a description of the
Stop and Shop Market robbery that identified the suspects as two Hispanic males.
According to Pridgett, after hearing this, Noble and defendant shook hands and
were saying, “Yeah, that was smooth.”
On July 15, 1995, police searched behind Padilla’s home and found burned
clothing, including gloves and a red bandana, on top of a woodpile. Under the
wood they found a .357-caliber Ruger revolver, wrapped in a shirt. The bullets
recovered from the robbery matched bullets test fired from the revolver.

4. Defendant’s guilt phase evidence
Noting the testimony of Beatrice Cruz that one robber had his hair in
French braids, defendant called Rubi White, a cosmetologist, to testify that neither
defendant nor Noble had hair long enough to braid. The prosecutor showed White
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a picture of defendant taken shortly after the murder. She said defendant’s hair
was longer then but still too short to braid.

B. Penalty Phase Evidence4

1. Prosecution evidence
Sami Nasser testified that victim Saeed had a wife and six children in
Yemen. He sent them several thousand dollars every two or three months. Saeed
had been in the United States about 29 years and was planning to apply for
citizenship.
The prosecution played the tape of a statement defendant gave the police.
In that statement, defendant said he had been in Saeed’s store 100 to 200 times,
and considered Sami a friend. He said Saeed was a nice guy who “looked after”
defendant and would cash defendant’s checks even when defendant had no
identification with him.
The parties stipulated as follows: On October 22, 1975, defendant was
found in juvenile court to have committed two counts of assault with a deadly
weapon; on March 7, 1986, he was found in juvenile court to have committed
attempted robbery and assault with a deadly weapon; on October 17, 1989, he was
convicted of battery; and on June 6, 1990, he was convicted of robbery with the
use of a firearm.

2. Defendant’s evidence
Defendant’s wife, Ernestine Perry, testified that during their three-year
marriage defendant had never physically abused her. Miguel Herrera, Ernestine’s

4
We omit discussion of the penalty phase evidence that is related solely to
codefendant Noble, who was sentenced to life imprisonment without the
possibility of parole.
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father, testified that defendant had worked for him in his dairy construction
businesses, and was a good and responsible employee.
Richard Dubois, a retired California Youth Authority counselor, considered
defendant “way above the norm in terms of his willingness to cooperate and his
ability to do what was asked of him.” Dubois said defendant would not be a threat
to other inmates or staff in an institutional setting.
Defendant testified on his own behalf at the penalty trial and described the
robbery and murder. He said that he decided to commit a robbery because he
needed money. He was armed with a gun he got from LeBlanc. Codefendant
Noble did not have a gun.
Defendant wore a baseball cap and a red bandana during the robbery. He
saw Noble use his right hand to hit Sami, who fell to the floor. When someone
came up behind defendant and tried to grab him, defendant spun in a circle and
started shooting.
Defendant then described his childhood and adolescence. During
defendant’s childhood, his father was in prison. The Department of Social
Services regularly took defendant from his mother, a heroin user, because she beat
him, but later returned him to her custody.
When defendant was nine or ten years old, the family moved to South
Central Los Angeles. Defendant joined a gang called the “59 East Side Crips” for
protection against being beaten by older boys.
Defendant spent most of his adolescence at the California Youth Authority,
where he attended school. After he was paroled, he entered Fresno City College.
While in Fresno, defendant performed CPR on a child drowning victim, and he
received a letter of appreciation from the emergency medical services. About two
weeks later, however, defendant committed an armed robbery; he received a 26-
month sentence, which he served at Soledad State Prison. Defendant explained he
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had a gun for protection because he had been shot twice. He thought he was shot
at frequently because he had a reputation for never backing down.
II. GUILT PHASE ISSUES

A. Defendant’s Absence from the Trial Court’s Conference
on the Exclusion of Spectators
1. The bench conference on the exclusion of spectators at the trial

On May 9, 1996, during the guilt phase of defendant’s capital trial, the
bailiff told the trial court that two jurors (Juror No. 7 and Alternate Juror No. 6)
mentioned that the previous afternoon they had overheard a conversation between
two spectators discussing the testimony at the trial. The court informed counsel
and defendants. It then questioned the two jurors outside the presence of the other
jurors.
Juror No. 7 said that the two spectators discussed whether witness Henry
Pridgett said that about 30 joints had been smoked on the day of the murder.
While Juror No. 7 was describing what he had heard, Ernestine Perry, defendant’s
wife, entered the courtroom and exclaimed: “Bailiff, Paul [LeBlanc] and his
mother are attacking me. They’re out there attacking me.” The judge went off the
record. When he went back on the record, he asked Juror No. 7 to complete his
description of the two spectators; the juror responded that they were “very nice
looking, well-dressed Black women.” The juror agreed to disregard anything he
had heard and decide the case strictly on the evidence.
Alternate Juror No. 6 also described the conversation between the two
spectators: “[T]he gist . . . was that an individual that testified yesterday had lied
and that anybody else that took the stand was going to lie and a name that was
mentioned was Paul. And then just after that it was they don’t know that 30 joints
were smoked there that day.” Alternative Juror No. 6 agreed that she would make
her decision solely on the basis of sworn testimony.
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The trial court then stated that it was “going to have to initiate some
additional procedures to try to make sure that the jurors are completely isolated
from any spectators or witnesses.” It called for a bench conference with the
prosecutor, defendant’s counsel, and codefendant Noble’s counsel. Defendant and
Noble were not present at the conference.
At the bench conference, defendant’s attorney said that “after today’s
testimony [from Paul LeBlanc and Shaundra Stephens], I can fairly assure the
court that things are going to heat up as far as outside the courtroom.”
After a recess, the trial judge resumed the bench conference. The
prosecutor and counsel for both defendants were present, as well as Ernestine
Perry (defendant’s wife) and Christina Herrera (Ernestine’s sister). Defendant and
codefendant Noble were not present.
Ernestine Perry said she just wanted to be in the courtroom for her husband,
but that court personnel would not let her in. She claimed that she had been
attacked by Paul LeBlanc and his mother. They had threatened her before, and
she had made complaints about them to the police.
The trial judge told Ernestine Perry: “Your presence in the courthouse or in
the courtroom is going to create a potentially disturbing element here and we can’t
have that.” Anticipating that the judge was going to exclude her, defense counsel
said: “[T]o make a long story short, this is not my first exposure to Mr. Perry, and
I can assure you that if his wife is excluded at this trial, it’s going to take a
difficult turn. He will go off. He will be unmanageable. He will hurt somebody,
and I might be the person.”
Counsel for codefendant Noble suggested: “I think that maybe having Miss
Herrera [Ernestine Perry’s sister] here will appease Mr. Perry in that she at least
can communicate – because I’m assuming what’s happening is she’s
communicating with Ernestine Perry as to what’s going on, and that’s substituting
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[for] her appearances here in court. If you exclude Miss Herrera, Ernestine is not
going to have any information. So having her here, and she hasn’t caused any
problems, may solve the problem.” Defendant Perry’s counsel added: “The
biggest part of our job right now is trying to keep these two gentlemen gentlemen,
it’s not easy. I’m just afraid if the information gets back that Miss Herrera has
been excluded from the courtroom too, my client’s going to be – we have seven or
eight more days of trial, this is going to turn into a month.”
The trial court then ruled that Christina Herrera, but not Ernestine Perry,
could remain in the courtroom as long as she did not disrupt the proceedings.
Based on this incident, defendant contends that the bench conference was a
critical stage of the trial from which he was improperly excluded. He also argues
that at the bench conference his counsel acted contrary to defendant’s interests
and, in effect, abandoned him.

