Filed 8/7/06
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S012944
v.
Los Angeles County
RICHARD RAMIREZ,
Super. Ct. No. A771272
Defendant and Appellant.
On November 7, 1989, defendant Richard Ramirez was sentenced to death
for the so-called Night Stalker murders following his convictions of 12 counts of
first degree murder (Pen. Code, § 187, subd. (a)),1 one count of second degree
murder (§ 187, subd. (a)), five counts of attempted murder (§§ 187/664), four
counts of rape (§ 261, former subd. (2)), three counts of forcible oral copulation
(§ 288a, former subd. (c)), four counts of forcible sodomy (§ 286, former subd.
(c)), and 14 counts of first degree burglary (§ 459). The jury found true
allegations of multiple-murder, burglary, rape, forcible sodomy, and, forcible-oral-
copulation special circumstances. (§ 190.2.) The court imposed a sentence of
death. This appeal is automatic. (§ 1239, subd. (b).) For the reasons that follow,
the judgment is affirmed.
1
All further statutory references are to the Penal Code, unless otherwise
noted.
FACTS
Prosecution’s
Case
On the afternoon of June 28, 1984, Jack Vincow arrived at his elderly
mother’s apartment in Los Angeles and was surprised to find the screen missing
from her open living room window and the front door unlocked. The missing
window screen was on the floor of the living room, and the contents of the living
room were in disarray. He found his mother, Jennie Vincow, dead in her
bedroom. Her body was on the bed with her feet at the head of the bed. Her
throat had been slashed and her body was partially covered by a blanket. He ran
out of the apartment and called the police.
The victim had been stabbed multiple times in her upper chest, neck, arm,
and leg and had some wounds on her hands. Her throat had been slashed “almost
from ear to ear.” It appeared she may have been sexually assaulted. Her dress
was partially lifted and her girdle had been pulled down and torn.
The temperature of the deceased’s liver was measured and the degree of
rigor mortis noted, but the coroner had difficulty estimating the time of death. The
temperature of the victim’s liver indicated she had been dead only a couple of
hours, but that estimate may have been inaccurate, because the body had been
covered and the room may have been warm. Other factors, particularly the degree
of rigor mortis, indicated the victim had been dead for “anywhere from six to eight
hours, up to as long as 72 hours.” Jack Vincow had seen his mother alive
approximately 24 hours earlier, however, when he had visited her the previous
afternoon.
Police recovered fingerprints from the screen found on the living room
floor that later were identified as defendant’s fingerprints.
2
Nine months later, on March 17, 1985, shortly before 11:00 p.m., Maria
Hernandez entered the garage of the condominium she shared with her roommate,
Dale Okazaki, in Rosemead. As the garage door was closing, she unlocked the
door to her condominium and heard a noise behind her. She turned to see
defendant holding a gun pointed at her face. She raised her hand to shield her face
and said something like “don’t” or “stop.” Defendant approached within a few
feet and fired the gun. The bullet hit Hernandez in her hand and apparently was
deflected by the keys she was holding. She fell to the floor. She did not lose
consciousness, but lay still. Defendant shoved her aside and entered the
condominium. The door closed behind him and Hernandez opened the garage
door and ran outside. She stumbled and fell. As she got up, she heard a “muffled
loud sound.” She ran around to the front of the condominium complex and saw
defendant leaving the complex. She ducked behind a car as he pointed the gun at
her. She said, “please don’t shoot me again” and he lowered the gun and ran
away.
Hernandez approached the front door of her condominium and found it
ajar. Inside, she found her roommate, Okazaki, lying dead on the kitchen floor.
She had been shot in the forehead from no more than 18 inches away. Her blouse
had been pulled up. Hernandez summoned the police. At a subsequent autopsy, a
.22-caliber bullet was retrieved from Okazaki’s skull.
Police found on the ground outside the garage a blue baseball-type cap
bearing the name of the rock group AC/DC. An associate of defendant’s later
testified that the cap looked like one defendant wore. Hernandez later identified
defendant as her assailant at a police lineup and identified defendant at trial.
About an hour after Dale Okazaki was murdered and Maria Hernandez was
shot, shortly before midnight on March 17, 1985, Jorge Gallegos was sitting in his
parked car with his girlfriend in front of her residence in Monterey Park when his
3
attention was drawn by the sound of two cars applying their brakes. A car driven
by defendant apparently had forced a car driven by Tsai-Lian Yu to the side of the
road, where it was forced to stop with its bumper against the bumper of a parked
car. Defendant got out of his car and pulled Yu out of her car as she fought.
Joseph Duenas was in his second-floor apartment when he heard a woman
scream “help me.” He went onto his balcony and saw Yu struggling with a man
near the curb. Duenas grabbed a telephone to call the police and returned to the
balcony. He saw the man push Yu away, enter his car, and drive away. As
defendant drove past Gallegos, Gallegos could see his profile and noted the license
number of defendant’s vehicle. Gallegos identified defendant at trial.
After defendant left, Yu crawled a short distance and then lay still. A
police officer soon arrived and found Yu breathing but unconscious. She stopped
breathing and the officers administered “CPR” until an ambulance arrived. She
had been shot twice in the chest at close range and was pronounced dead at the
hospital. It later was determined that a .22-caliber bullet recovered from Yu’s
body had been fired from the same gun as the bullet that killed Dale Okazaki.
One of the victim’s shoes was found on the ground and the other was in her
car. A torn portion of a $20 bill was on the ground. The car was running with the
transmission in reverse. Its headlights were on and the driver’s side door was
open.
Bruno Polo managed two pizzerias owned by Vincent Zazzara. On
March 28, 1985, about 8:30 p.m., Polo went to the home that Vincent Zazzara
shared with his wife Maxine to deliver the day’s receipts from the restaurant and
found the screen door unlocked and the front door ajar. Polo rang the doorbell and
called out Vincent’s name, but received no response. He placed the receipts in the
mail slot, as was his usual practice, and left. When Polo had not heard from
Vincent Zazzara by the following morning, he and a fellow employee went back
4
to the Zazzaras’ house and found the door in the same position as the night before.
They entered and found Vincent Zazzara lying dead on the couch in the den. He
had been shot in the head from close range.
Maxine Zazzara’s body was found in the bedroom lying on her bed,
partially covered by a sheet. Her pajama top had been pulled up, exposing her
breasts, and her pajama bottoms had been pulled down around her ankles. She
had been shot in the head and neck at close range, stabbed in her neck, cheek,
chest, abdomen, and pubic area, and her eyes had been cut out. Her eyes were
never found. Drawers had been pulled out in the bedroom and bathroom, and
clothing was strewn around the room. It later was determined that two .22-caliber
bullets removed from Maxine Zazzara’s head and neck had been fired from the
same gun later used to kill Chainarong K.
Police discovered that the screen had been removed from a patio window at
the Zazzara residence, which had been pried open. A bucket had been placed
underneath the window. Footprints on the bucket and in the flower bed were
made by an Avia athletic shoe.
On May 9, 1985, an intruder entered a house in Monrovia by removing
louvers from a kitchen window and climbing onto a patio chair that had been
placed against the wall beneath the window. A shoe print recovered from the
kitchen sink near the window was made by an Avia athletic shoe. Defendant’s
palm print was found on the sink.
On May 14, 1985, about 5:00 a.m., a police dispatcher received a 911 call
from a residence in Monterey Park. A man repeated, “Help me, help me.” The
dispatcher sent an ambulance, which arrived within five minutes. The firefighter
who responded found the iron security gate and the front door open. He entered
and encountered Yuriko Lillie Doi in a nightgown who motioned toward her
husband, William Doi, who was sitting in a chair in the den by a telephone; he was
5
unconscious and breathing with difficulty. Books and papers were strewn around
the room. After taking a few labored breaths, Mr. Doi stopped breathing and the
firefighters tried to resuscitate him. An ambulance arrived and took him to the
hospital where he was pronounced dead. Mr. Doi, who was 65 years old, had
been shot in the head with a .22-caliber bullet fired from a Jennings semiautomatic
pistol that later was recovered from Jose Perez, a convicted felon who had
obtained the gun from defendant.
Mrs. Doi was dressed in a nightgown. She had a thumb cuff2 on her left
thumb and her other thumb had blood on it. Her face was swollen and bruised.
The den and bedroom had been ransacked. Dresser drawers were open and
clothes had been thrown around the room. Mrs. Doi, who had suffered a stroke
prior to this incident, was unable to testify at trial.
A screen had been removed from an open bathroom window and was lying
on the ground. Outside the window, the police found footprints from an Avia
athletic shoe.
Linda Doi-Fick, the daughter of William and Yuriko Doi, later identified
several items of property that had been taken from her parents’ home, including
her mother’s wallet and pieces of jewelry, which had been recovered from Felipe
Solano, who had purchased the items from defendant.
Launie Dempster, who delivers newspapers, testified that she had seen
defendant in a car parked near the Dois’ home an hour and a half before the attack.
On May 31, 1985, Carlos Valenzuela noticed that newspapers had been left
in the driveway of the house shared by 83-year-old Mabel Bell and her 79-year-
old sister, Florence L. He knocked on their door, but received no reply. The next
2
A restraining device similar to handcuffs that attach to the subject’s
thumbs.
6
day, he returned and knocked on the door again. When there was no reply, he
entered the house through the unlocked door and found Bell and Florence L.
Florence L. was lying on her bed in one bedroom. Bell was lying on the floor next
to the bed in another bedroom with a table on her chest. Valenzuela removed the
table and left to call the police.
Paramedics arrived and found Bell still breathing and took her to a hospital.
She was comatose. Her skull had been fractured; the injury could have been
caused by a hammer. She had a black eye. A red circle with a star in it (a
pentagram)3 had been drawn on her thigh, perhaps using lipstick. She had injuries
on her body caused by burns. Bell died from her injuries about a month later in
July, 1985. In the other bedroom, Florence L.’s wrists had been bound using an
electric cord and her ankles were taped together. Above the bed, a pentagram had
been drawn on the wall. A tube of lipstick was found on the floor. A hammer
lying on a table next to the bed had blood and hair on it. Florence L. was taken to
a hospital, where an examination revealed evidence that she had been sexually
assaulted. She had a puncture wound in her head, two black eyes, and her face
was bruised. Florence L. later regained consciousness, but police were unable to
communicate with her.
The house had been ransacked. A partial shoe print found on an unplugged
clock was consistent with an Avia athletic shoe. Several items taken from the
residence later were recovered from Felipe Solano, who had purchased the items
from defendant.
3
A pentagram is “A five-pointed figure formed by producing the sides of a
pentagon both ways to their points of intersection, so as to form a five-pointed star
. . . . Formerly used as a mystic symbol and credited with magical virtues.” (11
Oxford English Dict. (2d ed. 1989) p. 495.)
7
Before dawn on May 30, 1985, Carol K. was awakened in her Burbank
home by defendant. He may have entered through an unlocked “doggie door” in
the back door. He was standing over her bed, holding a gun, and shining a
flashlight in her eyes. Defendant ordered her to “get up and don’t make any
noise.” He took her into the bedroom of her 12-year-old son, woke him up, and
handcuffed her to her son. He called her names and repeatedly asked where was
her money, jewelry, and other property. Defendant ran from room to room,
ransacking the house. He found her wallet and removed her money. Defendant
made Carol K. and her son lie on the floor and covered them with a sheet. He then
removed the handcuffs from Carol K., handcuffed her son behind his back, and
put him in a closet. Defendant took Carol K. to her bedroom, put the gun to her
head and threatened to kill her, then tied her hands behind her with a pair of
pantyhose. He forced her to kneel with her head on the bed and covered her head
with a pillow. Periodically, he punched her in the back. He ordered her to lie on
the bed and raped her and sodomized her. He brought her son from the closet and
handcuffed them together to the bed. Defendant said, “I don’t know why I’m
letting you live. . . . I’ve killed people before.” He threatened to have a friend
come back and kill her if she went to the police. Defendant left and they called the
police.
The victim later identified defendant in a lineup and at trial and identified
several pieces of jewelry that police had recovered from Felipe Solano, who had
purchased the items from defendant.
Mary Cannon was a widow in her eighties who lived alone in Arcadia. On
the morning of July 2, 1985, a neighbor, Frank Starich, noticed that a window
screen was lying on the front porch and her newspaper was in the driveway. He
knocked on the door, but received no response, so he retrieved an extra key
Cannon had given him and Starich and his wife entered the house but soon left to
8
call the police when they saw that things in the house had been thrown on the
floor. The police arrived and found Cannon lying dead on the bed. She had been
strangled and beaten and stabbed in the neck. Her nose was broken and both eyes
blackened. She had a large, “extremely lethal,” wound in her neck. A window in
the bedroom was open and the bedroom had been ransacked.
On the carpet and on a tissue, police found shoe prints from an Avia
athletic shoe.
Several days after Cannon was murdered, shortly after midnight on July 5,
1985, 16-year-old Whitney B. dressed for bed and sat down on her bed with the
light on. Several hours later, she awoke lying facedown on her bed covered with
blood. She had multiple skull fractures, which could have been caused by a tire
iron that had been left by her bed. A physician later testified, “This was the most
massive head injury I’ve ever seen. She had greater than forty inches of linear
lacerations criss-crossing every direction on her head.” She had been strangled,
which resulted in a fractured larynx, and had black eyes. She summoned her
father, who called the police.
The screen had been removed from her bedroom window. A shoe print
from an Avia athletic shoe was found in the bedroom.
Two days after the attempted murder of Whitney B., on July 7, 1985, a
neighbor of Joyce Nelson noticed that a screen had been removed from Nelson’s
bedroom window. Finding the front door ajar and seeing that Nelson’s home had
been ransacked, he called the police, who found Nelson lying dead on her
bedroom floor. She had died from blunt force head injuries and had been
strangled. She had multiple bruises, lacerations and contusions on her face.
Between 3:00 and 4:30 a.m. that morning, Launie Dempster, the newspaper
deliverer, had seen defendant walking to his car, which was parked next door to
Nelson’s house in Monterey Park. Dempster returned about 15 minutes later and
9
noticed the car remained but defendant was gone. In the flower bed beneath
Nelson’s open bedroom window, police found a shoe print from an Avia athletic
shoe.
About 3:30 a.m. that same morning, July 7, 1985, Sophie D. awoke in her
home in Monterey Park before dawn when the bedroom light went on. Defendant
put a gun to her head, covered her mouth with a gloved hand, and threatened to
kill her if she made a sound. Defendant handcuffed her, took several items of
jewelry and some money, and then raped and sodomized her. Defendant
handcuffed the victim to the bed and fled.
The victim yelled for help from a neighbor who was a deputy sheriff. He
responded and called the police, who found that defendant had entered the house
through a “cat door,” which had been bent out of shape.
The victim later identified defendant at a lineup and identified several
pieces of jewelry that police had recovered from Felipe Solano, who had
purchased the items from defendant. The victim repeated her identification of
defendant at trial.
On the morning of July 19, 1985, the bodies of Maxon and Lela Kneiding
were discovered in their bed by their daughter, who had come looking for them
after they failed to meet her at a restaurant for breakfast as planned. Their throats
had been slashed and they had been shot in the neck and head. The bedroom had
been ransacked. A .22-caliber bullet recovered from Ms. Kneiding’s brain had
been fired from the same gun that fired the bullets that killed Dale Okazaki and
Tsai-Lian Yu. The victims’ daughter later identified several pieces of her parents’
jewelry that police had recovered from Felipe Solano, who had purchased them
from defendant.
The next day, shortly after midnight on July 20, 1985, Somkid K. was
sleeping on her living room couch when she was awakened by the sound of the
10
sliding screen door opening. Defendant entered holding a gun and ordered her to
be quiet. He went into the bedroom and shot her husband, Chainarong, in the
head, killing him. Defendant returned to the living room and brought Somkid K.
into the bedroom, threatening to kill her children if she resisted. He raped her,
sodomized her, beat her, and forced her to orally copulate him. Defendant tied up
her eight-year-old son and hit him. He took jewelry, money, and a videocassette
recorder and left.
Police found shoe prints from an Avia athletic shoe on the front porch, the
rear porch, and inside the house. The victim later identified defendant in a lineup
and identified several pieces of jewelry and a suitcase that police had recovered
from Felipe Solano, who had purchased them from defendant. A .22-caliber bullet
recovered from Chainarong K.’s head had been fired from the same gun that fired
the bullets that killed Vincent and Maxine Zazzara.
Early in the morning on August 5, 1985, Virginia Petersen woke up to find
defendant walking into her bedroom pointing a gun at her. She asked who he was
and demanded that he leave. He told her to be quiet, asked, “Where is it?” and
then shot her in the face. Her husband, Christopher Petersen awoke and sat up and
defendant shot him in the head, but he did not lose consciousness. He jumped
from the bed and chased defendant, who fired at least two more shots and then
fled through a sliding glass door that had been left unlocked. Christopher Petersen
drove his wife to the hospital.
Virginia Petersen later identified defendant at a lineup and at trial.
Before dawn on the morning of August 8, 1985, Sakina A. was awakened
by the sound of defendant shooting her husband, Elyas, in the head as he lay next
to her, asleep. Defendant struck Sakina A. in the head and handcuffed her hands
behind her back. He continued to beat her, forcing her to “swear upon Satan” that
she would not scream. Defendant blindfolded and gagged the victim before
11
ransacking the bedroom, demanding money and jewelry. Defendant removed the
victim’s blindfold and gag and she directed him to a briefcase that contained
jewelry and to her purse, which contained money. Defendant took a ring and
necklace she was wearing. Defendant forced the victim to orally copulate him,
then raped and sodomized her. The victim’s three-year-old son awoke, and
defendant bound his hands and feet and covered his head with pillows. He
handcuffed Sakina A. to a doorknob, threatening to return and kill her, her three-
year-old son, and her infant child if she called the police. Defendant then fled.
Sakina A. untied her son, called in vain for her husband, and screamed for help.
Receiving no reply, she sent her son to a neighbor’s house by promising the child
that the neighbor would give him popsicles and candy bars. The neighbor
returned the child to his home, found Sakina A., and summoned the police.
Police found a sliding glass door had been pried open. Elyas A. had been
killed by a single bullet to the head. Subsequent analysis revealed that a .25-
caliber bullet recovered from the victim’s head had been fired from the same gun
that fired bullets recovered from the home of Virginia and Christopher Petersen.
Sakina A. later identified defendant at a lineup and identified a television, a
videocassette recorder, and several pieces of jewelry that police had recovered
from Felipe Solano, who had purchased them from defendant. The victim
repeated her identification of defendant at trial.
On August 30, 1985, law enforcement officers had focused their suspicion
upon defendant and obtained a photograph of him, which they distributed to law
enforcement agencies throughout Southern California and released to the news
media. Defendant’s photograph appeared in the newspaper the next morning.
On the morning of August 31, 1985, Manuela Villanueva was sitting in her
parked car when defendant ran up and demanded her car keys. She ran out of the
car and called for help. Frank Moreno and Carmelo Robles responded and chased
12
defendant down an alley. Defendant climbed over a fence and encountered
Fastino Pinon, who was working on his car, which was running. Defendant
entered the vehicle, saying he had a gun, but Pinon attempted to pull defendant
from the vehicle. They struggled as the car moved and struck a chimney.
Defendant left and ran toward the street.
Angelena Delatorre was sitting in her parked car across the street from
Pinon’s house when defendant demanded her car keys. She refused and he pulled
her out and entered her car. She screamed and her neighbor, Jose Burjoin,
responded and ordered defendant to leave. Delatorre’s husband, Manuel, arrived
and struck defendant on the head with a steel bar. Defendant left the car and ran
down the street. Manuel Delatorre pursued and struck defendant on the head a
second time, causing defendant to fall. He stayed with defendant until the police
arrived, as a crowd formed. Some people in the crowd were holding the
newspaper with defendant’s photograph on the front page. On the ride to the
police station, defendant asked the officer to “just shoot me,” saying he wanted to
die. He said, “all the killings are going to be blamed on me.”
At the police station, defendant spontaneously confessed: “I want the
electric chair. They should have shot me on the street. I did it, you know. You
guys got me, the Stalker. Hey, I want a gun to play Russian Roulette. I’d rather
die than spend the rest of my life in prison. Can you imagine the people caught
me, not the police.” Defendant laughed and then added: “You think I’m crazy,
but you don’t know Satan.” He hummed the song “Night Prowler” by the rock
group AC/DC.
Defendant continued: “Of course I did it, you know that I’m a killer. Give
me your gun, I’ll take care of myself. You know I’m a killer, so shoot me, I
deserve to die. You can see Satan on my arm.” Defendant moved his shirt sleeve
to reveal a pentagram drawn on his left shoulder.
13
On September 2, 1985, a guard saw defendant in his jail cell bleeding from
his right palm. Defendant used his blood to draw a pentagram on the floor and
write the number 666. On October 24, 1985, during defendant’s arraignment in
municipal court, defendant turned to the audience, raised his hand, and said, “Hail
Satan.” A pentagram and the number 666 appeared on defendant’s palm. On
October 30, 1986, defendant called a guard over to his jail cell, displayed
photographs of two of the murder victims, and said: “People come up here and
call me a punk and I show them the photographs and tell them there’s blood
behind the Night Stalker and then they go away all pale.”
Defense
Case
The defense focused on the lack of physical evidence tying defendant to the
charged crimes, attacked the reliability of the identifications of defendant, and
offered the alibi that defendant was in Texas when the crimes against Mabel Bell,
Florence L., and Carol K. were committed.
The manager of Jennie Vincow’s apartment building testified that the
windows in the victim’s apartment were in working order following the murder.
Forensic pathologist Dr. Werner Spitz testified, based upon the temperature of
Vincow’s apartment, her body temperature when found, and the circumstance that
her body had been covered, that Vincow had been dead four to five hours when
her body was discovered.
The police officer who discovered the AC/DC cap at the scene of Dale
Okazaki’s murder testified the cap was just inside the threshold of the garage.
Okazaki’s roommate, Maria Hernandez, was shown a photographic lineup that did
not include defendant’s photograph, and she said one of the photographs
resembled her attacker. That person was apprehended and questioned, but then
released.
14
A police officer who responded to the scene where Tsai-Lian Yu was
murdered testified that witness Jorge Gallegos told him that he never saw the
assailant fight with the victim, did not hear gunshots, and would not be able to
identify the assailant. Photographs later taken of the crime scene showed poor
lighting conditions that would make an identification of the assailant difficult. A
defense pathologist testified that Yu’s injuries were consistent with her having
been shot while seated in her car.
Photographs were taken of the location near the Doi residence where
Launie Dempster, the newspaper deliverer, had seen defendant in a parked car
shortly before the murder. The photographer testified that shadows cast by the
car’s roof would have obscured the face of the driver in a parked car.
Defendant’s father, Julian Tapia, testified that defendant was with him in El
Paso, Texas, from May 22 or 23, 1985, until May 31, 1985, which included the
period during which Mabel Bell was attacked, her sister, Florence L., was
murdered and Carol K. was attacked. Hairs recovered in Mabel Bell’s house were
dissimilar to defendant’s hair.
A blood sample recovered from the house in which Mary Cannon was
murdered differed from defendant’s blood type.
Defendant introduced photographs of the residences of Joyce Nelson and
Christopher and Virginia Petersen.
Police showed Sophie D. the same photographic lineup not including
defendant’s photograph that had been shown to Maria Hernandez, and Sophie D.
picked out the same person who, as noted above, was apprehended, questioned
and released.
A criminalist examined hairs recovered from the home of Maxon and Lela
Kneiding and testified that they were dissimilar to defendant’s hair.
15
A criminalist testified that it was uncertain whether semen collected from
Sakina A. could be matched to defendant.
Deputy Public Defender Allen Adashek, who was appointed to represent
defendant soon after his arrest, testified regarding the circumstances of the lineup
in which defendant was identified by several of the victims. Deputy Public
Defender Judith Crawford was present at the lineup as an observer for defendant.
Just prior to the lineup, Crawford saw a police officer who was conversing with
some children raise his index and middle fingers. When the lineup formed,
defendant was the second person in line. Crawford later saw another officer make
a similar gesture, raising two fingers. A still photograph taken from a videotape of
the lineup showed a police officer raising two fingers.
Psychologist Elizabeth Loftus, an expert in eyewitness identifications,
testified that memory degrades over time, that witnesses who are assaulted with
weapons focus upon the weapon rather than the features of the assailant, and that
members of one race have difficulty identifying members of other races.
Sandra Hotchkiss testified for the defense and acknowledged that she was
incarcerated at the California Institution for Women serving a term for burglary.
She had committed numerous burglaries with defendant and had seen him sell
jewelry to Felipe Solano. Defendant was an amateur burglar. She never saw
defendant with a gun and never saw him act violently, even when provoked.
Penalty
Phase
On September 20, 1989, after the court accepted the jury’s guilty verdicts,
the prosecution indicated that it did not intend to present any further evidence at
the penalty phase, but reserved the right to call rebuttal witnesses. The court
granted defendant a one-week continuance to present his case.
16
On September 27, 1989, defense counsel announced that the defense had
made a “tactical decision” not to present any evidence at the penalty phase.
Defense counsel then questioned defendant as follows:
“[Defense counsel]: Mr. Ramirez, is it true that do you [sic] not wish to
take the stand in your behalf during this phase of the trial?
“The Defendant: Yes.
“[Defense Counsel]: And you know that you have a right to take the stand?
“The Defendant: Yes.
“[Defense Counsel]: You know you have a right not to take the stand?
“The Defendant: Yes.
“[Defense Counsel]: You know that Mr. Hernandez [codefense counsel]
has been in El Paso talking to friends and relatives about testifying on your
behalf?
“The Defendant: Yes.
“[Defense Counsel]: And you agree with the tactical decision that we made
not to put on any evidence at this stage of the proceeding?
“The Defendant: Yes.”
In response to the court’s question, Daniel Hernandez confirmed that he
had “done extensive work” interviewing potential witnesses in El Paso, and had
located “witnesses who are willing to come forth,” but explained that the defense
had decided not to present these witnesses. The court stated: “The court finds that
the defendant’s waiver of his right to testify and his waiver of the right to put on
evidence during the penalty phase, these waivers have been freely, voluntarily and
intelligently made and joined in by his counsel.”
17
DISCUSSION
A. Pretrial
Issues
1. Retention of Counsel
Citing the decisions in Wheat v. United States (1988) 486 U.S. 153 and
People v. Ortiz (1990) 51 Cal.3d 975, defendant argues that the trial court violated
its “positive, sua sponte duty” under the Sixth Amendment of the federal
Constitution and article I, section 15 of the California Constitution “to ensure that
appellant would be represented by qualified, effective counsel” by granting
defendant’s request for substitution of counsel. We disagree.
As noted above, defendant was arrested on August 31, 1985. On
September 3, 1985, a felony complaint was filed against defendant and the public
defender was appointed as counsel. Defendant appeared in court represented by
the public defender on September 9, 17, and 27, 1985.
On October 9, 1985, Municipal Court Judge Elva Soper removed the public
defender as counsel subject to defendant providing a written agreement retaining
attorney Joseph Gallegos. On October 22, 1985, Judge Soper noted that defendant
had failed to provide a written agreement retaining attorney Gallegos. Defendant
indicated he no longer intended to retain Gallegos and instead asked to retain
attorneys Arturo Hernandez and Daniel Hernandez (who are unrelated). The court
stated that it had “conducted an extensive examination of the attorneys which the
defendant desires to have substituted in as the retained counsel.” Noting that
defendant had the “right to retain counsel of his choice,” the court stated that “it is
important the defendant be fully informed regarding his choice of counsel at this
point rather than to have serious questions arise later which could result in even
greater delay. This court cannot guarantee that such result will not happen
anyway; it can only attempt to safeguard against it.” The court stated that it had
18
“informed Mr. Ramirez that neither Daniel Hernandez nor Arturo Hernandez have
the legal experience which would qualify them to be appointed by this court to
represent him in this case, nor do either attorney meet the qualifications set forth
by the Los Angeles County Bar for the indigent criminal defense appointment
panel.”
The court was interrupted by an objection from Arturo Hernandez, stating
that he and Daniel Hernandez were not seeking appointment by the court but had
been retained by defendant’s family and terming the court’s remarks “out of
order.” The court continued, stating: “Court is aware of that. Under the bar plan,
an attorney would have to be a member of the California bar for a minimum of ten
years, be an attorney of record in at least fifty trials, forty of which must have been
submitted to a jury for decision, and thirty of the fifty must have been felonies.
The attorneys must have been attorneys of record in at least three cases where the
initial charge was a violation for Penal Code section 187 and at least one of those
cases must have been submitted to a jury for decision.
“Both attorneys fall short of these qualifications. In addition, it has been
brought before the court’s attention that both Arturo Hernandez and Daniel
Hernandez have been held in contempt by the courts in Santa Clara County on at
least two occasions; that on a third occasion a contempt citation was not sustained
against Daniel Hernandez –.” Daniel Hernandez interrupted the court to object on
the ground that this material had been discussed during an in camera hearing,
noting that he and Arturo Hernandez had been “assured that any information given
to the court would be kept closed.” The court continued, stating: “They are a
matter of public record, sir. . . . And that there is presently pending in that court
another contempt hearing for Daniel Hernandez’ failure to appear at a preliminary
hearing where the defendant is charged with a violation of section 187 of the Penal
Code. [¶] . . . [¶]
19
“It also has been brought to the court’s attention that there is presently
pending in Superior Court of Santa Clara County a hearing set for November 12 in
the case of People versus Pinon where the district attorney’s office has asked the
court for – has asked for monetary sanctions against Mr. Daniel Hernandez for his
failure to appear at the hearing in the Pinon case.
“In view of the above facts, the court is ordering that both attorneys make
full disclosure to Mr. Ramirez of any facts which might bear on their ability to
effectively represent him in this case. . . . After this disclosure, if there are any
made, the court will, if Mr. Ramirez desires, offer him independent assistance to
check any information disclosed to him.
“This court fully recognizes that the defendant has the right to retained
counsel of his choice at all stages of the proceedings against him. However, it is
also the view of the court that the defendant should be fully informed regarding
his choice of counsel, so that he may make his decision knowingly and
intelligently. It is a decision which must be made by the defendant. . . . In
addition, the court has requested that the agreement retaining Mr. Arturo
Hernandez and Mr. Daniel Hernandez be reduced to writing and that Mr. Ramirez
be given the opportunity to discuss that contract with an independent attorney
appointed by this court. [¶] . . . [¶]
“For these reasons, the court is going to take the matter of the substitution
of attorneys under submission until October 24, 1985, to allow the defendant to
investigate the attorneys he now wishes to hire, if he so desires, and for him to
have the contractual agreement looked at by an independent attorney. For that
purpose the court has appointed attorney Victor E. Chavez of Los Angeles
County.”
On October 24, 1985, the prosecutor, defendant, Gallegos, Arturo
Hernandez, and Daniel Hernandez appeared in camera before the municipal court.
20
Arturo Hernandez represented that defendant had entered into a written contract
retaining him and Daniel Hernandez as his attorneys. The court had the following
exchange with defendant:
“The Court: Since you are bilingual, I want to inquire: the contract was
written in English?
“The Defendant: Yes. And I did read it.
“The Court: Did you read the entire contract?
“The Defendant: Entirety.
“The Court: Did you have any questions regarding any of the conditions in
that contract?
“The Defendant: No questions.
“The Court: Did you understand each item in that contract?
“The Defendant: Completely.
“The Court: You are aware that the court did provide an independent
attorney for you to discuss any questions you might have with him?
“The Defendant: Yes. He was provided and he did visit me yesterday, but
I refused to see him.”
The court further questioned defendant regarding the possibility of a
conflict between him and his counsel, and defendant stated he understood but felt
there would be no conflict. Defendant declined the court’s offer to permit
defendant to speak to an independent attorney. The court invited defendant to
request to speak to an independent attorney “if at any time in the future you
change your mind.”
The in camera hearing concluded and, in open court, defendant
acknowledged that he wished to substitute Arturo Hernandez and Daniel
Hernandez as his counsel. The court relieved Gallegos as counsel and permitted
the substitution. More than three years later, on March 6, 1989, during the
21
presentation of the prosecution’s case-in-chief, the trial court appointed Attorney
Roy Clark as an additional cocounsel for defendant.
As noted above, defendant argues that the trial court erred in granting his
request for substitution of counsel, but the cases he cites do not support his
assertion that the trial court had a sua sponte duty to ensure that he would be
represented by qualified, effective counsel. To the contrary, the United States
Supreme Court has just reiterated that an element of a defendant’s right to counsel
“is the right of a defendant who does not require appointed counsel to choose who
will represent him. [Citations.]” (United States v. Gonzalez-Lopez (June 26, 2006,
No. 05-352) ___ U.S. ___ [2006 WL 1725573, p. *3].) A criminal defendant has
a qualified right to retain counsel of his choice, and the trial court can deny a
defendant’s timely request to substitute counsel only if it “ ‘will result in
significant prejudice to the defendant.’ ” (People v. Gzikowski (1982) 32 Cal.3d
580, 587.) “The right to effective assistance of counsel [citations] encompasses
the right to retain counsel of one’s choice. [Citation.] Though entitlement to
representation by a particular attorney is not absolute [citation], ‘the state should
keep to a necessary minimum its interference with the individual’s desire to
defend himself in whatever manner he deems best, using any legitimate means
within his resources – and . . . that desire can constitutionally be forced to yield
only when it will result in significant prejudice to the defendant himself or in a
disruption of the orderly processes of justice unreasonable under the
circumstances of the particular case’ [citation].” (Id. at pp. 586-587.) We
observed in Maxwell v. Superior Court (1982) 30 Cal.3d 606, 615: “[C]hosen
representation is the preferred representation. Defendant’s confidence in his
lawyer is vital to his defense. His right to decide for himself who best can conduct
the case must be respected wherever feasible.” (Fn. omitted.)