2. Defendant’s right to be present at the bench conference
Defendant contends that his absence from the bench conference when his
counsel expressed concern about excluding defendant’s wife from the courtroom
deprived him of his right to be present under the Sixth and Fourteenth
Amendments to the United States Constitution, as well as under article I, section
15 of the California Constitution, and Penal Code section 1043. We disagree.
In
People v. Bradford (1997) 15 Cal.4th 1229, we stated: “[A] defendant
has a federal constitutional right, emanating from the confrontation clause of the
Sixth Amendment and the due process clause of the Fourteenth Amendment, to be
present at any stage of the criminal proceedings ‘that is critical to its outcome if
his presence would contribute to the fairness of the procedure.’ [Citations.] In
addition, a defendant has the right to be personally present at critical proceedings,
pursuant to the state Constitution [citations], as well as pursuant to statute
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[citations].” (Id. at pp. 1356-1357; see Kentucky v. Stincer (1987) 482 U.S. 730,
745; People v. Davis (2005) 36 Cal.4th 510, 530; People v. Roldan (2005) 35
Cal.4th 646, 717-718; People v. Waidla (2000) 22 Cal.4th 690, 741.) “An
appellate court applies the independent or de novo standard of review to a trial
court’s exclusion of a criminal defendant from trial, either in whole or in part,
insofar as the trial court’s decision entails a measure of the facts against the law.”
(People v. Waidla, supra, 22 Cal.4th at p. 741.) Erroneous exclusion of the
defendant is not structural error that is reversible per se, but trial error that is
reversible only if the defendant proves prejudice. (Rushen v. Spain (1983) 464
U.S. 114, 118-119; People v. Bradford, supra, 15 Cal.4th at p. 1357.)
Under the decisions cited above, a defendant’s right to be present depends
on two conditions: (1) the proceeding is critical to the outcome of the case, and
(2) the defendant’s presence would contribute to the fairness of the proceeding.
(See Kentucky v. Stincer, supra, 482 U.S. 730, 745; People v. Bradford, supra, 15
Cal.4th 1229, 1356-1357.) Thus a defendant may ordinarily be excluded from
conferences on questions of law, even if those questions are critical to the outcome
of the case, because the defendant’s presence would not contribute to the fairness
of the proceeding. Examples include the exclusion of a defendant from a
conference on the competency of child witnesses (Kentucky v. Stincer, supra, 482
U.S. 730), a conference on whether to remove a juror (Rushen v. Spain, supra, 464
U.S. 114), and a conference on jury instructions (People v. Morris (1991) 53
Cal.3d 152, 210). And there is no error in excluding a defendant from routine
procedural discussions on matters that do not affect the outcome of the trial, such
as when to resume proceedings after a recess. (See, e.g., People v. Hines (1997)
15 Cal.4th 997, 1039-1040.)
Defendant does not argue that a hearing to determine who will be allowed
to sit as spectators at the trial is necessarily a critical stage of the trial, or that a
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defendant would necessarily have anything to contribute at such a hearing.
Instead, he contends that when his counsel said that defendant might become
violent and unmanageable if defendant’s wife were barred from attending the trial,
counsel transformed the bench conference into one at which defendant was
entitled to be present.5
Defendant relies on two federal appellate court decisions by the Ninth
Circuit that were later vacated by the granting of rehearings en banc. In Campbell
v. Rice (9th Cir. 2002) 302 F.3d 892, the trial court excluded the defendant from a
chambers conference called to determine whether the defense counsel had a
conflict of interest because he had been arraigned on a charge of possession of
methamphetamine.
The federal court of appeals held that Campbell had been denied due
process because his presence at the hearing “ ‘would [have] contribute[d] to the
fairness of the procedure.’ ” (Campbell v. Rice, supra, 302 F.3d at p. 899.)
Campbell could have asked questions to explore more fully the nature of the
alleged conflict, and stated his own views on whether to object to his attorney’s
possible conflict of interest or whether to waive that conflict. (Ibid.) Campbell
would also have learned a fact – that his counsel had been charged with a felony –