22
In Wheat v. United States, supra, 486 U.S. 153, 157, the trial court denied
the defendant’s request to substitute counsel because it found that the proposed
attorney had an “ ‘irreconcilable conflict of interest’ ” that the defendant was not
permitted to waive. The high court ruled that the trial court did not err in denying
the defendant’s request to substitute counsel, stating, “where a court justifiably
finds an actual conflict of interest, there can be no doubt that it may decline a
proffer of waiver, and insist that defendants be separately represented.” (Id. at p.
162.)
The defendant in People v. Ortiz, supra, 51 Cal.3d 975, retained private
counsel, but his first trial ended in a mistrial and he became indigent prior to the
retrial. He moved to discharge his attorney and obtain appointed counsel. The
trial court denied his request to discharge counsel on the grounds that the
defendant had not shown that his attorneys were incompetent. This court reversed
the ensuing judgment of conviction, holding that the trial court erred in requiring
the defendant to demonstrate that his attorneys were incompetent before allowing
him to discharge them.4 (Ortiz, at p. 987.) We described the right of a criminal
defendant to counsel and to present a defense as “among the most sacred and
4
Counsel in Ortiz, Daniel Hernandez and Arturo Hernandez, are the same
attorneys who represented defendant in this case. Defendant twice asserts in his
opening brief that in People v. Ortiz, supra, 51 Cal.3d 975, “this Court held that
both Daniel Hernandez and Arturo Hernandez should properly have been
discharged by the trial court as retained counsel on the defendant’s motion based
on their incompetence in a pending murder case.” This does not accurately
describe our decision in Ortiz. As noted above, we held that a criminal defendant
who has retained counsel but becomes indigent may discharge his or her retained
counsel and seek appointment of counsel without demonstrating that retained
counsel is ineffective. We did not hold that Daniel Hernandez and Arturo
Hernandez provided ineffective representation. To the contrary, we noted that, on
remand, the superior court might appoint them as counsel.
23
sensitive of our constitutional rights” and cautioned that “the state should keep to a
‘necessary minimum its interference with the individual’s desire to defend himself
in whatever manner he deems best.’ ” (Id. at p. 982.) We recognized in Ortiz “the
value we place on allowing defendants to defend themselves as they deem best,
absent prejudice to themselves or unreasonable delay in the processes of justice”
and “the importance of the right to counsel of choice and the sensitive nature of
the relationship between a criminal defendant and his lawyer.” (Id. at p. 987.)
Moreover, a trial court must exercise caution when denying a defendant’s request
to substitute counsel, because “[r]eversal is automatic . . . when a defendant has
been deprived of his right to defend with counsel of his choice. [Citation.]” (Id. at
p. 988.) “The right to counsel of choice is one of the constitutional rights most
basic to a fair trial. Accordingly, it is clear that a criminal defendant need not
demonstrate prejudice resulting from a violation of that right in order to have his
conviction reversed.” (Ibid.)
Defendant cites no case, and we are aware of none, in which a conviction
was reversed because the court granted the defendant’s request to substitute
counsel. A defendant whose request to substitute counsel is granted cannot
complain on appeal that the trial court should have denied that request. The
defendant’s only contention on appeal in such circumstances can be that he or she
was denied effective assistance of counsel. (See Wheat v. United States, supra,
486 U.S. 153, 161 [“If a district court agrees to the multiple representation, and
the advocacy of counsel is thereafter impaired as a result, the defendant may well
claim that he did not receive effective assistance].”) Defendant expressly does not
claim on appeal that counsel were ineffective, noting that “[a] claim of ineffective
assistance of counsel will be separately presented in a related petition for writ of
habeas corpus.”
24
Curiously, defendant cites our decision in Drumgo v. Superior Court
(1973) 8 Cal.3d 930 for the proposition that the trial court has a “duty to ensure
that any counsel appointed to represent the accused is competent and qualified to
conduct the defense” (italics added), adding: “That is precisely the obligation
involved in the present case which the trial court failed to meet.” But Daniel
Hernandez and Arturo Hernandez were not appointed by the court, they were
retained by defendant. Our decision in Drumgo, accordingly, has no application
here.
Contrary to defendant’s assertion, the trial court in the present case did not
find that Daniel Hernandez and Arturo Hernandez were unqualified to be retained
as counsel by defendant. The court simply made certain that defendant was “fully
informed regarding his choice of counsel” (ante, at p. 18) by observing that the
Hernandez attorneys did not meet the standards required of attorneys appointed by
the court to represent capital defendants, noting that both attorneys had been held
in contempt on at least two occasions, requiring both attorneys to disclose to
defendant “any facts which might bear on their ability to effectively represent him
in this case,” and offering defendant the assistance of independent counsel “to
check any information disclosed to him.” (Ante, at pp. 19-20.) The trial court
correctly recognized “that the defendant has the right to retained counsel of his
choice.” (Ante, at p. 19.) The Sixth Amendment “commands . . . that the accused
be defended by the counsel he believes to be best.” (United States v. Gonzalez-
Lopez, supra, ___ U.S. ___ [2006 WL 1725573, at p. *4].) The trial court did not
err in granting defendant’s request to substitute counsel.
2. Conflict of Interest
Defendant claims that he was denied the right to conflict-free counsel in
violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal
25
Constitution and article I, section 15 of the California Constitution because the
trial court failed to conduct an adequate inquiry into whether his attorneys suffered
from a conflict of interest stemming from their retainer agreement with
defendant’s family.
When he and Daniel Hernandez were seeking to be substituted as counsel
for defendant, Arturo Hernandez stated they had entered into a written contract
with defendant, adding: “Also, the other parties that have retained us, his family,
who are also liable, have acquired some financial responsibility to us due to that
contract.” The court had the exchange with defendant, which is quoted above, in
which defendant stated he had read and understood the contract. This exchange
then continued as follows:
“The Court: . . . You understand because your attorneys have a contract
with you and with your family, those two contracts may at some point be in
conflict; the contract with the family may present a conflict at some point with the
contract with you? Do you understand that possibility does exi[s]t?
“The Defendant: It exists, but I feel there will be no conflict.
“The Court: You may be waiving any conflict. I just want to make
perfectly sure you understand.
“The Defendant: I understand. I understand.
“The Court: All right. Do you realize the contract may contain certain
provisions which may create potential areas of conflict between you and your
attorneys?
“The Defendant: I understand.
“The Court: Do you understand it is not the court’s desire in any way to
change any of the terms of this contract; it is only my desire to make sure you
understand those terms and any potential problems that these terms may create; all
I want to know is that you do understand?
26
“The Defendant: I do understand.
“The Court” Okay. Understanding that, do you wish at this time the
opportunity to talk to an independent attorney?
“The Defendant: No. I waive that.
“The Court: All right. Do you understand if at any time in the future you
change your mind and desire to obtain independent legal advice regarding the
contract, you have the right to ask the court to appoint an attorney to discuss that
matter with you?
“The Defendant: Yes.
“The Court: All right. Both Messrs. Hernandez, I have some question
because last time when you left the courtroom, you made some comment about
going to see your ‘client,’ the ‘client’ obviously being the family. I do wish to
impress upon you the importance of Mr. Ramirez being in the contract, and that
has to have prime consideration. Because of the two contracts, the court will
request if at any time there is the slightest possibility that a potential conflict might
exist, you immediately inform whatever court this is in so that that problem can be
raised and taken care of. Do you understand the court is ordering you [to] do that?
“Mr. Arturo Hernandez: We understand fully; and, for the record, we have
indicated to the court in the past that at this point we anticipate no conflict of
interest. We have our standard retainer agreement that we have used in many,
many different felony cases, including murder cases. We have no question in our
mind at this point that there is a conflict in this case; however, we realize the
concerns of the court. As we stated before, we have no knowledge of any
potential conflicts; but if there are any, we will notify whatever court this case is
before.
“The Court: All right. Do you realize, both Messrs. Hernandez, the family
funds may be insufficient to adequately reimburse you for your services in this
27
matter and, recognizing that fact, do you understand it may be necessary once you
are attorneys of record in this case to perform some or all of your services on a pro
bono basis?
“Mr. Arturo Hernandez: We realize that, your honor, and we are willing to
undertake that risk.
“The Court: Mr. Daniel Hernandez, you are nodding your head ‘yes.’ Do
you –
“Mr. Daniel Hernandez: Yes. I agree with that.
“The Court: To the court inquiry as to the extent of your contract, does it
cover through the preliminary hearing?
“Mr. Arturo Hernandez: It covers through the trial, your Honor, and any
post-trial remedies that my client may have.
“The Court: The filing of any notices of appeal?
“Mr. Arturo Hernandez: That’s correct.
“The Court: Have you disclosed to Mr. Ramirez any facts, both negative
and positive, which would bear not only on your ability to represent him but on
any publicity that might come from your representation?
“Mr. Arturo Hernandez: Yes, we have. We have fully discussed with him
on several occasions our background, and he is satisfied and he is willing to
undertake our retainment in this case.
“The Court: Mr. Ramirez, are you satisfied with the disclosures that have
been made to you?
“The Defendant: Yes, Ma’am.”
Defendant asserts that the above quoted inquiry of counsel was deficient
because the court “failed to determine the nature of the terms and conditions” of
the retainer agreements entered into between defendant and counsel and
defendant’s family and counsel, failed to determine the impact of counsel’s
28
agreement with the family on their representation of defendant, and “failed to
consider the impact of the agreements with respect to counsel’s purported waiver
of appellant’s right to a full and proper inquiry regarding his mental competency.”
Defendant asserts that counsel’s expressed willingness to represent defendant pro
bono, if necessary, “deepened the appearance of grave conflicts of interest,
triggering the trial court’s duty of inquiry.”
“ ‘The right to effective assistance of counsel, secured by the Sixth
Amendment to the federal Constitution, and article I, section 15 of the California
Constitution, includes the right to representation that is free from conflicts of
interest.’ [Citation.] ‘ “Conflicts of interest may arise in various factual settings.
Broadly, they ‘embrace all situations in which an attorney’s loyalty to, or efforts
on behalf of, a client are threatened by his responsibilities to another client or a
third person or by his own interests.’ ” ’ [Citation.] [¶] Under the federal
Constitution, when counsel suffers from an actual conflict of interest, prejudice is
presumed. [Citation.] This presumption arises, however, ‘only if the defendant
demonstrates that counsel “actively represented conflicting interests” and that “an
actual conflict of interest adversely affected his lawyer’s performance.” ’
[Citation.] An actual conflict of interest means ‘a conflict that affected counsel’s
performance—as opposed to a mere theoretical division of loyalties.’ [Citation.]”
(People v. Roldan (2005) 35 Cal.4th 646, 673, italics omitted.)
An actual conflict of interest occurred in Holloway v. Arkansas (1978) 435
U.S. 475, 484 (Holloway), in which indigent codefendants were represented by a
single appointed attorney who represented that he had received confidential
information from each defendant that created a risk of conflicting interests, but no
conflict of interest was found in Cuyler v. Sullivan (1980) 446 U.S. 335 (Sullivan),
in which three codefendants were represented jointly by retained counsel in
separate trials. The high court observed that the trial court was not obligated to
29
investigate whether counsel’s representation of multiple defendants created a
conflict of interest, in the absence of an objection by the defendant, stating that
“nothing in our precedents suggests that the Sixth Amendment requires state
courts themselves to initiate inquiries into the propriety of multiple representation
in every case. . . . Unless the trial court knows or reasonably should know that a
particular conflict exists, the court need not initiate an inquiry.” (Id. at pp. 346-
347, fns. omitted.)
“[T]he rule applied when the trial judge is not aware of the conflict (and
thus not obligated to inquire) is that prejudice will be presumed only if the conflict
has significantly affected counsel’s performance . . . .” (Mickens v. Taylor (2002)
535 U.S. 162, 172-173 (Mickens).) The defendant in Mickens claimed he had
been denied effective assistance of counsel because his appointed attorney earlier
had represented the murder victim on a juvenile matter. The high court denied
relief, distinguishing Holloway on the basis that counsel had not “protested his
inability simultaneously to represent multiple defendants.” (Mickens, at p. 173.)
The present case does not involve concurrent representation of multiple
defendants as in Holloway and Sullivan, or even prior representation of the victim
as in Mickens. Defense counsel in the present case had entered into a contract
with both defendant and his family to represent defendant, which defendant now
claims created a possible financial conflict of interest. The trial court conducted
an extensive and appropriate inquiry into defendant’s awareness of the possibility
of a conflict of interest, offered defendant separate counsel to advise him, and
obtained assurances from defense counsel that no such conflicts existed or were
likely to arise. The trial court did not err and was not required to review the terms
and conditions of the retainer agreement.
30
Defendant expressly “does not raise an assignment of error as to counsel’s
conflicts of interest with respect to the retainer agreements,” preferring to raise this
issue in a subsequent petition for writ of habeas corpus.
Defendant contends that his waiver of his right to conflict-free counsel was
defective. We need not, and do not, decide whether defendant validly waived his
right to conflict-free counsel because defendant has not shown, and expressly
disclaims an intention to show on appeal, that he was denied his right to conflict-
free counsel.
3. Competency to Stand Trial
Defendant claims that the trial court violated his rights under the Fifth,
Sixth, Eighth, and Fourteenth Amendments to the federal Constitution because it
abused its discretion under section 1368 in denying Defense Counsel Gallegos’s
motion for a psychiatric evaluation of defendant.
Prior to the in camera hearing on October 24, 1985, referred to above, at
which the court substituted Arturo Hernandez and Daniel Hernandez as counsel,
Defense Counsel Gallegos appeared in camera in the municipal court with former
defense counsel, Deputy Public Defender Henry Hall, and asked the judge to order
a “psychiatric evaluation” of defendant “as to his present mental state, his ability
to choose his own attorney and other related matters concerning this trial.” As
noted above, the municipal court had taken under submission defendant’s request
to substitute new counsel in place of Attorney Gallegos. Gallegos stated he was
concerned by a news report he heard on the radio “indicating my client wanted to
plead guilty to 14 counts of murder providing the district attorney’s office would
drop the counts involving minor children.” The court noted that it previously had
ordered a psychiatric evaluation of defendant at the request of the public defender,
who then represented defendant. Deputy Public Defender Hall stated that the
31
psychiatrist had met with defendant “for approximately 10 or 15 minutes, at which
point Mr. Ramirez refused to speak with him anymore.” Based upon this short
interview, and his observations of defendant before and after the interview, the
psychiatrist concluded, according to Hall, that defendant was “borderline in terms
of his competence,” but he “couldn’t say for sure.” Hall added that the
psychiatrist stated that, if forced to reach a conclusion, “he would have to say
[defendant] was competent but borderline so.”
Following a recess, the in camera hearing resumed, as noted above, with
the prosecutor, defendant, Gallegos, Arturo Hernandez, and Daniel Hernandez
present. The court observed that “[u]p until this point the questions I have asked
Mr. Ramirez he has answered in a logical, intelligent fashion. From his questions
I at this point do not have any question regarding his ability. He has remembered
things I have said at prior hearings and reported them back to me.” The court
stated it had no doubts about defendant’s competency, and defendant interrupted
the court to state: “I am sane.” Arturo Hernandez added that he and cocounsel
“have been visiting with Mr. Ramirez for a lengthy period of time. We have seen
him on almost a daily basis. We have conducted extensive conversations with
him. We have conducted extensive investigations of the case with him. We have
done a tremendous amount of work with him. We have no problems with him
understanding, with him being very rational, very intelligent. We have no
problems.”
The court then had the following exchange with defendant:
“The Court: Mr. Ramirez, could you tell me: how many years of school
have you had?
“The Defendant: I have had 11 years of high school [sic] and one year of
technical in electrical trades, and I have a psychologist in Los Angeles who has
qualified me sane.
32
“The Court: I am just wanting to know your education, sir.
“The Defendant: Oh. Okay.
“The Court: Just answer specifically –
“The Defendant: I don’t want to go to no hospital, Ma’am.”
As noted above, the in camera hearing concluded, and Arturo Hernandez
and Daniel Hernandez were substituted as counsel without the court ordering a
psychiatric evaluation of defendant.
We conclude the trial court did not abuse its discretion under section 1368
in denying Defense Counsel Gallegos’s motion for a psychiatric evaluation of
defendant.
“A person cannot be tried or adjudged to punishment while that person is
mentally incompetent. A defendant is mentally incompetent for purposes of this
chapter if, as a result of mental disorder or developmental disability, the defendant
is unable to understand the nature of the criminal proceedings or to assist counsel
in the conduct of a defense in a rational manner.” (§ 1367, subd. (a).)
Section 1368 states: “(a) If, during the pendency of an action and prior to
judgment, a doubt arises in the mind of the judge as to the mental competence of
the defendant, he or she shall state that doubt in the record and inquire of the
attorney for the defendant whether, in the opinion of the attorney, the defendant is
mentally competent. . . . [¶] (b) If counsel informs the court that he or she believes
the defendant is or may be mentally incompetent, the court shall order that the
question of the defendant’s mental competence is to be determined in a hearing
which is held pursuant to Sections 1368.1 and 1369.”
In People v. Hayes (1999) 21 Cal.4th 1211, defense counsel asserted that
his client was incompetent and moved for a hearing pursuant to section 1368. The
trial court denied the motion, declaring that no doubt had arisen in the court’s
mind concerning the defendant’s competence because it appeared the defendant
33
understood the nature of the proceedings and was able to assist counsel. We
affirmed the resulting judgment, ruling that a trial court is required to conduct a
competency hearing under section 1368 only if “substantial evidence of
incompetence is introduced,” and adding that evidence “that does no more than
form the basis for speculation regarding possible current incompetence is not
sufficient. [Citation.]” (People v. Hayes, supra, 21 Cal.4th at p. 1281.)
In the present case, there was no substantial evidence that defendant was
mentally incompetent. Defense counsel’s request for a “psychiatric evaluation” of
defendant, standing alone, does not require the court to appoint such an expert or
conduct a competency hearing. (See People v. Panah (2005) 35 Cal.4th 395, 433;
People v. Howard (1992) 1 Cal.4th 1132, 1164.) And defense counsel’s concern
over news reports he had heard concerning defendant’s alleged plans provide no
insight into defendant’s mental processes. The court’s observations of defendant
raised no question in the court’s mind about defendant’s competence, and one of
the attorneys who was about to be substituted in as counsel vouched for
defendant’s competence. Under these circumstances, the court did not err in
denying defense counsel’s motion to appoint a psychiatrist to evaluate defendant.
Defendant further argues that the trial court erred in failing to order a
competency hearing sua sponte. Defendant relies upon “the bizarre nature of the
criminal acts charged, [defendant]’s bizarre and abnormal behavior following his
arrest, and the court’s own questions at various court hearings regarding
[defendant]’s competence.” But none of these circumstances raised a question as
to defendant’s ability to understand the nature of the proceedings or assist counsel
in his defense. “[M]ore is required to raise a doubt [as to a defendant’s
competence] than mere bizarre actions [citation] or bizarre statements [citation] or
statements of defense counsel that defendant is incapable of cooperating in his
defense [citation] or psychiatric testimony that defendant is immature, dangerous,
34
psychopathic, or homicidal or such diagnosis with little reference to defendant’s
ability to assist in his own defense [citation].” (People v. Laudermilk (1967) 67
Cal.2d 272, 285.)
Moreover, contrary to defendant’s suggestion, the trial court did not
express a doubt as to defendant’s competence to stand trial. On April 14, 1986,
during the preliminary hearing in municipal court, defense counsel requested “that
we be allowed to talk to you in chambers and without the presence of the
prosecutor” regarding a request by defendant not to attend the preliminary hearing.
In denying counsel’s request to speak to the court outside the presence of the
prosecutor, the court stated: “If counsel is of the opinion that the court ought to be
persuaded by what you might say or what I have seen thus far that inquiry should
be made pursuant to section 1368, that you got to do in open court. There is no
provision for a secret disclosure of counsel’s feelings. With respect to that, there
is no evidence upon which I might conclude so far that the defendant is in any way
unable to understand and participate in the proceedings.”
Ten months later, on February 26, 1987, just prior to the weekend recess
during a hearing on pretrial motions, the superior court judge sought time
estimates from counsel regarding proceedings the following week and asked
defense counsel: “Are there any motions that you are considering as to other
aspects of this case that should be filed or you are considering filing? 1368 comes
to mind.” Daniel Hernandez responded: “We’ve been considering that from the
beginning of course and we haven’t made a decision on that and we are very
aware and concerned about that.” The court replied: “So am I. Again I’m not
trying to jump in and tell you guys how to run your ship. That is an avenue I think
that has to be explored one way or another.”
The next month, on March 24, 1987, the court spoke to defense counsel
about when they were going to file a severance motion and then added: “The
35
1368 and related issues I would also like you to consider. I realize that that is
going to be a very difficult one for you, but I would like you to get working on
that as well.”
From the above quoted statements, it is clear the trial court made inquiries
into whether defense counsel planned to file a section 1368 motion, but the trial
court did not express a doubt as to defendant’s mental competency.
4. Motion for Change of Venue
Defendant contends the trial court erred in denying his motion for change
of venue under section 1033, depriving him of his rights under article I, section 15
of the California Constitution and the Fifth, Sixth, and Fourteenth Amendments to
the United States Constitution. We disagree.
The offenses with which defendant was charged occurred between June 27,
1984 and August 8, 1985. Defendant was arrested on August 31, 1985, and the
felony complaint against him was filed on September 3, 1985. Nearly a year after
his arrest, on July 21, 1986, following the preliminary hearing, defendant filed a
motion for change of venue. The trial court conducted an extensive hearing on the
motion which spanned two months. The court viewed hours of videotape
recordings of television news broadcasts.
Paul Strand, Ph.D., testified for defendant that during the last week of
November, 1986, he conducted a telephone survey of 300 persons who were
eligible to be prospective jurors, using a computer program that generates random
telephone numbers. The survey revealed that 94.3 percent of those who responded
had heard of the case and 52.7 percent were able to recall something about
defendant, such as that he was a Satanist or that he looked evil or mean. About
half (47.7 percent) indicated that the Night Stalker murders had posed no
particular threat to them, while nearly an equal number (46 percent) said their
36
concern for their safety had increased when the murders were occurring. Just over
10 percent of those polled said they had taken special precautions. At the time of
the survey, more than a year after defendant was arrested, only 31.7 percent
indicated they continued “to have feelings about this case,” with the rest agreeing
that they had “pretty much forgotten about it.”
Slightly more than half of the people questioned (51.7 percent) said that
“[b]ased on what [they had] seen or heard” they thought defendant was
“responsible” for the Night Stalker murders, while about a third of those polled
(34.7 percent) said they would need more information to make a judgment. Only
one person (0.3 percent) believed defendant was not responsible for the murders.
Strand testified that the levels of recognition and predisposition were the
highest he had ever seen.
Defendant introduced evidence that participation in Neighborhood Watch
programs “probably doubled” while the murders were occurring. Police increased
their patrols, gave advice on how to avoid being victimized, and gave free
deadbolt locks to the elderly. Gun sales tripled, returning to normal after
defendant’s arrest.
The trial court denied defendant’s motion for change of venue on January
9, 1987, stating it was “not convinced . . . that the survey shows that the pretrial
publicity in this case has created an atmosphere where he cannot receive a fair
trial.” The court described the news coverage of this case as “saturation, as much
as they possibly can give,” but noted that this was not the only case in Los
Angeles that had received such extensive news coverage. The court noted that
although the survey indicated that nearly all of those surveyed had heard of the
case, and about half said they thought defendant was responsible based upon what
they had heard, the survey did not show that the people polled were predisposed or
prejudiced. The court concluded: “I don’t think that a reasonable likelihood has
37
been made out that a fair trial cannot be had in this county,” adding, “You know,
of course, that if a panel is brought in and if you go through the panel and the voir
dire experience shows that the panel is, in fact, rather than in theory, polluted, that
you can make another motion for change of venue at that time.”
Section 1033 provides that a defendant’s motion for change of venue shall
be granted “when it appears that there is a reasonable likelihood that a fair and
impartial trial cannot be had in the county.” (§ 1033, subd. (a).) “ ‘A change of
venue must be granted when the defendant shows a reasonable likelihood that in
the absence of such relief, a fair trial cannot be had. “. . . ‘[T]he reviewing court
must independently examine the record and determine de novo whether a fair trial
is or was obtainable.’ ” [Citation.] “The de novo standard of review applies to
our consideration of the five relevant factors: (1) nature and gravity of the offense;
(2) nature and extent of the media coverage; (3) size of the community;
(4) community status of the defendant; and (5) prominence of the victim.”
[Citation.]’ [Citation.]” (People v. Panah, supra, 35 Cal.4th 395, 447.)
The “nature and gravity” of the present offenses could not have been more
serious, but this factor alone does not require a change of venue. (People v.
Jenkins (2000) 22 Cal.4th 900, 943.) Neither defendant nor the victims were
known to the public prior to the crimes and defendant’s arrest, so the last two
factors—the “community status of the defendant” and the “prominence of the
victim” do not support a change of venue. (People v. Panah, supra, 35 Cal.4th
395, 449; People v. Coffman and Marlow (2004) 34 Cal.4th 1, 46.) Our attention,
therefore, focuses on the two remaining factors—the “nature and extent of the
media coverage” and the “size of the community.”
The trial court described the media coverage of the murders and
defendant’s arrest as “saturation, as much as they possibly can give,” but noted
that such coverage was not unprecedented in Los Angeles County. And defendant
38
did not show that the media coverage was unfair or slanted against him or revealed
incriminating facts that were not introduced at trial. (Compare Sheppard v.
Maxwell (1966) 384 U.S. 333.) Further, the passage of more than a year from the
time of the extensive media coverage served to attenuate any possible prejudice
and supports the trial court’s denial of the motion for change of venue. (People v.
Panah, supra, 35 Cal.4th 395, 448; People v. Jenkins, supra, 22 Cal.4th 900, 944.)
The size of the community also militates against granting defendant’s
request for a change of venue. (People v. Panah, supra, 35 Cal.4th 395, 449;
People v. Coffman and Marlow, supra, 34 Cal.4th 1, 46; People v. Jenkins, supra,
22 Cal.4th 900, 944.) The trial court correctly noted that because of the number of
prospective jurors that could be assembled in Los Angeles County, it was likely
that an impartial jury could be chosen. And this turned out to be the case.
Although only one member of the jury indicated during voir dire that he never had
heard of the case, they all stated they had not “formed any opinion as to the guilt
or innocence of Richard Ramirez regarding this case” and could be fair. When
asked in the juror questionnaire what, if anything, they had learned about the case,
they indicated, at most, only the most general familiarity with the case.5 They all
5
One juror made no response. The others responded as follows:
“He was labeled the ‘Night Stalker’ for midnight breakins.”
“That he is being accused of murder of several women.”
“That there were a number of women murdered.”
“Some knowledge due to the news headlines.”
“Mr. Ramirez was accused of entering a home in Orange County and
slaying someone there.”
“I have not learned anything about this case. I briefly saw the accused
captured on TV.”
“He was arrested as the night stalker.”
(Footnote continued on next page.)
39
stated that this information did not make them favor either the prosecution or the
defense. One juror added: “I just know he is the one arrested for murders he was
to have committed. But I have not said he is guilty or innocent.”
The trial court did not err in denying the motion for change of venue.
Citing Rideau v. Louisiana (1963) 373 U.S. 723, defendant argues that the
trial court’s denial of his motion for change of venue deprived him of his rights to
a jury trial under the Sixth Amendment to the federal Constitution and to due
process of law under the Fifth and Fourteenth Amendments. The defendant in
Rideau was filmed in his jail cell, the morning after his arrest, flanked by two state
troopers. He was interrogated without counsel by the sheriff and confessed to
bank robbery, kidnapping, and murder. This film of the defendant’s confession
was shown three times on a local television station in the small Louisiana parish
where the crimes were committed and was seen by a substantial segment of the
population of the parish. The trial court denied the defendant’s motion for a
change of venue, and the defendant was convicted and sentenced to death. The
high court held that the defendant was denied due process, concluding that “it was
a denial of due process of law to refuse the request for a change of venue, after the
people of Calcasieu Parish had been exposed repeatedly and in depth to the
spectacle of Rideau personally confessing in detail to the crimes with which he
(Footnote continued from previous page.)
“General details given by media, arrested and accused of murder.”
“That it is called the Night Stalker case & he was supposed to have
murdered many people in So. Calif.”
“Only that it has something to do with “the Night Stalker” and that was
revealed in the courtroom by the judge.”
“He’s accused of a feloney [sic].”
40
was later to be charged” because the televised “spectacle” of the defendant
confessing to the crimes rendered his subsequent trial “but a hollow formality.”
(Id. at p. 726.)
The circumstances in Rideau bear no resemblance to the circumstances in
the present case. Although defendant argues that the media coverage of this case
was “extensive and inflammatory,” he focuses on the extent of the coverage and
offers few examples of coverage that could be described as inflammatory. With
few exceptions, the media reports were accurate. Defendant’s confessions were
reported, but these confessions ultimately were admitted into evidence. And the
voir dire confirmed that the jury ultimately selected was largely unaware of, or had
forgotten, the details of the media coverage by the time of trial.
Defendant argues he was denied a reliable determination of his penalty
guaranteed by the Eighth Amendment, citing Caldwell v. Mississippi (1985) 472
U.S. 320, 328-329, which held that “it is constitutionally impermissible to rest a
death sentence on a determination made by a sentencer who has been led to
believe that the responsibility for determining the appropriateness of the
defendant’s death rests elsewhere.” He also cites Woodson v. North Carolina
(1976) 428 U.S. 280, which invalidated a law that provided a mandatory penalty
of death for all first degree murders. Defendant fails to explain how either of these
cases has any relevance to the present case.
Defendant contends that the trial court failed “to consider a vast array of
defense-proffered evidence in support of change of venue,” adding that “[t]he trial
court erred in refusing to take judicial notice of the defense-proffered exhibits that
demonstrated the prejudicial nature of the news media coverage in appellant’s
case.” The trial court viewed several hours of videotapes of media coverage of the
present case proffered by defendant. At the end of the second court day of
viewing these videotapes, the court allotted defendant one more hour on the
41
following day, saying: “This is all cumulative. All the channels had the same
kind of mixture of hard news and fluff, and I don’t see any point in sitting here
watching, you know, all of the channels. We have now seen Channel 11, and this
is Channel 4, and they are the same. And I have no reason to believe that Channel
2 or Channel 7 or 9 or 13 or the rest of them are any different. [¶] So the point I
am trying to make to you is this: you may file and lodge all of the cassettes you
wish, all those that you have, but I don’t think that in my discretion that it is a
judicious use of my time to sit there and watch them all. It simply isn’t proving
anything.” “The point is that what you are presenting is cumulative and repetitive
and it isn’t proving anything. I am aware of the fact that all of the local news
media have given inordinate coverage to this case. I know that. And these
cassettes that we have seen have refreshed my memory. . . . Your point, in other
words, is made regarding the extent of media coverage that has been afforded this
case.”
Following several days of oral testimony presented by defendant in support
of his motion for change of venue, the court permitted defendant time “to file a
statement regarding matters you wish to have judicial notice or acknowledgment
of the existence of.” The People objected to much of the material submitted by
defendant, and the court ruled: “Now I have read that carefully, I have read all of
the matters that are attached thereto, and I am at this time willing to accept and
acknowledge that everything set forth in that document is true, the factual matters
set forth therein are true, that this publicity was disseminated to the public
throughout the Southern California area about the time indicated.” (Italics added.)
The court sustained the People’s objection to numerous exhibits on grounds
of “lack of foundation and unintelligibility” and lack of authentication, adding:
“But again, Gentlemen, I do have knowledge and I will accept the principle that
all of the – virtually all of the local news media, including the small outlet media,
42
local newspapers, ethnic-oriented publications, various language publications,
have covered this case, if that is the point you are trying to make. Is that the point
you are trying to make? [¶] Mr. Arturo Hernandez: Yes. [¶] The Court: I don’t
think there is any doubt but that that is true, and I accept that that is true.” The
court then admitted several exhibits “without foundation,” stating: “I’ve got to
have some kind of record.”
The trial court did not err in failing to admit all of the evidence submitted
by defendant in support of his motion for change of venue.
5. Motion to Sever Counts
As noted above, defendant was charged in an amended information with 43
offenses – including 13 counts of murder, five counts of attempted murder, 14
counts of burglary, and four counts of rape – arising from 15 separate incidents
involving 24 victims during a 14-month period ending in the summer of 1985.
The trial court denied defendant’s motion to sever some of these counts and try
these charges in eight separate trials. Defendant argues on appeal that the trial
court erred in denying his motion for severance in violation of his Fifth, Sixth,
Eighth, and Fourteenth Amendment rights, asserting that this “case could have
been easily severed, for example, into four separate groups.” The trial court did
not err in denying defendant’s severance motion.6
Section 954 permits related offenses to be charged in a single accusatory
pleading unless there is good cause to try them separately: “An accusatory
6
Because defendant was tried prior to the effective date of Proposition 115,
which was adopted in June 1990 and contains provisions regarding the joinder and
severance of criminal charges (see Cal. Const., art. I, § 30, subd. (a); § 954.1), we
apply the law predating Proposition 115. (People v. Bradford (1997) 15 Cal.4th
1229, 1314, fn. 13; People v. Arias (1996) 13 Cal.4th 92, 126, fn. 7.)
43
pleading may charge two or more different offenses connected together in their
commission . . . or two or more different offenses of the same class of crimes or
offenses, . . . provided, that the court in which a case is triable, in the interests of
justice and for good cause shown, may in its discretion order that the different
offenses or counts set forth in the accusatory pleading be tried separately or
divided into two or more groups and each of said groups tried separately.”
Defendant’s motion in the trial court to sever the charges was confusing.