5
Defendant also argues that the earlier hearing at which he was present,
when the court first inquired into whether jurors had overheard the two court
spectators’ comments, was a critical stage of the trial because it affected what
evidence was heard by the jury. Defendant then maintains that the bench hearing
from which he was excluded was a critical stage of the trial because it was a
continuation of the earlier hearing. But the record does not support this
contention. The transcript of the hearing from which defendant was excluded
shows that the court considered only the question of what persons should be
barred from the courtroom, and not whether any juror or alternate juror received
information about the case from the spectators.
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of which he was otherwise unaware, and which might have led him to request new
counsel.
The decision on which defendant relies, however, was vacated when the
Ninth Circuit granted a rehearing en banc. (Campbell v. Rice (2004) 386 F.3d
1258.) On rehearing, the federal appellate court did not decide whether the trial
court erred in excluding the defendant from the conference, because it concluded
that any error would be harmless. (Campbell v. Rice (9th Cir. 2005) 408 F.3d
1166, 1172 (in bank).) Thus Campbell v. Rice, supra, 302 F.3d 892, is no longer
precedent and does not support defendant’s position.
Defendant also cited Bradley v. Henry (9th Cir. 2005) 428 F.3d 811, in
which the defendant was excluded from an in camera hearing to determine
whether her attorneys, retained by her father, should be allowed to withdraw
because the father had not paid them. The federal court of appeals held that the
hearing was a critical stage of the trial because it would determine who
represented the defendant at the trial, and that her exclusion was reversible error.
(Id. at p. 820.) Thereafter, the Ninth Circuit granted a rehearing en banc (Bradley
v. Henry (9th Cir. 2005) 432 F.3d 938.), thus vacating the earlier decision.
Finally, defendant relies on King v. Superior Court (2003) 107 Cal.App.4th
929, which held that the exclusion of a defendant from a hearing to determine
whether the defendant’s misconduct forfeited his right to counsel denied the
defendant due process of law. (Id. at p. 950.)
We do not dispute that a defendant may be entitled to be present at a
conference called to consider whether to remove his counsel for conflict of interest
or any other reason, because the removal of counsel will affect defendant’s
representation at trial, and is a matter on which defendant’s views should be heard.
(See State v. Lopez (Conn. 2004) 859 A.2d 898.) Here, however, the bench
conference was not called to consider such a crucial matter, but only to
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determine whether certain spectators should be excluded from the courtroom – a
routine procedural matter for which defendant’s attendance is not required. The
comments of defense counsel were appropriate to that issue.
Defendant insists the hearing was critical because, he asserts, both the
prosecutor and the trial court thereafter viewed defendant as a violent person. He
points out that the prosecutor cross-examined defendant about defendant’s violent
conduct, and that the trial court referred to defendant as a violent person in
denying the motion to modify the verdict of death, and later at the sentencing
hearing. But by the time of the prosecutor’s cross-examination of defendant and
the court’s comments about defendant’s violence, both the prosecutor and the
court had heard substantial, uncontroverted evidence of defendant’s violent nature.
Defendant had testified on direct examination at the penalty trial, admitting the
charged robbery, impliedly admitting the murder, and describing himself as a gang
member since the age of 10 who carried a gun to intimidate people and never
backed down. The parties had stipulated that defendant had previously twice been
found to have committed assault with a deadly weapon, had been convicted of
battery, and had been convicted of robbery with the use of a firearm. Thus, when
the prosecutor and the trial court described defendant as a violent man, they did
not need to rely on the comments of defense counsel at the bench conference, and
in fact did not refer to those comments.
Defendant further argues that if he had been present at the bench
conference and heard that his attorney considered him to be a violent person and
was afraid of him, he might have claimed that an irreconcilable conflict existed
between him and his attorney requiring appointment of new counsel. (See People
v. Fierro (1991) 1 Cal.4th 173, 204.) But as we have explained, a defendant has a
right to be present at a proceeding only if the proceeding is critical to the outcome
of the case and the defendant’s presence would contribute to the fairness of the
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proceeding; he has no right to be present a routine procedural discussions that
could not affect the outcome of the trial. (Ante, at p. 10.) Defendant’s argument is
inconsistent with these settled principles, because it implies that a defendant has
the right to be present at any proceeding in which his attorney might say
something that could lead the defendant to request new counsel, even if, as here,
the proceeding involves a routine procedural matter not critical to the outcome of
the case.
Furthermore, if defendant had sought new counsel based on what his
counsel said at the bench conference, the trial court would have had no basis to
grant the motion. There is no showing on the record here that defendant’s
counsel was providing ineffective representation, that there was any conflict
between client and counsel concerning the defense of the case, that counsel’s fear
of his client was hampering the defense, or that any replacement counsel would
not also view defendant as dangerous.
Finally, defendant asserts that his counsel’s view of him as a dangerous and
threatening person led counsel to present an inadequate penalty phase defense.
But defendant acknowledged at oral argument that this contention cannot be raised
on appeal, but only by petition for habeas corpus.
3. Defendant’s claim that his counsel abandoned him
Defendant contends that defense counsel violated his duty of loyalty to his
client and, in effect, abandoned his client. Defendant relies on King v. Superior
Court, supra, 107 Cal.App.4th 929. There, at a hearing on whether the defendant
through misbehavior had forfeited his right to counsel, defense counsel offered no
argument in support of his client’s right to counsel, but instead presented evidence
of additional violent conduct. (Id. at p. 950.) The Court of Appeal concluded that
because counsel was advocating against his client, the latter was in effect
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unrepresented at the forfeiture hearing and thus deprived of his right to counsel
and to due process of law. (Ibid; see Rickman v. Bell (6th Cir. 1997) 131 F.3d
1150, 1157 [counsel “combined a total failure to actively advocate his client’s
cause with repeated expressions of contempt for his client”].)
This case is quite different. Defendant’s counsel represented defendant’s
interests at the bench conference held to determine whether defendant’s family
should be barred from the courtroom. Although the trial court was considering
banning all members of defendant’s family from attending the trial, defendant’s
counsel and counsel for codefendant Noble persuaded the court to permit Christina
Herrera, the sister of defendant’s wife, to attend the trial. It is true that describing
a client as a violent person ordinarily would not be in the client’s interest, but here
defense counsel, by suggesting the problems that might arise from the trial court’s
initial suggestion to exclude all family members, served his client’s interest.
Defendant’s counsel also was trying to forestall a possible violent outburst
by defendant, which would not have been in defendant’s interests. It could have
resulted in defendant’s being shackled or otherwise restrained during the trial,
which would have left harmful impressions on the judge and jury. Defense
counsel’s explanation of defendant’s dangerousness to the trial judge, made
outside the presence of the jury, avoided the far greater risk that defendant might
became violent during the trial. In sum, defense counsel neither violated a duty of
loyalty to his client nor abandoned his client, but acted in defendant’s best interest.
Defendant contends that defense counsel revealed privileged information in
discussing defendant’s violent character. But counsel’s comments at the bench
conference about the risk that defendant would become violent were based on
counsel’s past experience with defendant. They did not reveal any confidential
communications with his client, and thus did not violate the attorney-client
privilege. (See Evid. Code, § 952.) An attorney’s impression of his client’s
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mental state is not protected by the attorney-client privilege. (See Darrow v. Gunn
(9th Cir. 1979) 594 F.2d 767, 774; 2 Witkin, Cal. Evidence (4th ed. 2000)
Witnesses, § 1091, pp. 365-367.)