Defendant initially moved to sever the charges into “at least six” groups,
conceding that the charges involving the Petersen and Elyas A. victims on August
5 and August 8 were properly joined, and that the charges involving the Okazaki,
Yu, Doi, Bell, Cannon, Whitney B., Nelson, and Kneiding victims on March 17,
May 14, May 29, July 2, July 7, July 5, and July 19 of 1985 were properly joined,
but arguing that these two groups of cases should be tried separately and that the
charges involving the Sophie D., Carol K., Higgins, and Vincow victims should
each be tried separately. In a subsequent pleading, defendant argued the charges
should be tried in “eight different trials” involving the following groups of
victims: (1) Petersen and Elyas A. on August 5 and 8, 1985; (2) Okazaki and Yu,
on March 17, 1985; (3) Zazzara and Chainarong K. on March 28 and July 19,
1985; (4) Higgins7; (5) Vincow on June 27, 1984; (6) Bell, Doi, Cannon, Whitney
B., Nelson, and Kneiding on May 14 and 29, and July 2, 5, 7, and 19 of 1985; (7)
Sophie D. on July 7, 1985; and (8) Carol K. on May 30, 1985. The trial court
denied the motion for severance, finding that the charges were “of the same class
7
The prosecution conceded that the two charges related to Higgins were not
properly joined and the court granted the prosecution’s motion to dismiss those
charges.
44
of crimes,” that much of the evidence was cross-admissible, and that there was “a
common scheme and design that runs through each of these incidents.”
On appeal, defendant argues that the charges “could have been easily
severed, for example, into four separate groups” involving the following groups of
victims: (1) Petersen, Whitney B., Sophie D., and Carol K.; (2) Elyas A., Okazaki,
Yu, and Kneiding; (3) Zazzara, Chainarong K., Bell, Cannon, and Nelson; and (4)
Vincow. The People correctly point out that defendant did not ask the trial court
to sever the charges into these four groups, and the trial court had no sua sponte
duty to do so. “ ‘Section 954 . . . imposes no sua sponte duty of severance on trial
courts. That section . . . requires the defendant to make a showing of “good cause”
in order to obtain severance, and defendant’s failure to request a severance waives
the matter on appeal. Nor do we find any authority to support defendant’s
argument that the Fifth, Sixth, Eighth or Fourteenth Amendments of the United
States Constitution, or their California counterparts, impose such a duty.’ ”
(People v. Maury (2003) 30 Cal.4th 342, 392.) Accordingly, defendant is limited
on appeal to arguing that the trial court erred in failing to sever the charges into
the groups he requested at trial.
All of the charges against defendant were properly joined under section 954
because they either were “connected together in their commission” or were
“offenses of the same class of crimes.” Each of the groups of offenses suggested
by defendant in the trial court included charges of murder or rape or both.
“Murder and rape are assaultive crimes against the person and, as such, are
‘offenses of the same class of crimes’ within the meaning of section 954 and were
properly joinable. [Citations.] Because the statutory requirements for joinder were
met, defendant can establish error only on a clear showing of prejudice.
[Citation.]” (People v. Maury, supra, 30 Cal.4th 342, 395.)
45
“ ‘ “The burden is on the party seeking severance to clearly establish that
there is a substantial danger of prejudice requiring that the charges be separately
tried.” [Citation.] [¶] . . . Refusal to sever may be an abuse of discretion where:
(1) evidence on the crimes to be jointly tried would not be cross-admissible in
separate trials; (2) certain of the charges are unusually likely to inflame the jury
against the defendant; (3) a “weak” case has been joined with a “strong” case, or
with another “weak” case, so that the “spillover” effect of aggregate evidence on
several charges might well alter the outcome of some or all of the charges; and (4)
any one of the charges carries the death penalty or joinder of them turns the matter
into a capital case. [Citations.]’ ” (People v. Bradford, supra, 15 Cal.4th 1229,
1315.)
A trial court’s denial of a motion for severance “may be reversed only if the
court has abused its discretion. [Citations.] An abuse of discretion may be found
when the trial court’s ruling ‘ “falls outside the bounds of reason.” ’ [Citation.]”
(People v. Bradford, supra, 15 Cal.4th 1229, 1315.)
Defendant argues that his motion for severance should have been granted
because “many of the incidents were dissimilar” and, thus, not all of the evidence
would be cross-admissible. Evidence linked some of the groups of offenses
suggested by defendant in the trial court. For example, defendant argued that the
Zazzara and Chainarong K. charges should be tried separately from the Bell, Doi,
Cannon, Whitney B., Nelson, and Kneiding charges, but these groups of charges
were linked by evidence that the same Avia shoe prints found at the scene of the
Zazzara and Chainarong K. crime scenes also were found at the scenes of the Bell,
Doi, Cannon, Whitney B., and Nelson crimes. And both of these groups of
charges were linked to the Sophie D. and Carol K. charges – which defendant
asserted in the trial court should be tried separately – because defendant sold to
Felipe Solano property stolen during crimes included in each of these groups. In
46
any event, it is not required that all of the evidence be cross-admissible: “Cross-
admissibility of evidence is sufficient but not necessary to deny severance.
[Citation.] As the four-part test is stated in the conjunctive, joinder may be
appropriate even though the evidence is not cross-admissible . . . .” (People v.
Ochoa (2001) 26 Cal.4th 398, 423.)
Defendant asserts that the joinder of the charges resulted in gross unfairness
and deprived him of a fair trial. (People v. Ochoa (1998) 19 Cal.4th 398, 409.)
Defendant argues there was an improper “spillover effect” during the guilt phase
because “of the joinder of weak and strong counts” and that this effect continued
during the penalty phase. Defendant observes that eyewitness identification
evidence “established that appellant was the assailant” in the Hernandez and
Okazaki, Carol K., Sophie D., Chainarong K., Petersen, Elyas A., Yu, Doi, and
Nelson incidents. He argues that these “strong counts” should not have been
joined with the “weak counts” involving Bell, Florence L., Cannon, and Nelson in
which “there was either no identification evidence or at best weak physical
evidence that only tenuously linked appellant to the crimes.” These charges can
hardly be described as weak. A pentagram had been drawn on Bell’s thigh and on
the wall near Florence L. Avia shoe prints were found at the scene of the crime
and defendant later sold property taken during the crime to Felipe Solano. Avia
shoe prints also were found at the scene of Cannon’s murder, and defendant was
seen sitting in a parked car next door to Nelson’s house shortly before she was
murdered and Avia shoe prints were found in her flower bed. There was no gross
unfairness and defendant was not deprived of a fair trial.
6. Challenge to Jury Venire
Defendant claims that his jury “was not drawn from a fair cross-section of
the population” in violation of Code of Civil Procedure sections 197 and 203,
47
article I, section 16 of the California Constitution, and the Sixth Amendment to the
federal Constitution because the methods used to summons the jury venire
“resulted in the elimination of a disproportionate number of Hispanics.” As
explained below, defendant challenged the composition of the master list that was
used to summon jurors during the 1987-1988 fiscal year that ended in June of
1988. But jury selection in the present case commenced on July 21, 1988, using
prospective jurors summoned using the new master jury list for the 1988-1989
fiscal year. Further, the jury commissioner adopted a suggestion by defendant that
significantly increased the representation of Hispanics on this new master list.
Defendant’s objection to the composition of the old master jury list was rendered
moot. Defendant failed to object to the composition of the new master list, and
thus forfeited any objection to the composition of the master list actually used to
select the jury in the present case.
On January 20, 1988, defendant filed a motion to “quash all existing jury
panels” on the ground that Hispanics were systematically underrepresented on the
jury venire.8 An evidentiary hearing spanning several days was held in April and
May, 1988.
8
Defendant’s motion in the trial court also urged that “young persons,” and
“low income persons” were systematically excluded from the jury venire as well.
In a footnote to the reply brief, defendant states he “inadvertently omitted” these
two bases for challenging the jury venire in his opening brief, adding without
supporting argument or citation of authority that “[t]hese grounds are also asserted
as improper bases for underrepresentation and exclusion of potential jurors.” We
need not, and do not, resolve these contentions. “ ‘[E]very brief should contain a
legal argument with citation of authorities on the points made. If none is furnished
on a particular point, the court may treat it as waived, and pass it without
consideration. [Citations.]’ [Citations.]” (People v. Stanley (1995) 10 Cal.4th 764,
793.)
48
Raymond Arce, Director of Jury Management, Office of the Jury
Commissioner, testified that each fiscal year, usually in May, a master list of
potential jurors in Los Angeles County is compiled using records from the county
registrar of voters and the California Department of Motor Vehicles. A list of
qualified prospective jurors is obtained based upon responses to prospective juror
questionnaires sent to persons on the master list. Prospective jurors are randomly
summoned from this list of qualified jurors when a court requires jurors.
Dr. Raymond Weeks, a professor of sociology, was called by defendant as
an expert on demographics and testified that he analyzed questionnaires of more
than 10,000 persons who appeared for jury service in the Central Judicial District
from August to mid-December of 1987 and noted that 14 percent identified
themselves as Hispanic. Based upon the 1980 census as well as data compiled by
California State University, Dr. Weeks estimated that 24.3 percent of the
population in the Central Judicial District were Hispanics who qualified for jury
service. Dr. Weeks further stated that the Hispanic population had increased
proportionately since 1980 and estimated that by 1987, the percentage of the
population of the Central Judicial District that were Hispanics who qualified for
jury service was actually 26.3 percent. Thus, in Dr. Weeks’s opinion, there was an
absolute disparity of 12.3 percentage points between the 14 percent of persons
who appeared for jury service in the Central Judicial District and identified
themselves as Hispanic and the 26.3 percent of the population of the Central
Judicial District who were Hispanics who were eligible for jury service. The
relative disparity – which is the absolute disparity (12.3 percent) divided by the
percentage of Hispanics in the population (26.3 percent) – was 47 percent. (See
People v. Sanders (1990) 51 Cal.3d 471, 492, fn. 5.)
At the time, Code of Civil Procedure section 203 provided that “no juror
shall be required to serve at a distance greater than 20 miles from his or her
49
residence.” (Stats. 1980, ch. 81, § 9, p. 204.) Accordingly, Dr. Weeks also
compiled statistics for the area within a 20-mile radius from the courthouse from
which prospective jurors actually were drawn and concluded that in 1987 the
percentage of Hispanics within a 20-mile radius of the Central Courthouse who
were eligible for jury service was 17.5 percent. The absolute disparity between
that figure (17.5 percent) and the percentage of Hispanics that appeared for jury
service (14 percent) was 3.5 percent. The relative disparity (3.5 percent divided
by 17.5 percent), therefore, was 20 percent.
Dr. Nancy Minter, a demographics expert employed by the County of Los
Angeles, testified for the prosecution and disagreed that the population of persons
eligible for jury service had increased by 1987, pointing out that the growth in the
Hispanic population during this period consisted primarily of noncitizens who
were ineligible for jury service. According to Dr. Minter, therefore, the absolute
disparity between the 14 percent of persons who appeared for jury service and
identified themselves as Hispanic and the 16.3 percent of the population within the
20-mile radius who were Hispanics who were eligible for jury service was just 2.3
percent. The relative disparity (2.3 percent divided by 16.3 percent), therefore,
was 14 percent.
Dr. Weeks opined that the disparity between the percentage of Hispanics
available for jury service and the percentage that appeared for service was caused
by the jury commissioner’s use of records from the registrar of voters to compile a
primary list. A similar list is drawn from the records of the Department of Motor
Vehicles (DMV). Duplicate names on the DMV list are eliminated by comparing
the full last name and the first four letters of the first name on the two lists. If an
exact match is found, that name is removed from the DMV list. The remaining
names on the DMV list and all of the names on the registrar of voters list are
combined to form the master list. Dr. Weeks testified that using the registrar of
50
voters list as the primary list results in an underrepresentation of Hispanics,
because the percentage of Hispanics who are eligible to vote and who actually
register to vote “is lower than for other groups in the population.” Dr. Weeks also
pointed out that the process of eliminating duplicate names from the two lists was
inaccurate, because only the exact last name and the first four letters of the first
name were compared. Because many members of the Hispanic community share
common surnames and first names, Hispanics might be erroneously deleted from
the DMV list. The accuracy of determining if names on the two lists were
duplicates would be increased if, in addition to the names, the birth date and
address of the prospective jurors were compared.
At the urging of the defense, Arce conducted an experiment on a small
sample of the registrar of voters and DMV lists, which resulted in an increase from
19 to 26 percent Hispanics when the DMV list was used as the primary list. Arce
stated that in compiling the new master list for the next fiscal year, he intended to
compare the entries on the registrar of voters list and the DMV list using addresses
as well as names.
On May 31, 1988, the trial court denied defendant’s motion to quash the
jury venire. The court held that, assuming the defense expert was correct that
there was a 3.5 percent absolute disparity between the percentage of jury-eligible
Hispanics in the area within a 20-mile radius of the courthouse from which
prospective jurors were drawn and the percentage of Hispanics that appeared for
jury service, which amounted to a relative disparity of 20 percent, this did “not
appear to this court to be of constitutional significance . . . .” The court went on to
find “that the petit jury selection process and procedures in Los Angeles County
reasonably and practically comply with California Code of Civil Procedure
sections 190, et seq.” While declining to so order, the court urged the jury
commissioner to improve the method used to remove duplicate names from the
51
registrar of voters list and the DMV list by comparing the date of birth listed for
duplicate names, noting that “it appears all would benefit.”
On June 7, 1988, during a “readiness conference,” Raymond Arce testified
that a new master list had been compiled to be used in the upcoming 1988-1989
fiscal year and that duplicate names on the registrar of voters list and the DMV list
were determined by comparing both the name and the date of birth, which resulted
in a master list that was “ten percentage points higher in the Hispanic
representation.” The percentage of Hispanics on the new master list was 28.4
percent. The new list was already being used to send out juror questionnaires and
jurors from the new list would begin appearing in court in mid-July. Jury
selection commenced on July 21, 1988.
Defendant argues that his jury “was not drawn from a fair cross-section of
the population” in violation of former Code of Civil Procedure sections 197 and
203, article I, section 16 of the California Constitution, and the Sixth Amendment
to the federal Constitution. But the procedures to which defendant objected in the
trial court, and which the trial court found did not produce a constitutionally
significant underrepresentation of Hispanics, were not the procedures used to
select his jury. In order to preserve this issue for review, the defendant must
“object to the panel or move to quash the jury venire on this ground.” (People v.
Lewis (2001) 25 Cal.4th 610, 634.) Defendant objected to, and moved to quash,
the master list of jurors drawn for use in the 1987-1988 fiscal year. Although the
trial court overruled defendant’s objection and ruled there was no significant
disparity in the percentage of Hispanics, the office of the jury commissioner
adopted defendant’s request to improve the method by which duplicate names
were eliminated, which resulted in a significant increase in the percentage of
Hispanics on the new master jury list that was used to select defendant’s jury.
Defendant’s objection to the 1987-1988 master list was rendered moot, because
52
that list was not used to summon the jurors in the present case. Defendant did not
object to, or move to quash, the new master list used to select the jury in the
present case and thus has forfeited this issue.
Defendant’s claim also fails on the merits. At the time of trial, former Code
of Civil Procedure section 197 provided: “It is the policy of the State of California
that all persons selected for jury service shall be selected at random from a fair
cross section of the population of the area served by the court . . . .” (Stats. 1980,
ch. 81, § 7, p. 203.) Former Code of Civil Procedure section 203 stated at that
time: “Each court shall adopt rules supplementary to such rules as may be adopted
by the Judicial Council, governing the selection of persons to be listed as available
for service as trial jurors. The persons so listed shall be fairly representative of the
population in the area served by the court, and shall be selected upon a random
basis. Such rules shall govern the duties of the court and its attachés in the
production and use of the juror lists. In counties with more than one court location,
the rules shall reasonably minimize the distance traveled by jurors. In addition, in
the County of Los Angeles no juror shall be required to serve at a distance greater
than 20 miles from his or her residence.” (Stats. 1980, ch. 81, § 9, p. 204.)
The Sixth Amendment to the United States Constitution guarantees that “In
all criminal prosecutions, the accused shall enjoy the right to a speedy and public
trial, by an impartial jury of the state and district wherein the crime shall have
been committed . . . .” The California Constitution declares that “Trial by jury is
an inviolate right and shall be secured to all . . . .” (Cal. Const., art. I, § 16.)
These provisions have been interpreted to entitle a criminal defendant to a jury
“selected from a fair-cross-section of the community.” (Duren v. Missouri (1979)
439 U.S. 357, 359; People v. Burgener (2003) 29 Cal.4th 833, 855.) “ ‘That
guarantee mandates that the pools from which juries are drawn must not
systematically exclude distinctive groups in the community. [Citation.]’ ”
53
(Burgener, supra, 29 Cal.4th at p. 856.) “In order to establish a prima facie
violation of the fair-cross-section requirement, the defendant must show (1) that
the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that
the representation of this group in venires from which juries are selected is not fair
and reasonable in relation to the number of such persons in the community; and
(3) that this underrepresentation is due to systematic exclusion of the group in the
jury-selection process.” (Duren, supra, 439 U.S. at p. 364.)
Defendant satisfied the first prong of this test, because Hispanics are a
“distinctive” or cognizable group. (People v. Ochoa, supra, 26 Cal.4th 398, 426.)
Whether defendant satisfied the second prong by showing that Hispanics
were underrepresented in the jury venire depends in part upon how the community
that serves as a basis for comparison is defined. Defendant introduced evidence
that 14 percent of the persons who appeared for jury service identified themselves
as Hispanic. Defendant compared that percentage to both the percentage of jury-
eligible Hispanics living in the judicial district in which the trial was held (26.3
percent) and the percentage of jury-eligible Hispanics living within a 20-mile
radius from the courthouse (17.5 percent). The trial court selected the 20-mile
radius as the community to which to compare the percentage of Hispanics. This
was reasonable, because this was the area from which the jurors actually were
summoned. At the time, former Code of Civil Procedure section 203 stated that
“in the County of Los Angeles no juror shall be required to serve at a distance
greater than 20 miles from his or her residence.” Consequently, the jurors were
summoned from the area within a 20-mile radius of the courthouse.
Relying upon our decision in Williams v. Superior Court (1989) 49 Cal.3d
736, which was filed the year after the trial court ruled in the present case,
defendant argues the trial court erred in using the area within a 20-mile radius of
the courthouse as the relevant community. But defendant forfeited this issue by
54
failing to object to the trial court’s selection of the relevant community. (People v.
Saunders (1993) 5 Cal.4th 580, 590, fn. 6.)
In any event, we did not hold in Williams that the area within a 20-mile-
radius area of the courthouse could not be used as the relevant community for this
purpose. The defendant in Williams had argued that the relevant community was
the entire county, while the People had asserted the relevant community was the
judicial district. We noted that “the Court of Appeal rejected both definitions,
preferring instead a provocative compromise that defines community as that area
within a 20-mile radius of the courthouse.” (Williams v. Superior Court, supra, 49
Cal.3d 736, 742, fn. omitted.) We ruled that the judicial district, rather than the
entire county was the relevant community, but we expressly declined to consider
the Court of Appeal’s alternate position, because the requirement that no juror in
Los Angeles County be required to serve at a courthouse more than 20 miles from
his or her residence had since been repealed (id. at p. 742, fn. 6): “Inasmuch as
the basis for the decision of the Court of Appeal has been eliminated, no purpose
is served by an extended discussion of the propriety of using the 20-mile-radius
community in determining the population for cross-section analysis.” (Id. at
p. 742, fn. omitted.)
As in Williams, we need not decide in the present case whether the trial
court erred in using the area within a 20-mile radius around the courthouse as the
relevant community for cross-section analysis. Defendant may not raise this issue
for the first time on appeal.
Using the area within a 20-mile radius of the courthouse as the relevant
community, the trial court ruled that the absolute disparity of 3.5 percent, which
translated to a relative disparity of 20 percent, was not constitutionally significant.
We agree. In People v. Burgener, supra, 29 Cal.4th 833, 856, we observed that it
was “uncertain” whether an absolute disparity of 10.7 percent, which produced a
55
relative disparity of 65 percent, was sufficient to satisfy the second prong of the
Duren test. In People v. Bell (1989) 49 Cal.3d 502 we did not decide whether an
absolute disparity of 5 percent between the percentage of Blacks in the community
(8 percent) and the percentage that appeared for jury service (3 percent) was
constitutionally significantly, but we observed that “[i]t does not appear that a
disparity of this degree renders the representation of Blacks on jury venires less
than fair and reasonable . . . .” (Id. at p. 527.) Based upon these figures, the
relative disparity in Bell was 62.5 percent. The trial court in the present case was
correct that the 3.5 percent absolute disparity and 20 percent relative disparity
between the percentage of Hispanics who appeared for jury service and the
percentage of Hispanics in the area within 20 miles of the courthouse was not
constitutionally significant.
By the time jury selection in the present case commenced on July 21, 1988,
the jury commissioner had begun utilizing an improved method for identifying
and eliminating duplicate names from the lists drawn from the registrar of voters
and the DMV. This change increased the percentage of Hispanics on the master
list to 28.4 percent, which is more than both the 17.5 percent of the population
within a 20-mile radius of the courthouse and the 26.3 percent of the population in
the Central Judicial District. It is clear, therefore, that Hispanics were not
systematically excluded from the venire from which defendant’s jury was chosen.9
9
Defendant argued in his opening brief that the trial court erred in denying
his motion for sequestered voir dire of the jury. Defendant asserted that
unsequestered voir dire increased the juror’s exposure to prejudicial pretrial
publicity. In response, the People pointed out that although the court denied
defendant’s motion for the jurors to be sequestered during the entire voir dire, the
prospective jurors were questioned individually (i.e., sequestered) regarding bias,
and the allegedly prejudicial statements recounted by defendant in his opening
(Footnote continued on next page.)
56
7. Challenge for Cause to Juror Robert D.
The prospective jurors were sequestered and individually questioned
concerning their views on the death penalty as then required by our decision in
Hovey v. Superior Court (1980) 28 Cal.3d 1, 80.10 In response to questioning by
the court, Prospective Juror Robert D. stated that he would not automatically vote
to impose the death penalty and, instead, would consider all of the evidence before
making a decision. In response to questioning by defense counsel, the prospective
juror agreed that he was a strong supporter of the death penalty, rating his support
as eight on a scale of 10. He stated that death was “a just punishment for certain
crimes.” When asked what crimes he had in mind, he answered: “Mostly murder,
I would think.” He added that if the defendant were convicted of first degree
murder and found to be eligible for the death penalty, he would vote to impose the
death penalty unless he were convinced otherwise.
Upon examination by the People, the prospective juror acknowledged that
he would weigh and consider the evidence presented and base his decision on that
evidence and would not vote “automatically” for anything. He denied that he
would always vote to impose the death penalty for first degree murder “no matter
what the circumstances that led to that conviction.” He stated that he would not
“necessarily be committed from the outset to the imposition of the death penalty.”
The trial judge then engaged the prospective juror in the following
colloquy:
(Footnote continued from previous page.)
brief actually were made during this partially sequestered voir dire. In his reply
brief, defendant withdrew this contention.
10
This holding in Hovey was “abrogated” by the passage of Proposition 115.
(People v. Waidla (2000) 22 Cal.4th 690, 713.)
57
“The Court: . . . . If . . . you as [a] juror found a defendant guilty of first
degree murder and you also found a special circumstance to be true beyond a
reasonable doubt, would that put you in a position where in every case would you
always vote for the death penalty?
“Prospective Juror Robert D[.]: I don’t think I could say in every case. I
will have to judge each case by its own merits.”
Defendant challenged Prospective Juror Robert D. for cause, because he
indicated he would vote for the death penalty unless he were convinced otherwise.
The trial court denied the challenge.
After the jury had been selected and sworn, Prospective Juror Robert D.
was examined for selection as an alternate juror. Defendant subsequently
exercised a peremptory challenge to excuse Prospective Juror Robert D. and
eventually exhausted his peremptory challenges to the alternate jurors.
Defendant argues that Prospective Juror Robert D. should have been
excused for cause because he “made it clear . . . that he favored the death penalty
as the appropriate punishment and would place a burden on a defendant to prove
that death was not the appropriate punishment.”
“To preserve a claim of trial court error in failing to remove a juror for bias
in favor of the death penalty, a defendant must either exhaust all peremptory
challenges and express dissatisfaction with the jury ultimately selected or justify
the failure to do so. [Citations.]” (People v. Williams (1997) 16 Cal.4th 635, 667.)
Defendant in the present case exhausted his peremptory challenges to the alternate
jurors, but did not express dissatisfaction with the jury ultimately selected. In
response to the People’s observation that defendant did not request additional
peremptory challenges during the selection of the alternate jurors, defendant
asserts that such a request would have been futile, because the trial court had
denied his earlier request for additional peremptory challenges during the selection
58
of the seated jurors. This does not explain, however, defendant’s failure to
express dissatisfaction with the jury ultimately selected. As we explained in
People v. Bittaker (1989) 48 Cal.3d 1046, 1087-1088, defendant is entitled to
relief only “if he can actually show that his right to an impartial jury was affected
because he was deprived of a peremptory challenge which he would have used to
excuse a juror who sat on his case.” Unless, in addition to exhausting his
peremptory challenges, the defendant expresses dissatisfaction with the jury
ultimately selected, we cannot know whether the earlier denial of the challenge for
cause deprived the defendant of a peremptory challenge that he or she would have
used to excuse a juror who sat on his case. Accordingly, defendant has not
preserved this claim for review.
In any event, the trial court did not err in refusing to excuse for cause
Prospective Juror Robert D.
A prospective juror must be excused if his views on the death penalty
“ ‘would “prevent or substantially impair the performance of his duties as a juror
in accordance with his instructions and his oath.” ’ ” (People v. Griffin (2004) 33
Cal.4th 536, 558, quoting Wainwright v. Witt (1985) 469 U.S. 412, 424.) We will
uphold the trial court’s ruling on this question if it is supported by substantial
evidence. (Griffin, supra, 33 Cal.4th at p. 558.) The trial court’s finding are
“ ‘generally “binding” “if the prospective juror’s responses are equivocal . . . or
conflicting . . .” ’ [Citations.]” [Id. at pp. 558-559.] Although the prospective
juror in the present case described himself as a strong supporter of the death
penalty, he assured the court multiple times that he would not automatically vote
for the death penalty and would, instead, reach a decision based upon all of the
evidence. Defendant places great emphasis on the prospective juror’s statement
that he would vote to impose the death penalty unless he was convinced otherwise,
but this comment must be considered in light of the prospective juror’s
59
explanation that he would not “necessarily be committed from the outset to the
imposition of the death penalty.” The trial court’s implied finding that the
prospective juror’s views on the death penalty would not substantially impair the
performance of his duties as a juror is supported by substantial evidence.
8. Shackling of Defendant
Defendant contends that the circumstance that he was restrained by leg
shackles deprived him “of his due process and fair trial rights under the Fifth,
Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.”
On the first day of jury selection, July 21, 1988, the court informed counsel
outside the hearing of the jury that the bailiff reported that defendant was unhappy
wearing a leg brace. The court noted that the brace was less obtrusive than leg
chains and thus to defendant’s advantage. Defense counsel agreed, but indicated
that defendant preferred leg chains. At defendant’s request, the court ordered that
the brace be replaced by leg chains. On August 2, 1988, during a discussion of
courtroom security measures, the court noted in general terms that it had ordered
increased courtroom security, including the use of a metal detector, because it had
“received information with regards to threats about individuals involved in this
case.”
On December 19, 1988, before the prospective jurors were brought into the
courtroom, the prosecutor noted that the proceedings had been moved to a smaller
courtroom, which would require the jury to pass by the counsel table where they
might see defendant’s leg chains. The prosecutor suggested that defendant again
wear a leg brace rather than leg chains. Defense counsel responded that defendant
“has up to now requested that he be given chains rather than a leg brace. I would
prefer the leg brace; however, at this point this morning I think my client’s
position is that he should have neither.” The court stated: “I think that in view of
60
the history of this case, and some of the statements made by Mr. Ramirez, that
restraint is required in this case.” The court, however, asked defendant whether he
“wanted a hearing on this issue,” adding: “I’d be happy to have a hearing on the
issue. This morning, however, the issue is whether or not he is going to be
restrained with shackles on his legs or with a more or less invisible leg brace and
which is it to be? I mean, quite frankly, gentlemen, Mr. Ramirez has been in
restraints the entire period of jury selection . . . . [¶] One or the other at this point,
and if you want a hearing as to whether or not we ought to have any restraints at
all, I will be happy to give that to you on a Friday sometime and we’ll thrash it
out.” Defendant chose to keep the leg chains because the leg brace was “too
uncomfortable.” Defendant did not request a hearing concerning whether
restraints of any type were justified.
On January 30, 1989, the court again asked defendant whether he preferred
wearing a leg brace that would not be visible to the jury, rather than leg chains.
Defendant again chose to wear the leg chains.
At the conclusion of the guilt phase of the trial, the court instructed the jury,
without objection by defendant, as follows: “You may have observed that the
defendant has worn restraints while in the courtroom. This fact shall have no
bearing upon your determination of the defendant’s guilt or innocence. That
determination must be based solely upon the evidence presented to you.”
Although we could construe as an objection to the use of physical restraints
defense counsel’s passing comment that “I think my client’s position is that he
should have neither” a leg brace or leg chains, defendant failed to preserve this
issue for review because, despite the court’s invitation to resolve the issue at a
later hearing, he did not request such a hearing or otherwise press for a ruling on
the necessity for physical restraints. Defendant’s failure to press the court for a
ruling “deprive[ed] the trial court of the opportunity to correct potential error.”
61
(People v. Morris (1991) 53 Cal.3d 152, 195, disapproved on other grounds in
People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.)
Even without the court having held a hearing on this issue, it appears that
the trial court did not abuse its discretion in ordering that defendant be physically
restrained during trial. “[A] defendant cannot be subjected to physical restraints of
any kind in the courtroom while in the jury’s presence, unless there is a showing
of a manifest need for such restraints.” (People v. Duran (1976) 16 Cal.3d 282,
290-291, fn. omitted.) But the court’s determination that physical restraints are
needed will not be overturned on appeal “except on a showing of a manifest abuse
of discretion.” (Id. at p. 293, fn. 12.)
The trial court in the present case concluded that it was necessary to
physically restrain defendant “in view of the history of this case, and some of the
statements made by Mr. Ramirez.” Defendant’s bizarre actions following his
arrest made it reasonable for the court to fear that defendant would act violently.
When he was arrested, defendant invited the police to kill him, and asked to
borrow a gun so he could kill himself. While in jail awaiting trial, defendant used
his blood to draw a pentagram on the floor and write the number 666. In court,
during his arraignment in municipal court, defendant said, “Hail Satan,” and
displayed a pentagram and the number 666 on his palm. Under the circumstances
of the present case, the trial court did not abuse its discretion in ordering defendant
to be physically restrained during trial.
Because the record establishes a manifest need for some form of physical
restraint, defendant cannot complain that a less visible form of restraint, such as a
leg brace, should have been used rather than leg shackles. Defendant expressly
chose to wear leg chains instead of a less visible, but more uncomfortable, leg
brace, and has therefore waived any objection to that form of restraint.
62
B.
Guilt Phase Issues
1. Photographs of the Victims
Defendant claims that the trial court erred in admitting into evidence
photographs of eight of the victims because those photographs were irrelevant,
gruesome, and highly inflammatory. Having viewed the photographs, we
conclude, for the reasons that follow, that the photographs were properly admitted
into evidence.
At trial, defendant objected to three photographs of murder victim Jennie
Vincow lying on her bed as “very inflammatory” and gruesome. The prosecutor
responded that the photographs were not unduly gruesome and were relevant to
show that the body had been covered by a blanket (which affected the
determination of the time of death), the nature and extent of her injuries, and the
position of her clothing, which suggested a sexual assault. The court admitted the
photographs, ruling that they were relevant and adding, “although they are not
particularly pleasant to look at, they were not so unduly gruesome to inflame the
jury.”
The court admitted into evidence over defendant’s objection that it was
cumulative and irrelevant a photograph of Dale Okazaki lying dead on the floor
with spilled groceries near her as she was found by law enforcement officers.
Defendant unsuccessfully objected to a second photograph of the victim lying on
the floor, arguing that it was irrelevant because the victim’s body had been moved
when it was examined and, thus, the photograph did not depict the scene as it was
found by the investigators. The court also admitted a photograph of the victim’s
face taken at the autopsy despite defendant’s objection “under 352.” The court
overruled the objection, stating: “It is not a pleasant picture, but it is certainly not
unduly gruesome and does depict the wound causing death and the appearance of
the victim . . . .”
63
Defendant objected to an autopsy photograph of Tsai-Lian Yu that showed
a breathing tube in the victim’s mouth, stating there was “some degree of
unpleasantness to the photograph” that was “not necessary.” The court admitted
the photograph, concluding it was “not objectionable under [Evidence Code
section] 352 or any other criteria.”
Defendant objected on grounds that they were “extremely grotesque and
prejudicial” to photographs of Maxine Zazzara taken at the scene of the crime and
during her autopsy, which showed that her eyes had been removed. The trial court
overruled the objection, stating: “I find that their probative value far exceeds any
inflammatory nature, although again, they are not pleasant to look at, but this is a
murder case, but they would be useful certainly for a doctor to use to give the
cause of death, perhaps the manner of death. It also would be useful just in
general to indicate the manner or method of death . . . .” The court later added that
although “they are not pleasant to look at,” they are relevant and “as non-
inflammatory as possible.” The court, sua sponte, then gave the jury a cautionary
instruction: “Ladies and gentlemen, we’re going to have some photographs given
to you for your examination of the scene at the Zazzara household. Now, quite
frankly, the photographs are unpleasant. And also there will be a coroner’s
photograph of Mrs. Zazzara. You heard the description of the wounds that she
suffered and these photographs do depict those wounds. Now, you must not allow
yourselves to become inflamed against the defendant or any party to this lawsuit
simply because these photographs are being shown to you. This is not the purpose
of these photographs.”