B. Issues Relating to Exhibit No. 44, a Photograph of the
Murder Victim

People’s exhibit No. 44 was a photograph of Saeed Nasser, the murder
victim, as he lay wounded on the floor of the Stop and Shop Market. Three
witnesses -- Sami Nasser, Beatrice Cruz, and Willie Jones -- testified that the
photograph showed what the victim looked like after he was shot. At the close of
the prosecution’s case, the prosecutor moved to have all prosecution exhibits,
including No. 44, admitted into evidence. The trial court overruled defendants’
objections and admitted the exhibit.
During the preparation of the record on appeal, appellate counsel notified
the superior court clerk that he had not received a copy of exhibit No. 44. The
clerk was unable to locate the exhibit.
After a hearing, the trial court issued a settled statement concerning exhibit
No. 44. According to the settled statement, the prosecution furnished the attorneys
for defendant and codefendant Noble a set of nine photographs, all showing the
murder victim lying on the floor of the market. Defendant’s trial counsel thought
that one of the photographs was exhibit No. 44, but did not recall which one it
was. The prosecutor’s file contained eight photographs, all except the one labeled
photo No. 5. The prosecutor had no independent recall of which photograph
became exhibit No. 44, but speculated that photo No. 5 was removed from the file
to be introduced into evidence as exhibit No. 44. The trial judge in the settled
statement said there was a high probability that photo No. 5 was exhibit No. 44.
Defendant argues that the trial court committed prejudicial error in
admitting exhibit No. 44, asserting that the exhibit was irrelevant, more prejudicial
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than probative, and that its admission denied him due process of law under the
federal and state Constitutions. He further contends that because exhibit No. 44 is
missing, this court is unable to review his claim that the admission of exhibit
No. 44 was prejudicial error, and thus has no choice but to reverse defendant’s
convictions for robbery and murder.

1. Adequacy of the appellate record
In
People v. Osband (1996) 13 Cal.4th 622, this court faced a problem with
the appellate record far more serious than is presented by this appeal. In Osband,
misconduct in the office of the superior court clerk had resulted in the destruction
of 80 exhibits. The trial court was able to reconstruct 62. For another 12, all
photographs, the court could identify between two and five photographs that might
have been the missing exhibits. Six exhibits could not be reconstructed. (Id. at
p. 662.) We nevertheless concluded: “[A]lthough the record as reconstructed
remains deficient, defendant has not met his burden of showing that the
deficiencies . . . have left him unable to proceed with his appeal on a record
adequate to permit meaningful appellate review.” (Id. at p. 663.)
Here only one exhibit is missing, and that exhibit, like the 12 photographs
in Osband, is probably one of a group of photographs that are available. We know
from the testimony of three witnesses that missing exhibit No. 44 was a
photograph of the murder victim as he lay wounded on the floor of the store. It is
highly probable that it is one of the nine photographs attached as an exhibit to the
settled statement; all nine depict the victim lying on the floor after he had been
shot, and there is no evidence that any other photographs of the victim were taken
at the time. It is likely that the reason the prosecutor did not have photo No. 5, but
defense counsel did, is that the prosecutor removed it from his file to offer it into
evidence as exhibit No. 44. But it is unnecessary to determine for certain if
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exhibit No. 44 was photo No. 5, because all nine of the photographs depict
virtually the same scene, with only differences in camera angle. We can therefore
review defendant’s contention that the admission of exhibit No. 44 was prejudicial
error on the basis that the exhibit was a photograph of the murder victim identical
or very similar to photo No. 5.

2. Admissibility of exhibit No. 44
Defendant contends that exhibit No. 44 should have been excluded because
it was irrelevant (see Evid. Code, § 350), and because it was more prejudicial than
probative (see Evid. Code, § 352). He argues that its admission denied him due
process of law under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the
United States Constitution, as well as sections 7, 15, 17, and 24 of article I of the
California Constitution.6
Exhibit No. 44, however, was unquestionably relevant because it showed
the murder victim lying wounded at the scene of the crime shortly after the

6
Defendant did not raise constitutional objections to the admission of exhibit
No. 44 in the trial court, but his objection that the admission of exhibit No. 44
would violate section 352 of the Evidence Code because the evidence was more
prejudicial than probative preserves the constitutional issue whether, for the same
reason, the admission of exhibit No. 44 violated due process. (See People v.
Partida (2005) 37 Cal.4th 428, 437-439.)

The Attorney General also asserts that defendant failed to raise a relevancy
objection at trial. When the prosecution first offered exhibit No. 44, defendant
objected without stating reasons. The trial court sustained the objection on
grounds of relevancy. The defense offered to specify the reasons for its objection,
but the trial court said that was unnecessary since it was sustaining the objection.
Later, at the close of the prosecution case, when the prosecution moved that all
exhibits be admitted into evidence, the defense objected to exhibit No. 44 on the
ground that the exhibit had no probative value and should be excluded under
Evidence Code section 352. Under these circumstances, the trial court was fairly
informed that the defense was objecting to the relevancy of exhibit No. 44. (See
People v. Partida, supra, 37 Cal.4th at p 437.)
18

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shooting, and corroborates the description of the witnesses. (See People v.
Michaels (2002) 28 Cal.4th 486, 532; People v. Hughes (2002) 27 Cal.4th 287,
337.) In essence, defendant’s objection is that exhibit No. 44 was unnecessary and
cumulative because the witnesses had verbally described the scene depicted in the
photograph. But as we said in People v. Price (1991) 1 Cal.4th 324, 441: “We
have often rejected the argument that photographs of a murder victim should be
excluded as cumulative if the facts for which the photographs are offered have
been established by testimony. [Citations.] Because the photographic evidence
could assist the jury in understanding and evaluating the testimony, we reject the
argument here as well.”
Relying on Evidence Code section 352, defendant argues that exhibit No.
44, even if relevant, should have been excluded as more prejudicial than probative.
The photograph, showing the mortally wounded victim lying unconscious with
blood on his head and chest, would undoubtedly unsettle some jurors. But, as we
have often noted, “ ‘ “ ‘murder is seldom pretty, and pictures, testimony and
physical evidence in such a case is often unpleasant . . . .’ ” ’ ” (People v. Riel
(2000) 22 Cal.4th 1153, 1194, quoting People v. Pierce (1979) 24 Cal.3d 199,
211.) Here, the nine photographs of the murder victim are less gruesome than
many we have seen in other cases at this court. As the trial court remarked,
exhibit No. 44 was “not unusually disturbing as this type of evidence goes.”
“A trial court has broad discretion in determining the admissibility of
murder victim photographs against a claim that the photographs will arouse in the
jurors an excessively emotional response.” (People v. Price, supra, 1 Cal.4th at
p. 441.) We find no abuse of discretion here.
III. PENALTY PHASE ISSUES
All of defendant’s penalty phase issues are challenges to the adequacy and
constitutionality of the penalty phase procedures and jury instructions. As
19

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defendant acknowledges, all have been rejected by this court in previous
decisions.

A. CALJIC No. 8.85
CALJIC No. 8.85 lists the factors to be considered by the jury in making its
penalty decision. Defendant contends that the trial court should have deleted those
factors inapplicable to this case. We rejected that contention in People v. Smith
(2005) 35 Cal.4th 334, 368-369 (Smith); People v. Sapp (2003) 31 Cal.4th 240,
315; People v. Yeoman (2003) 31 Cal.4th 93, 164-165; People v. Carpenter
(1997) 15 Cal.4th 312, 421; People v. Ghent (1987) 43 Cal.3d 739, 776-777; and
in many other cases.
The trial court is not required to instruct the jury that mitigating factors can
only be mitigating. (People v. Farnam (2002) 28 Cal.4th 107, 191.) Defendant
argues that without such an instruction, the jury might treat the absence of
evidence relating to a mitigating factor as aggravating, and that this danger is not
eliminated by telling the jury to consider factors only “if applicable” (CALJIC No.
8.85). But we considered and rejected that contention in People v. Sapp, supra, 31
Cal.4th at page 315.
Defendant argues that CALJIC No. 8.85’s summary of the aggravating and
mitigating factors is unconstitutional. First, he claims that the terms “extreme
mental or emotional disturbance” in section 190.3, factor (d) (italics added), and
“extreme duress” and “substantial domination” in factor (g) (italics added)
unconstitutionally limit the mitigating factors the jury can consider. We rejected
that contention in Smith, supra, 35 Cal.4th at page 374. (See People v. Jones
(1997) 15 Cal.4th 119, 190 [factor (d)]; People v. Visciotti (1992) 2 Cal.4th 1, 73-
75 [“extreme duress” in factor (g)]; People v. Adcox (1988) 47 Cal.3d 207, 270
[“substantial domination” in factor (g)].) Defendant also argues that although
20

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People v. Boyd (1985) 38 Cal.3d 762, 772, held that a death judgment could not be
based on aggravating factors not listed in section 190.3, CALJIC No. 8.85 did not
expressly instruct the jury not to consider nonstatutory aggravating factors. But he
does not point to any nonstatutory aggravating factors that were presented to or
argued to the jury. Thus defendant’s claim raises no issue for decision here.
(People v. Jones (2003) 30 Cal.4th 1084, 1123.)

B. CALJIC No. 8.88
CALJIC No. 8.88 explains to the jury how it should arrive at the penalty
decision. Defendant asserts this instruction violates his rights under the Fifth,
Sixth, Eighth, and Fourteenth Amendments to the federal Constitution.
He first argues that CALJIC No. 8.88’s language, directing the jury to
determine whether aggravation “so outweighs” mitigation as to warrant death, is
unconstitutionally vague. We rejected that contention in People v. Davenport
(1995) 11 Cal.4th 1171, 1231, and in People v. Breaux (1991) 1 Cal.4th 281, 315-
316. We explained that the words used in CALJIC No. 8.88, or words of similar
breadth, are essential to avoid reducing the penalty decision to a mere mechanical
calculation. (Smith, supra, 35 Cal.4th at p. 369; see People v. Brown (1985) 40
Cal.3d 512, 541.)
Defendant then contends that CALJIC No. 8.88 is incorrect because it
refers to whether the death penalty is “warranted” instead of whether it is
“appropriate.” We disagree. In People v. Arias (1996) 13 Cal.4th 92, 171, we
said: “By advising that a death verdict should be returned only if aggravation is
‘so substantial in comparison with’ mitigation that death is ‘warranted,’ the
instruction clearly admonishes the jury to determine whether the balance of
aggravation and mitigation makes death the appropriate penalty.”
21

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Defendant also contends that CALJIC No. 8.88 does not convey to the jury
that a life sentence is mandatory if aggravation does not outweigh mitigation.
Again we disagree. CALJIC No. 8.88 permits a death penalty only if aggravation
is so substantial in comparison with mitigation that death is warranted; if
aggravation failed even to outweigh mitigation, it could not reach this level. (See
Smith, supra, 35 Cal.4th at p. 370; People v. Medina (1995) 11 Cal.4th 694, 781.)
Defendant further contends that CALJIC No. 8.88 does not inform the jury
that it can impose a life sentence even if there is no mitigating evidence. We
explained in People v. Johnson (1993) 6 Cal.4th 1, 52, that under the language of
CALJIC No. 8.88, “no reasonable juror would assume he or she was required to
impose death despite insubstantial aggravating circumstances, merely because no
mitigating circumstances were found to exist.”
Finally, we have in the past rejected defendant’s contention that CALJIC
No. 8.88 is defective because it does not require unanimous separate written
findings on each of the aggravating circumstances. (Smith, supra, 35 Cal.4th at
p. 374; People v. Coffman (2004) 34 Cal.4th 1, 125.)

C. Burden of Proof
Contrary to defendant’s assertion, the federal Constitution does not require
that a state death penalty law impose a burden of proof on the prosecution to prove
that death is the appropriate penalty, either beyond a reasonable doubt (see People
v. Arias, supra, 13 Cal.4th at p. 190), or by a preponderance of the evidence (see
People v. Hayes (1990) 52 Cal.3d 577, 643). Because no burden of proof is
required at the penalty phase, the law is not invalid for failing to require an
instruction on burden of proof. (See People v. Michaels, supra, 28 Cal.4th at
p. 541; People v. Ochoa (2001) 26 Cal.4th 398, 452-454.) Defendant’s contention
that the trial court should instruct the jury that there is a “presumption of life” at
22

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the penalty phase of the trial, analogous to the presumption of innocence at the
guilt trial, was rejected by this court in People v. Kipp (2001) 26 Cal.4th 1100,
1137.