Defendant objected to a coroner’s photograph of William Doi with a
“breathing apparatus” in his mouth on the grounds that it is irrelevant “and also
under 352 it does have some foreign matter or other materials depicted that
obviously are from something other than what was found at the scene.” The court
64
overruled the objection, finding “that the picture is not inflammatory and that it
has . . . probative value certainly to identify the victim and it is not grotesque and
it is not particularly repulsive . . . .”
Before showing the jury photographs of Mabel Bell and Florence L., to
which defendant did not object, the court again remarked that “some of the
photographs . . . are not pretty” but admonished the jury “not to be inflamed or in
any other way emotionally involved in these photographs,” asking the court to
“look at them as neutrally and as objectively as you possibly can.”
Defendant objected to a photograph of Mary Cannon taken at the scene of
the crime and two coroner’s photographs of the victim on the grounds that they
were “sufficiently gory” and would “inflame the jury.” Defendant described the
photograph of the victim at the scene of the crime as “particularly hideous.” At
the request of the court, the prosecutor withdrew the photograph of the victim
taken at the scene at the crime. The court then admitted into evidence the two
coroner’s photographs, stating: “I think they are necessary, . . . to identify the
victim, and . . . to indicate the wound. . . . The body [has] been cleaned up and the
great masses of blood have been eliminated, and they are not pretty, either one of
them, but I think they are necessary for the purposes of this trial.”
Defendant objected to three coroner’s photographs of Lela Kneiding. The
court admitted a photograph of the victim’s face, which had a small wound on one
cheek and two black eyes, noting that the court did not “see anything ghastly
about it or inflammatory.” The two remaining photographs depicted head
wounds. After some discussion about whether both photographs depicted the
same wound, at the court’s suggestion, the prosecutor withdrew one of the
photographs and the court admitted into evidence the other photograph.
Whether the trial court erred in admitting into evidence the challenged
photographs of the murder victims depends upon two factors: (1) whether the
65
photographs were relevant, and (2) whether the trial court abused its discretion in
determining that the probative value of each photograph outweighed its prejudicial
effect. (People v. Carter (2005) 36 Cal.4th 1114, 1166.)
It is clear that the challenged photographs were relevant. “ ‘Relevant
evidence’ means evidence . . . having any tendency in reason to prove or disprove
any disputed fact that is of consequence to the determination of the action.” (Evid.
Code, § 210.) Defendant argues that the photographs “had little, if any, relevance
to the determination of guilt.” To the contrary, the photographs were highly
relevant to show the manner in which the victims were killed and the severity of
their injuries. (People v. Heard (2003) 31 Cal.4th 946, 973; People v. Crittenden
(1994) 9 Cal.4th 83, 132-133.) The photographs also clarified the coroner’s
testimony. (People v. Taylor (1992) 2 Cal.4th 489, 524.) Several of the victims
had similar injuries, such as distinctive neck wounds and black eyes, which
supported the conclusion that these crimes were committed by the same person.
(People v. Ewoldt (1994) 7 Cal.4th 380, 403.)
Nor did the trial court abuse its discretion in determining that the probative
value of each photograph outweighed its prejudicial effect. “The court in its
discretion may exclude evidence if its probative value is substantially outweighed
by the probability that its admission will . . . create substantial danger of undue
prejudice . . . .” (Evid. Code, § 352.) “The admission of photographs of a victim
lies within the broad discretion of the trial court when a claim is made that they are
unduly gruesome or inflammatory. [Citations.] The court’s exercise of that
discretion will not be disturbed on appeal unless the probative value of the
photographs clearly is outweighed by their prejudicial effect. [Citations.]”
(People v. Crittenden, supra, 9 Cal.4th 83, 133-134.) “[A] court may admit even
‘gruesome’ photographs if the evidence is highly relevant to the issues raised by
the facts, or if the photographs would clarify the testimony of a medical
66
examiner.” (People v. Coleman (1988) 46 Cal.3d 749, 776.) “We have
consistently upheld the introduction of autopsy photographs disclosing the manner
in which a victim was wounded as relevant not only to the question of deliberation
and premeditation but also aggravation of the crime and the appropriate penalty,
all of which were at issue here. [Citations.]” (People v. Cox (1991) 53 Cal.3d 618,
666.)
As noted above, the disputed photographs were highly relevant. The
victims’ wounds tended to prove, among other things, “the kind and degree of
force used on the victims.” (People v. Crittenden, supra, 9 Cal.4th 83, 134.)
Although several of the photographs certainly are gruesome, especially the
photograph of Maxine Zazzara with her eyes cut out, they were not unduly so.
“[V]ictim photographs . . . in murder cases always are disturbing. [Citation.]”
(Ibid.) The court carefully reviewed each photograph and, on one occasion,
prevailed upon the prosecutor to withdraw a photograph that was particularly
graphic and, on another occasion, to withdraw a photograph that was cumulative.
(People v. Taylor, supra, 2 Cal.4th 489, 524.) The photographs at issue here are
gruesome because the charged offenses were gruesome, but they did no more than
accurately portray the shocking nature of the crimes. The jury can, and must, be
shielded from depictions that sensationalize an alleged crime, or are unnecessarily
gruesome, but the jury cannot be shielded from an accurate depiction of the
charged crimes that does not unnecessarily play upon the emotions of the jurors.
The record reflects that the experienced trial judge was well aware of his duty to
weigh the prejudicial effect of the photographs against their probative value, and
carefully did so. (People v. Coleman, supra, 46 Cal.3d 749, 776.)
The trial court did not err in admitting the challenged photographs of the
victims.
67
2. Refusal to Remove Sunglasses
Defendant asserts that the trial court erred in instructing the jury that it
could consider whether defendant’s refusal to remove his sunglasses as ordered by
the court so that a witness could identify him showed a consciousness of guilt.
Defendant asserts that this error “undermined” his defense “in violation of his
right, inter alia, to fair trial, effective assistance of counsel, due process and
fundamental fairness under the Fifth, Sixth, Eighth and Fourteenth Amendments
to the United States Constitution.”
During his testimony regarding the murder of Tsai Lian Yu, eyewitness
Jorge Gallegos identified defendant, but added the observation, “he’s just a little
different,” explaining, “his hair is just a little longer.” On cross-examination, the
following exchange occurred:
“[Defense Counsel]: . . . the man at the trial looks different than the man
you saw that night.
“A. Yes.
“Q. The hair, the dress?
“A. Yes; the hair, the clothing, the glasses.
“Q. Okay. He doesn’t look the same as he looked that night?
“A. No, he does not look the same. Can he stand?
“The Court: Would you like him to stand?
“[Gallegos]: Yes, I would like to see his profile without glasses and also
from behind.
“[Defense Counsel]: Your honor, he has already made an I.D. I think this
is just –
“The Court: Mr. Hernandez, you are making an issue of it. Mr. Ramirez,
would you rise, please, take your glasses off and face my clerk.
“The Defendant: No.
68
“The Court: Very well. Thank you. The record will so reflect, the
defendant has refused to stand, take his glasses off and face my clerk so that the
profile could be seen by the witness.”
At the close of the guilt phase of the trial, the court instructed the jury, over
defendant’s objection, that defendant’s refusal to stand and remove his sunglasses
“is not sufficient standing alone and by itself to establish the guilt of the
defendant, but it is a fact which, if proved, may be considered by you in the light
of all other facts in deciding whether defendant is guilty or not guilty. The weight
to which such a circumstance is entitled and whether or not such conduct shows a
consciousness of guilt are matters for your determination.”
The jury properly could infer that defendant’s refusal to remove his
sunglasses so that the witness could better identify him demonstrated a
consciousness of guilt in the same manner as a defendant’s refusal to provide a
handwriting exemplar. “ ‘[T]he refusal of a defendant to provide an exemplar in
violation of a court order is admissible evidence of the defendant’s consciousness
of guilt.’ [Citations.]” (People v. Farnam (2002) 28 Cal.4th 107, 153.)
Citing our decision in People v. Hannon (1977) 19 Cal.3d 588, defendant
argues that the trial court erred in failing to determine that the inference of
consciousness of guilt was supported by sufficient evidence. Our decision in
Hannon does not assist defendant. In that case, the trial court modified the
standard jury instruction regarding consciousness of guilt to read, in part: “ ‘Now,
evidence, if there was any in this case, that the defense attempted to suppress any
evidence’ ” could show a consciousness of guilt. (Id. at p. 597, fn. 3.) We held
that before the jury could be instructed that it could infer a consciousness of guilt,
the trial court must determine as a matter of law whether there is “evidence in the
record which, if believed by the jury, will sufficiently support the suggested
inference.” (Id. at p. 597.) This requirement is satisfied in the present case.
69
Defendant refused to remove his sunglasses after being ordered to do so by the
trial judge in open court. It is beyond question, therefore, that there is evidence in
the record which, if believed by the jury, supports the inference that defendant’s
refusal indicates a consciousness of guilt. The trial court did not err in giving the
challenged jury instruction.
3. Discharge of Juror
During jury deliberations at the guilt phase of the trial, the trial court
discharged Juror Robert L., over defendant’s objection, after receiving information
from the jury foreperson that the juror had fallen asleep on two occasions.
Defendant contends that this violated his rights under the Fifth, Sixth, Eighth, and
Fourteenth Amendments to the federal Constitution.
On July 25, 1989, during the closing arguments of counsel, one of the
jurors sent the court a note that read as follows: “As a seated juror in this case, I
must state my concern regarding juror #3, Mr. L[.]. As you are aware I am sure,
he tends to catnap during the day. [¶] I am concerned with the fact that he has
surely missed a great percentage of the testimony throughout this trial. [¶] Since
we are nearing deliberations, I am concerned that he will not be able to input with
total knowledge of what was testified to during the trial. [¶] This is also a concern
of several of the other jurors and we were wondering if anything could be done to
correct this situation.”
In response, the court admonished the jury that it was important to be
attentive, adding: “But if any of you feel that you have missed any of the evidence
in a significant way . . . it is incumbent upon you, under the oath that you took as a
juror, to bring that to the court’s attention. It is no disgrace. These things
happen.”
70
On August 11, 1989, the 13th day of guilt phase deliberations, the trial
court informed counsel that it had received from the jury foreperson a note that
read: “Your Honor, Fellow jurors have brought it to my attention that juror # 3
Mr. Robert L.] has fallen asleep on two occasions during our deliberations. I also
have seen him not quite as attentive as a result of his dozing off. As foreman I
find it my responsibility to bring this to your attention.”
The court stated: “This is the juror that we have noticed behaving as if he
were dozing off from time to time. It now appears that several jurors have
indicated that – to the foreman that he has – or has fallen asleep. I’m
disappointed, but I guess not exactly surprised.” The trial judge remarked that he
could not say the juror “has slept, but he certainly has jerked his head up abruptly
from time to time as if he were nodding off or had nodded off and was awakening,
but I cannot say that I have ever found him to be asleep.”
The court conducted a hearing and asked the jury foreperson whether he
had actually seen the juror asleep. The foreperson answered: “Yes, sir. Actually,
I believe it was Tuesday, right before lunchtime, I believe about 11:30, he was
sitting there and we’re carrying on our normal deliberations, and you know, you
could see he was nodding and then he just stood there, I would say about maybe a
good four to five minutes maybe. And also I believe Wednesday after lunch, you
know, we returned from lunch, we were sitting there right around maybe little bit
about two o’clock, you know, I made a mental note of it, and he was sitting there.
Again, you know, he was nodding and he was asleep because I could hear him
snoring . . . .”
The court dismissed the juror over defendant’s objection, stating: “I have
from time to time observed Mr. L[.], as I have indicated before, nodding, and it
seemed somewhat clear that – that Mr. L[.] was asleep or dozing or catnapping or
doing something other than paying rapt attention to the proceedings. I probably,
71
in an attempt not to embarrass Mr. L[.] too much, made some remarks to the jury
in general and was looking at him in particular as I was making these remarks with
regards to paying attention . . . but he even during argument occasionally would
again bounce his head up and down quickly as if rudely awakening himself or
something of that nature. The court finds that although I gave Mr. L[.] . . . the
benefit of a reasonable doubt prior to today with regard to his attentiveness . . . it
now is quite clear that good cause exists to excuse him because of his sleeping.”
The court dismissed the juror, replaced him with one of the alternate jurors,
and instructed the jury to begin its deliberations anew.
“A trial court’s authority to discharge a juror is granted by Penal Code
section 1089, which provides in pertinent part: ‘If at any time, whether before or
after the final submission of the case to the jury, a juror dies or becomes ill, or
upon other good cause shown to the court is found to be unable to perform his
duty, or if a juror requests a discharge and good cause appears therefor, the court
may order him to be discharged and draw the name of an alternate, who shall then
take his place in the jury box, and be subject to the same rules and regulations as
though he had been selected as one of the original jurors.’ (Italics added; see also
Code Civ. Proc., §§ 233, 234.) ‘We review for abuse of discretion the trial court’s
determination to discharge a juror and order an alternate to serve. [Citation.] If
there is any substantial evidence supporting the trial court’s ruling, we will uphold
it. [Citation.] We have also stated, however, that a juror’s inability to perform as a
juror must “ ‘appear in the record as a demonstrable reality. ’ ” [Citation.]’
[Citation.]” (People v. Williams (2001) 25 Cal.4th 441, 447-448, fn. omitted.)
A trial court does not abuse its discretion if it discharges a juror who falls
asleep during the trial. (People v. Johnson (1993) 6 Cal.4th 1, 22.) As we stated
in Johnson, “the court’s ruling excusing [the juror] can be sustained solely on the
basis of its finding that [the juror] had fallen asleep during trial.” (Ibid.) In the
72
present case, the trial judge had observed that the juror had difficulty paying
attention during trial and appeared to fall asleep. The judge’s observations were
consistent with the testimony of the jury foreperson that the juror had fallen asleep
twice during deliberations. The trial court, therefore, did not abuse its discretion
in discharging the juror.
4. Murder of a Juror
Defendant argues that he was denied his rights to due process and to trial
by a fair and impartial jury under the Sixth, Eighth, and Fourteenth Amendments
to the federal Constitution because the trial court failed to conduct an adequate
inquiry and declare a mistrial following the murder of a juror.
On August 14, 1989, the jury was unable to begin deliberations because
one of the jurors, Phyllis Singletary, failed to appear. Eventually, the court
released the jury for the day and instructed them to return the following day,
telling them the court was “attempting to find out what exactly is going on with
juror Singletary.” The court admonished the jury, stating: “Please do not concern
yourself with this. It is something that you simply must not allow to interfere with
your deliberations.” The court added: “And again, please do not expose yourself
to any news media representation about this case.”
Shortly before 10:00 a.m. the following day, the court informed the jury
that Juror Singletary had been shot to death for reasons unrelated to the present
case. The court stated: “Her death is tragic and I think we all grieve for her, but
what happened to her does not add or diminish anything to the evidence as to
whether or not Mr. Ramirez is guilty or innocent of these charges. And I beg you
to remember that in your deliberations.” The court then selected an alternate juror
to replace Juror Singletary and released the jury for the day, ordering them to
73
return the following day and repeating the admonition to “not allow yourself any
exposure to any media representation about this case.”
The jury resumed deliberations the following day, August 16, 1989, but
defendant moved to suspend deliberations to allow the jury a period of mourning.
The court observed that when the jury arrived “all of them seemed, as far as
appearances are concerned, able to carry on their tasks.” The court asked the jury
foreperson, outside the present of the rest of the jury, whether the jury was able to
resume deliberations. The foreperson replied, “I feel that we can probably
continue today,” adding that “[e]veryone appears to have put it behind them.” The
court stated that it was “reasonably satisfied that the jurors are able to proceed
with their deliberations and that upon further admonishment I propose that that is
exactly what we do.” Defendant objected.
The court informed the jury that Juror Singletary had apparently been killed
by her boyfriend as “a result of a personal matter between the two people and it
had nothing to do with this case. When the police approached the boyfriend, he
killed himself.” The court then again instructed the jury that the juror’s death
“was in no way connected with the case of People versus Richard Ramirez and
should in no way be permitted to influence you in the performance of your duties
as jurors as you deliberate the evidence in this case. You are admonished in the
strongest possible terms that your decision in this case must be based on the
evidence that you have seen and heard in this courtroom and from no other
source.” The court then instructed the jury to begin its deliberations anew.
On August 21, 1989, defendant filed a motion to voir dire the jurors
regarding their reactions to the death of Juror Singletary. A hearing was held on
August 31, 1989. The court denied the motion, remarking: “I have been
observing the jury, and I did note on the day that I excused them, that they were
visibly upset, quite frankly. That is why – one of the reasons I gave them the day
74
off. Since this time they have come back and they have, in my opinion, based on
my observations, resumed their usual demeanor and apparent cheerfulness and
ability to get about their business, and I think that is important to remember. . . .