D. Instructions Concerning the Possibility of Parole

Defendant complains that the jury instructions do not adequately describe
the penalty of life without the possibility of parole. He points out that during
penalty deliberations the jury sent the trial court a note asking: “(1) Does life
without the possibility of parole mean that there are absolutely no circumstances
under which the accused defendant can exit state prison while still alive? This
question excludes the possibility of escape. (2) If there are such circumstances
please explain them.” The court responded by instructing the jury that it “must
assume that a sentence of life without possibility of parole will be carried out for
purposes of determining sentence.” The court added: “It would be a violation of
the jury’s duty to speculate otherwise.”
The problem is not with the jury instructions. The phrase “without
possibility of parole” is clear and on its face absolutely bars parole. The problem
is that some jurors may not accept the role of juries in the California death penalty
scheme, and instead of making a decision based solely on weighing the
aggravating and mitigating circumstances, may seek an assurance that there are no
circumstances under which a sentence of life without possibility of parole could be
altered to permit parole. The trial court cannot provide such an assurance.
(People v. Kipp, supra, 18 Cal.4th 349, 378.) It can explain to the jury that in
unusual cases, future action by the judiciary or the Governor may permit a
defendant who has been sentenced either to death or to life imprisonment without
possibility of parole to obtain parole, but that the jury should not speculate on such
possibility but instead should assume the sentence it reaches will be carried out.
23

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(See People v. Samuels (2005) 36 Cal.4th 96, 141 (conc. opn. of Werdegar, J.).)
But that is a matter within the trial court’s discretion; the court in this case did not
err by simply directing the jury to assume that a sentence of life imprisonment
without the possibility of parole means that the defendant will be confined for life
without the opportunity of parole, and telling the jury not to speculate on any
events that might lead to a different outcome. (See People v. Snow (2003) 30
Cal.4th 43, 123; People v. Kipp, supra, 18 Cal.4th 349, 378-379.)

E. Other Constitutional Issues
Defendant asks us to reconsider the United States Supreme Court’s decision
in Pulley v. Harris (1984) 465 U.S. 37, 51, which held that California’s death
penalty law is constitutional although it does not provide for proportionality
review. Presumably defendant raises this contention to preserve the issue for
federal review, as we have no authority to reconsider decisions of the United
States Supreme Court.
Finally, defendant contends that California’s death penalty law violates
international law. He first asserts that it violates the International Covenant of
Civil and Political Rights, which prohibits the “arbitrary” deprivation of life (art.
VI, § 1) and bars “cruel, inhuman or degrading treatment or punishment” (art.
VII). The covenant, however, specifically permits the use of the death penalty if
“imposed only for the most serious crimes in accordance with the law in force at
the time of the commission of the crime.” (Art. VI, § 2; see People v. Cornwell
(2005) 37 Cal.4th 50, 106.) And when the United States ratified the treaty, it
specially reserved the right to impose the death penalty on any person, except a
pregnant woman, duly convicted under laws permitting the imposition of capital
punishment. (See 138 Cong. Rec. S-4718-01, S4783 (1992); People v. Brown
(2004) 33 Cal.4th 382, 403-404.)
24

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Defendant also argues that the “regular” imposition of capital punishment
in California violates international norms, and hence constitutes cruel and unusual
punishment in violation of the Eighth and Fourteenth Amendments to the federal
Constitution. This is a variation on the familiar argument that California’s death
penalty law does not sufficiently narrow the class of death-eligible defendants to
limit that class to the most serious offenders, a contention we have rejected in
numerous decisions. (See People v. Jones, supra, 30 Cal.4th at pp. 1127-1128;
People v. Wader (1993) 5 Cal.4th 610, 669.)
IV. DISPOSITION
The judgment is affirmed.
KENNARD,
J.
WE CONCUR:

GEORGE, C. J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.

25

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Perry
__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S055474
Date Filed: April 24, 2006
__________________________________________________________________________________

Court:

Superior
County: Kings
Judge: Louis F. Bissig

__________________________________________________________________________________

Attorneys for Appellant:

Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, Alison Pease and
Ronald F. Turner, Deputy State Public Defenders, for Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves,
Assistant Attorney General, Patrick J. Whalen and John G. McLean, Deputy Attorneys General, for
Plaintiff and Respondent.

---

Counsel who argued in Supreme Court (not intended for publication with opinion):

Ronald F. Turner
Deputy State Public Defender
801 K Street, Suite 1100
Sacramento, CA 95814
(916) 322-2676

John G. McLean
Deputy Attorney General
1300 I Street
Sacramento, CA 94244-2550
(916) 324-5184

---

Opinion Information

Date:	Docket Number:
Mon, 04/24/2006	S055474

Disposition
Apr 24 2006	Opinion: Affirmed

Dockets
Jul 24 1996	Judgment of death
Aug 14 1996	Filed certified copy of Judgment of Death Rendered   7-24-96.
Aug 14 1996	Application for Extension of Time filed   By County Clerk to Complete C.T.
Aug 16 1996	Extension of Time application Granted   To County Clerk To 10-15-96 To Complete C.T.
Feb 13 2001	Filed:   applt's applic. for appointment of counsel (IFP form).
Feb 13 2001	Order appointing State Public Defender filed   to represent applt for the direct appeal.
Feb 26 2001	Received:   notice from superior court that record was transmitted to appellant's counsel on 2-23-2001.
Apr 24 2001	Counsel's status report received (confidential)   from State P.D.
May 24 2001	Application for Extension of Time filed   By applt. to request corr. of the record. (1st request)
May 31 2001	Filed:   Suppl. declaration for extension of time by applt. to request corr. of the record.
Jun 4 2001	Extension of Time application Granted   To 7/30/2001 to applt. to request corr. of the recoord.
Jul 3 2001	Counsel's status report received (confidential)   from State P.D.
Jul 24 2001	Application for Extension of Time filed   By applt. to request corr. of the record. (2nd request)
Jul 30 2001	Extension of Time application Granted   To 9/28/2001 to applt. to request corr. of the record.
Aug 3 2001	Counsel appointment order filed   appointing Gary B. Wells to represent applt for state habeas corpus/executive clemency proceedings related to the automatic appeal.
Sep 7 2001	Counsel's status report received (confidential)   from State P.D.
Sep 24 2001	Application for Extension of Time filed   By applt. to request corr. of the record. (3rd request)
Sep 28 2001	Extension of Time application Granted   To 11/27/2001 to applt. to request corr. of the record.
Oct 11 2001	Counsel's status report received (confidential)   from atty Wells.
Oct 26 2001	Compensation awarded counsel   Atty Wells
Nov 8 2001	Counsel's status report received (confidential)   from State P.D.
Nov 26 2001	Request for extension of time filed   by applt. to request corr. of the record. (4th request)
Nov 28 2001	Extension of time granted   To 1/28/2002 to applt. to request corr. of the record. Counsel anticipates filing the record correction motion in the superior court by 2/25/2002. Only 1 further extension, for no more than 30 days, is contemplated.
Nov 28 2001	Compensation awarded counsel   Atty Wells
Dec 7 2001	Counsel's status report received (confidential)   from atty Wells.
Jan 9 2002	Counsel's status report received (confidential)   from State P.D.
Jan 28 2002	Request for extension of time filed   By applt. to request correction of the record. (5th request)
Jan 31 2002	Extension of time granted   To 2/27/2002 to applt. to request correction of the record. Dep. State PD Turner anticipates filing the request by 2/27/2002. No further extension is contemplated.
Feb 5 2002	Counsel's status report received (confidential)   from atty Wells.
Feb 22 2002	Request for extension of time filed   By applt. to request correction of the record.(6th request)
Feb 22 2002	Compensation awarded counsel   Atty Wells
Feb 25 2002	Extension of time granted   To 3/6/2002 to applt. to request correction of the record. Dep. State PD Turner anticipates filing the request by 3/6/2002. After that date, no further extension will be granted.
Mar 6 2002	Received copy of appellant's record correction motion   Applt's request for correction and completion of record. (30 pp.)
Mar 14 2002	Counsel's status report received (confidential)   from State P.D.
Apr 10 2002	Counsel's status report received (confidential)   from atty Wells.
Apr 17 2002	Compensation awarded counsel   Atty Wells
May 14 2002	Counsel's status report received (confidential)   from State P.D.
May 30 2002	Compensation awarded counsel   Atty Wells
Jul 1 2002	Counsel's status report received (confidential)   from atty Wells.
Jul 16 2002	Counsel's status report received (confidential)   from State P.D.
Aug 14 2002	Compensation awarded counsel   Atty Wells
Sep 13 2002	Counsel's status report received (confidential)   from State P.D.
Sep 17 2002	Counsel's status report received (confidential)   from atty Wells.
Sep 19 2002	Compensation awarded counsel   Atty Wells
Nov 12 2002	Counsel's status report received (confidential)   from State P.D.
Nov 26 2002	Note:   Record on appeal returned to the trial court for the following reasons: 1. Preparation of alphabetical index to reporter's transcript. 2. Unredacted copies of redacted pages and jury key not transmitted with record. 3. Original certificate singed by Judge certifying record to this court not sent.
Nov 26 2002	Compensation awarded counsel   Atty Wells
Dec 17 2002	Counsel's status report received (confidential)   from atty Wells.
Jan 13 2003	Counsel's status report received (confidential)   from State P.D.
Jan 13 2003	Compensation awarded counsel   Atty Wells
Jan 29 2003	Compensation awarded counsel   Atty Wells
Feb 6 2003	Record on appeal filed   Clerk's transcript 36 volumes (9877 pp.) and reporter's transcript 14 volumes (2843 pp.) including material under seal, ASCII disks. Clerk's transcript includes 8247 pp. of juror questionnaires.
Feb 6 2003	Appellant's opening brief letter sent, due:   March 18, 2003.
Mar 5 2003	Counsel's status report received (confidential)   from atty Wells.
Mar 10 2003	Request for extension of time filed   to file appellant's opening brief. (1st request)
Mar 11 2003	Extension of time granted   to 5/19/2003 to file appellant's opening brief.
Mar 11 2003	Counsel's status report received (confidential)   from State P.D.
May 5 2003	Counsel's status report received (confidential)   from atty Wells.
May 13 2003	Counsel's status report received (confidential)   from State P.D.
May 14 2003	Compensation awarded counsel   Atty Wells
May 20 2003	Request for extension of time filed   to file appellant's opening brief. (2nd request)
May 22 2003	Extension of time granted   to 7/18/2003 to file appellant's opening brief. The court anticipates that after that date, only three further extensions totaling 180 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Jul 14 2003	Counsel's status report received (confidential)   from State P.D.
Jul 16 2003	Request for extension of time filed   to file AOB. (3rd request)
Jul 21 2003	Extension of time granted   to 9-16-2003 to file AOB. The court anticipates that after that date, only two further extensions totaling 120 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Sep 8 2003	Counsel's status report received (confidential)   from atty Wells.
Sep 10 2003	Counsel's status report received (confidential)   from State P.D.
Sep 10 2003	Request for extension of time filed   to file appellant's opening brief. (4th request)
Sep 12 2003	Extension of time granted   to 11/17/2003 to file appellant's opening brief. The court anticipates that after that date, only two further extensions totaling 90 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Nov 10 2003	Counsel's status report received (confidential)   from State P.D.
Nov 12 2003	Request for extension of time filed   to file appellant's opening brief. (5th request)
Nov 14 2003	Counsel's status report received (confidential)   from atty Wells.
Nov 17 2003	Extension of time granted   to 1/16/2004 to file appellant's opening brief. After that date, only two further extensions totaling about 75 additional days will be granted. Extension is granted based upon Deputy State Public Defender Ronald Turner's representation that he anticipates filing that brief by 3/31/2004.
Dec 23 2003	Compensation awarded counsel   Atty Wells
Jan 9 2004	Counsel's status report received (confidential)   from State P.D.
Jan 12 2004	Request for extension of time filed   to file appellant's opening brief. (6th request)
Jan 14 2004	Extension of time granted   to 3/16/2004 to file appellant's opening brief. After that date, only one further extension totaling about 15 additional days will be granted. Extension is granted based upon Deputy State Public Defender Ronald Turner's representation that he anticipates filing that brief by 3/31/2004.
Jan 27 2004	Counsel's status report received (confidential)   from atty Wells.
Mar 8 2004	Compensation awarded counsel   Atty Wells
Mar 9 2004	Request for extension of time filed   to file appellant's opening brief. (7th request)
Mar 9 2004	Counsel's status report received (confidential)   from State P.D.
Mar 12 2004	Extension of time granted   to 4/15/2004 to file the appellant's opening brief. Extension is granted based upon Deputy State Public Defender Ronald Turner's representation that he anticipates filing that brief by 4/15/2004. After that date, no further extension will be granted.
Mar 24 2004	Compensation awarded counsel   Atty Wells
Apr 5 2004	Counsel's status report received (confidential)   from atty Wells.
Apr 15 2004	Appellant's opening brief filed   (56,891 words - 190 pp.)
May 6 2004	Compensation awarded counsel   Atty Wells
May 12 2004	Request for extension of time filed   to file respondent's brief. (1st request)
May 18 2004	Extension of time granted   to 7-16-2004 to file respondent's brief.
May 20 2004	Motion to augment record filed (AA)   Motion by respondent to augment record with trial exhibit held by the Court of Appeal, Fifth Appellate District.
May 27 2004	Filed:   Appellant's response to respondent's motion to augment the record on appeal.
May 27 2004	Change of contact information filed for:   habeas corpus/executive clemency counsel Gary B. Wells.
Jun 9 2004	Compensation awarded counsel   Atty Wells
Jun 15 2004	Counsel's status report received (confidential)   from atty Wells.
Jul 12 2004	Request for extension of time filed   to file respondent's brief. (2nd request)
Jul 15 2004	Extension of time granted   to 9/14/2004 to file respondent's brief. After that date, only two further extensions totaling about 90 additional days will be granted. Extension is granted based upon Supervising Deputy Attorney General John G. McLean's representation that he anticipates filing that brief by 12/15/2004.
Aug 18 2004	Counsel's status report received (confidential)   from atty Wells.
Aug 18 2004	Compensation awarded counsel   Atty Wells
Sep 7 2004	Request for extension of time filed   to file respondent's brief. (3rd request)
Sep 13 2004	Extension of time granted   to 11/15/2004 to file respondent's brief. After that date, only one further extension totaling about 30 additional days will be granted. Extension is granted based upon Supervising Deputy Attorney General John G. McLean's representation that he anticipates filing that brief by 12/15/2004.
Sep 15 2004	Motion denied   Respondent's "Motion to Augment Record on Appeal With Trial Exhibit Held by the Court of Appeal, Fifth Appellate District," filed May 20, 2004, is denied in light of the inability of the clerk of the Court of Appeal, Fifth Appellate District, to locate People's Exhibit Number 44 in the record of People v. Leon Noble (May 26, 1998, F026332). Appellant's request that we strike from the record the unpublished opinion in People v. Leon Noble (May 26, 1998, F026332), attached to the motion herein, is granted.
Sep 15 2004	Compensation awarded counsel   Atty Wells
Oct 25 2004	Counsel's status report received (confidential)   from atty Wells.
Nov 10 2004	Request for extension of time filed   to file respondent's brief. (4th request)
Nov 16 2004	Extension of time granted   to 12/15/2004 to file respondent's brief. Extension is granted based upon Supervising Deputy Attorney General John G. McLean's representation that he anticipates filing that brief by 12/15/2004. After that date, no further extension will be granted.
Dec 1 2004	Compensation awarded counsel   Atty Wells
Dec 2 2004	Respondent's brief filed   (27,689 words; 91 pp.)
Dec 6 2004	Filed:   Supplemental declaration of service of respondent's brief.
Dec 20 2004	Request for extension of time filed   to file appellant's reply brief. (1st request)
Dec 21 2004	Extension of time granted   to 2/22/2005 to file appellant's reply brief.
Feb 15 2005	Request for extension of time filed   to file appellant's reply brief. (2nd request)
Feb 22 2005	Extension of time granted   to 4/25/2005 to file appellant's reply brief. Extension is granted based upon Deputy State Public Defender Ronald Turner's representation that he anticipates filing that brief by 4/25/2005. After that date, no further extension will be granted.
Mar 3 2005	Compensation awarded counsel   Atty Wells
Mar 14 2005	Counsel's status report received (confidential)   from atty Wells.
Mar 16 2005	Compensation awarded counsel   Atty Wells
Apr 25 2005	Appellant's reply brief filed   (8,750 words; 38 pp.)
May 16 2005	Counsel's status report received (confidential)   from atty Wells.
Jul 25 2005	Counsel's status report received (confidential)   from atty Wells.
Sep 28 2005	Counsel's status report received (confidential)   from atty Wells.
Oct 20 2005	Related habeas corpus petition filed (concurrent)   No. S138225
Nov 16 2005	Compensation awarded counsel   Atty Wells
Dec 21 2005	Motion for access to sealed record filed   respondent's request for sealed records pursuant to PC Section 987.9(d).
Dec 23 2005	Oral argument letter sent   advising counsel that case could be scheduled for oral argument as early as the February 2006 calendar, to be held the week of February 14, 2006, in Sacramento. 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.
Jan 19 2006	Case ordered on calendar   February 15, 2006, 2:00 p.m., in Sacramento
Jan 23 2006	Letter sent to:   lead counsel, requesting written stipulation whether each party will or will not stipulate to Justice Chin's participation in the case even though he will not be present at oral argument. Stipulations due on or before February 1, 2006.
Jan 30 2006	Filed letter from:   Supv. DAG McLean, dated 1/30/2006, re focus issues for oral argument. Also, respondent stipulates to Justice Chin's participation in the case even though he will not be present for oral argument.
Jan 31 2006	Filed:   Appellant's "Stipulation to Justice Chin's Participation in This Case Despite His Absence From Oral Argument."
Feb 2 2006	Received:   letter from respondent, dated 2-2-2006, with additional authority, and copy of unpublished Court of Appeal decision in People v. Leon Noble, case no. F026332.
Feb 3 2006	Received:   additional authorities from appellant.
Feb 6 2006	Filed:   appellant's focus issue letter, dated 2-3-2006. (1 pp.)
Feb 15 2006	Cause argued and submitted
Mar 22 2006	Motion for access to sealed record granted   Respondent's "Request for Sealed Records Pursuant to Penal Code Section 987.9, Subdivision (d)" is granted. The clerk is directed to provide respondent with copies of the following material from the record in People v. Perry, S055474: Sealed Supplemental Clerk's Transcript on Appeal, pages 73 through 104. Respondent is directed to use these documents only in these habeas corpus proceedings. (Pen. Code, section 987.9, subd. (d).) If respondent wishes to quote, cite, disclose, or describe these documents in any court papers, those papers must themselves be filed or lodged under seal, or respondent may move this court to unseal the documents. The clerk is directed to maintain these documents under seal. George, C.J., was absent and did not participate.
Mar 22 2006	Compensation awarded counsel   Atty Wells
Apr 24 2006	Opinion filed: Judgment affirmed in full   Majority Opinion by Kennard, J. -----joined by George, C.J., Baxter, Werdegar, Chin, Moreno & Corrigan, JJ.
May 25 2006	Remittitur issued (AA)
Jun 5 2006	Received:   acknowledgement of receipt of remittitur.
Jul 3 2006	Received:   courtesy copy of appellant's "motion to continue hearing to reimpose death sentence and set execution date," filed in the superior court.
Nov 15 2006	Compensation awarded counsel   Atty Wells
Apr 26 2007	Compensation awarded counsel   Atty Wells
Jan 23 2008	Compensation awarded counsel   Atty Wells
Jun 25 2008	Compensation awarded counsel   Atty Wells
Apr 23 2009	Compensation awarded counsel   Atty Wells

Briefs
Apr 15 2004	Appellant's opening brief filed
Dec 2 2004	Respondent's brief filed
Apr 25 2005	Appellant's reply brief filed

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