This court has had nothing that would put it on notice, either by the jury or by its
own observations, that would indicate that this jury is not able to continue on with
its deliberations. I believe that the deliberations of the jury are very near sacred in
society and to interfere with them by allowing counsel to voir dire them about how
they feel about Mrs. Singletary’s death, how that has affected their deliberation, or
even for the court to make such an inquiry, would probably be a fatal mistake
. . . .”
On August 23, 1989, defendant filed a motion for a mistrial. The court
denied the motion at a hearing on September 5, 1989.
The jury reached its verdicts on the guilt phase of the trial on September 20,
1989.
Defendant contends the trial court erred in failing “to conduct an inquiry
into the jury’s exposure to news coverage of Juror Singletary’s death.” Defendant
did not raise this ground in the trial court and, thus, has forfeited this claim.
(People v. Saunders, supra, 5 Cal.4th 580, 589, 590.) In any event, the record
does not support defendant’s assertion that the trial court erred in this regard. The
court instructed the jury on several occasions, including before the circumstances
of the juror’s death were made public, to avoid media accounts. We assume that
the jury followed the court’s instructions (People v. Davis (2005) 36 Cal.4th 510,
545), and the record does not contain any indication to the contrary. In any event,
defendant does not explain how he would have been prejudiced even had the
jurors disregarded the court’s instructions and viewed media accounts of the
juror’s murder. The juror’s death had no connection to the present case and it is
75
not apparent from the record that anything in the media accounts of the juror’s
murder would have affected the jury’s deliberations.
Defendant argues the trial court “did not undertake a meaningful inquiry”
into the effect on the jury of the juror’s death because it “failed to inquire, for
example, whether any of the jurors discussed the death of Juror Singletary, the
manner of her death, or whether her death affected their ability to decide
appellant’s fate.” Defendant objected to the jury’s resuming deliberations the day
after the jury learned of the juror’s death, but defendant did not, at that time, ask
the court to conduct a further inquiry of the jurors and, thus, has forfeited any
argument that the court should have done so at that time. Defendant later asked
the court to question the jurors regarding the effect of the juror’s death, but the
court was asked to rule on this request more than two weeks after the jury had
resumed deliberations. The trial court properly denied the request because it
correctly was concerned that interrupting the jury’s deliberations at that point to
inquire about the effect of the juror’s death would undermine the sanctity of
deliberations. “California courts have recognized the need to protect the sanctity
of jury deliberations. [Citations.]” (People v. Cleveland (2001) 25 Cal.4th 466,
475.) One reason “is to ‘ “assure[ ] the privacy of jury deliberations by
foreclosing intrusive inquiry into the sanctity of jurors’ thought processes.”
[Citation.]’ [Citation.]” (Ibid.) “Jurors may be particularly reluctant to express
themselves freely in the jury room if their mental processes are subject to
immediate judicial scrutiny. The very act of questioning deliberating jurors about
the content of their deliberations could affect those deliberations.” (Id. at p. 476.)
We find no fault with the trial court’s response to this tragic event. The
court appropriately released the jury the day it learned of the juror’s murder and
resumed deliberations the following day only after observing the jurors’ demeanor
and inquiring of the jury foreperson whether the jury was ready to resume
76
deliberations. Whether a further inquiry was appropriate is a matter within the
sound discretion of the trial court, which was in the best position to observe the
jury. As we have noted regarding allegations regarding individual jurors: “The
decision whether to investigate the possibility of juror bias, incompetence, or
misconduct – like the ultimate decision to retain or discharge a juror – rests within
the sound discretion of the trial court. [Citation.] . . . [¶] . . . [A] hearing is
required only where the court possesses information which, if proven to be true,
would constitute ‘good cause’ to doubt a juror’s ability to perform his duties . . . .”
(People v. Ray (1996) 13 Cal.4th 313, 343.)
Defendant relies upon our decision in People v. Beeler (1995) 9 Cal.4th
953, 986-991, in which the father of one of the jurors died while the jury was
deliberating in the penalty phase of a capital trial. Rather than replace the juror
with an alternate, the court ordered the jury to resume deliberations that Tuesday
morning, telling the jury the court would recess before noon so the juror could fly
out of state to attend the funeral and deliberations would resume the following
Monday. The jury returned a verdict of death at 11:00 a.m. Although we held
that the trial court did not abuse its discretion in ordering the jury to resume
deliberations, defendant in the present case relies upon our added observation:
“We do not suggest that a more detailed inquiry by the court would have served
no purpose.” (Id. at p. 989.)
It is not clear how defendant is assisted by our decision in Beeler, but any
such assistance is lessened by the fact that the circumstances in Beeler differ
greatly from those in the present case. Although the murder of a fellow juror is
shocking, defendant’s attempt to equate that event with the death of a family
member, especially a parent, is unavailing. And we declined to hold in Beeler that
even “the death of a juror’s parent is so debilitating that the juror is presumptively
unable to deliberate.” (People v. Beeler, supra, 9 Cal.4th at p. 990.)
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Defendant also contends the trial court erred in denying his motion for
mistrial. “A trial court should grant a mistrial only when a party’s chances of
receiving a fair trial have been irreparably damaged, and we use the deferential
abuse of discretion standard to review a trial court ruling denying a mistrial.”
(People v. Bolden (2002) 29 Cal.4th 515, 555.) Nothing in the record before us
supports the conclusion that defendant’s chances of receiving a fair trial were
irreparably damaged.
The trial court in the present case did not abuse its discretion in resuming
deliberations the day after the jury learned that one of the jurors had been
murdered.
5. Sufficiency of Evidence of Burglary
Defendant contends the evidence is insufficient to support his convictions
of burglary of the residence of Maria Hernandez and Dale Okazaki, the felony-
murder of Okazaki based upon the commission of the burglary, and the special
circumstance that the Okazaki murder was committed during the commission of a
burglary.
As noted above, Hernandez testified that on March 17, 1985, about 11:00
p.m., defendant followed her into her garage and shot her as she was about to enter
the condominium she shared with Okazaki. She fell to the ground and lay still
while defendant entered the condominium. When the door to the condominium
closed behind defendant, Hernandez opened the garage door and fled. She heard a
“muffled loud sound” as she escaped and ran around to the front of the
condominium complex where she saw defendant leaving the complex. Defendant
pointed his gun at her, but then ran away. Okazaki had been shot to death in the
head from close range. Her blouse had been pulled up.
78
Defendant contends there is insufficient evidence that defendant entered
the residence with the intent to commit larceny because “[t]here was no evidence
of theft, ransacking, or attempted taking of property.” Defendant concedes that
the evidence supports a finding that defendant entered the residence with the intent
to commit murder or assault, but correctly notes that under the “merger doctrine”
announced in People v. Ireland (1960) 70 Cal.2d 522, 539, such intent cannot
support a finding of felony-murder.
“In reviewing a challenge to the sufficiency of the evidence under the due
process clause of the Fourteenth Amendment to the United States Constitution
and/or the due process clause of article I, section 15 of the California Constitution,
we review the entire record in the light most favorable to the judgment to
determine whether it discloses substantial evidence--that is, evidence that is
reasonable, credible, and of solid value--from which a reasonable trier of fact
could have found the defendant guilty beyond a reasonable doubt.” (People v.
Cole (2004) 33 Cal.4th 1158, 1212.) “The appellate court presumes in support of
the judgment the existence of every fact the trier could reasonably deduce from the
evidence.” (People v. Kraft (2000) 23 Cal.4th 978, 1053.) A burglary is
committed if the defendant enters a residence or other enumerated structure “with
intent to commit grand or petit larceny or any felony.” (§ 459.) But “the felony-
murder rule and the burglary-murder special circumstance do not apply to a
burglary committed for the sole purpose of assaulting or killing the homicide
victim. [Citations.]” (People v. Seaton (2001) 26 Cal.4th 598, 646.)
Accordingly, the jury was instructed that “[t]he crime of burglary requires the
79
specific intent to commit larceny or theft” and further was instructed regarding the
elements of the crime of larceny.11
Although the circumstances of defendant’s attempted murder of Hernandez
and murder of Okazaki do not, standing alone, reveal the intent with which
defendant entered the residence, the jury reasonably could have inferred that he
intended to commit larceny by considering the circumstances of the other charged
offenses. Evidence Code section 1101, subdivision (b), permits “the admission of
evidence that a person committed a crime . . . when relevant to prove some fact
(such as . . . intent . . .) other than his or her disposition to commit such an act.” In
order to be relevant to prove intent, the other crime “must be sufficiently similar to
support the inference that the defendant ‘ “probably harbor[ed] the same intent in
each instance.” [Citations.]’ [Citation.]” (People v. Ewoldt, supra, 7 Cal.4th 380,
402.)
The evidence is overwhelming that one of defendant’s purposes in entering
Hernandez and Okazaki’s residence was to steal. With only one exception, there
was evidence of the theft of property in each of the other charged crimes in which
defendant entered a residence. In eight of these crimes, property later was
recovered that had been stolen from the victim’s residence. In several instances,
surviving witnesses testified that defendant demanded money or other items of
value during the crime.
The prosecution presented the testimony of a person who had purchased
stolen property from defendant on numerous occasions. The defense did not
11
Because the jury was instructed to determine only whether defendant
entered the residence with the specific intent to commit larceny, we do not
consider whether the evidence that Okazaki was found with her blouse pulled up
would have supported a finding that defendant entered the residence with intent to
commit a sexual offense.
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contest that defendant was a burglar. To the contrary, defendant presented
testimony from a convicted burglar that she had committed burglaries with
defendant.
The circumstance that there was no evidence of theft during the
commission of the attempted murder of Hernandez and the murder of Okazaki
does not establish that defendant did not harbor the intent to steal when he entered
the residence. The jury reasonably could have concluded that defendant intended
to steal, but was interrupted when Hernandez unexpectedly opened the garage
door and fled. The jury reasonably could have concluded that defendant
abandoned his plan to steal in order to flee and avoid apprehension.
The evidence is sufficient to support defendant’s convictions for burglary
of the Hernandez/Okazaki residence, felony-murder of Okazaki based upon the
commission of the burglary, and the special circumstance that the murder of
Okazaki was committed during the commission of a burglary.
6. Sufficiency of Evidence of Second Degree Murder of Yu
Defendant challenges the sufficiency of the evidence to support his
conviction of the second degree murder of Tsai-Lian Yu, asserting that the
evidence is insufficient to establish malice because it does not establish that he
intended to kill Yu and, if he did, that he did not act in the heat of passion, or upon
a sudden quarrel, or in unreasonable self-defense. This contention is meritless.
“Murder is the unlawful killing of a human being . . . with malice
aforethought.” (§ 187, subd. (a).) “Such malice may be express or implied. It is
express when there is manifested a deliberate intention unlawfully to take away
the life of a fellow creature. It is implied, when no considerable provocation
appears, or when the circumstances attending the killing show an abandoned and
81
malignant heart.” (§ 188.) Murder that is committed with malice but is not
premeditated is of the second degree. (§ 189.)
As noted above, “In reviewing a challenge to the sufficiency of the
evidence . . . , we review the entire record in the light most favorable to the
judgment to determine whether it discloses substantial evidence—that is, evidence
that is reasonable, credible, and of solid value—from which a reasonable trier of
fact could have found the defendant guilty beyond a reasonable doubt.” (People v.
Cole, supra, 33 Cal.4th 1158, 1212.) “The appellate court presumes in support of
the judgment the existence of every fact the trier could reasonably deduce from the
evidence.” (People v. Kraft, supra, 23 Cal.4th 978, 1053.)
From the evidence presented, the jury reasonably could have concluded that
a few minutes after he shot Maria Hernandez and murdered Dale Okazaki,
defendant used his car to force Yu’s vehicle into the path of a parked car, left his
car and forcibly removed Yu, who was a stranger to defendant, from her car as she
pleaded for help, shot her twice as she struggled, then pushed her away and fled.
The jury reasonably could have concluded that defendant acted with malice
because he intentionally shot Yu twice at close range without provocation and
acted with an abandoned and malignant heart. The evidence easily is sufficient to
support defendant’s conviction of second degree murder for killing Yu.
7. Cumulative Error
Defendant argues that the cumulative effect of errors during the guilt phase
of the trial requires reversal of the judgment. As explained above, we discern no
error when defendant’s contentions are considered individually, and therefore find
no cumulative error.
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C.
Penalty Phase Issues
1. Conflict of Interest
As noted above, both the prosecution and the defense elected not to present
any additional evidence at the penalty phase. Defense counsel stated that he had
“done extensive work” interviewing potential witnesses in El Paso, Texas, and had
located “witnesses who are willing to come forth,” but the defense had made a
“tactical decision” not to present any additional evidence at the penalty phase.
Defendant personally waived his right to testify in his own behalf and stated that
he agreed with his counsel’s decision not to present any additional evidence at the
penalty phase. The court accepted defendant’s waiver.
Defendant does not contend on appeal that his waiver of his right to present
penalty phase evidence was invalid or resulted in error, although he indicates he
will raise such claims in a subsequent habeas corpus petition. Instead, echoing a
claim addressed above, defendant asserts he was denied due process of law under
the Sixth and Fourteenth Amendments to the federal Constitution and article I,
section 15 of the California Constitution because the trial court failed to inquire
into defense counsel’s possible conflicts of interest during the penalty phase.
Defendant asserts that “the trial court repeatedly was made aware of
counsel’s conflicts and difficulties in communicating with their client,” citing
instances in which either defendant failed to cooperate with his attorneys or his
attorneys failed to appear for trial. He fails, however, to explain how these
instances evince what he describes as “ongoing potential conflicts of interest
between appellant and trial counsel” that required an inquiry by the trial court.
Defendant, at one point in his opening brief, contends that his counsel’s
conflicts of interest with his family were the likely cause of his counsel’s tactical
decision not to present any mitigating evidence. Defendant admits, however, that
“[c]ounsel’s failure to present mitigating evidence on appellant’s behalf . . . was
83
not explained on the record.” Defendant offers no support for his assertion that
the “likely cause” of his attorneys’ decision not to present further evidence at the
penalty phase was a conflict of interest caused by his family, and we decline to
speculate.
As noted above (ante, at pp. 25-31), defense counsel in the present case
entered into a contract with both defendant and his family to represent defendant.
The trial court conducted an extensive and appropriate inquiry into defendant’s
awareness of the possibility of a conflict of interest, offered defendant separate
counsel to advise him, and obtained assurances from defense counsel that no such
conflicts existed or were likely to arise. No error appears.
2. Competency to Stand Trial
We concluded above that the court did not err in denying prior defense
counsel’s pretrial motion to appoint a psychiatrist to evaluate defendant’s mental
competency to stand trial, nor did it err in failing prior to trial to order a
competency hearing sua sponte. (Ante, at pp. 31-36.) Defendant claims that the
trial court erred in failing to order a competency hearing during the penalty phase
based upon additional “instances of appellant’s bizarre behavior during guilt trial
deliberations and on the occasion the jury returned its verdicts.” Defendant relies
upon his threats to disrupt and actual disruptions of trial proceedings, which
caused the trial court to permit defendant to absent himself from the trial and listen
to the proceedings in a holding cell. He also cites, as evidence of his “delusional
thinking and probable mental incompetence,” the following statement he made
just before the court imposed sentence: “As for what is said of my life, there have
been lies in the past and there will be lies in the future. I don’t believe in the
hypocritical moralistic dogma of this so-called society and need not look beyond
this room to see all the liars, the haters, the killers, the crooks, the paranoid
84
cowards, truly the trematodes[12] of the earth, each one in his own legal profession.
You maggots made me sick. Hypocrites one and all. We are all expendable for a
cause, and no one knows that better than those who kill for policy, clandestinely or
openly, as do the governments of the world which kill in the name of God and
country and for whatever else they deem appropriate. I don’t need to hear all of
society’s rationalizations. I’ve heard them all before and the fact remains that is
what it is. You don’t understand me. You are not expected to. You are not
capable of it. I am beyond your experience. I am beyond good and evil. Legions
of the night,[13] night breed, repeat not the errors of night prowler and show no
mercy. I will be avenged. Lucifer dwells within us all.”
As noted above (ante, at p. 33), section 1368 provides: “(a) If, during the
pendency of an action and prior to judgment, a doubt arises in the mind of the
judge as to the mental competence of the defendant, he or she shall state that doubt
in the record and inquire of the attorney for the defendant whether, in the opinion
of the attorney, the defendant is mentally competent. . . . [¶] (b) If counsel informs
the court that he or she believes the defendant is or may be mentally incompetent,
the court shall order that the question of the defendant’s mental competence is to
12
Trematodes are “parasitic worms, found in the bodies of various animals,
having a flattish or cylindrical form, with skin often perforated by pores, and
usually furnished with adhesive suckers.” (18 Oxford English Dict. (2d ed. 1989)
p. 476.)
13
The phrase “legions of the night” had been used in “heavy metal” rock
lyrics around that time. The song “Legions” by Savatage, released in 1987, calls
on the “legions of the night” to “To do our deeds.” (<http://www.savatage.com/
bandinfo/albums/hallofthemountainking/legions.html> [as of Aug. 7, 2006].)
Similarly, the band Testament released in 1987 a song entitled “Alone in the
Dark” that says that “Faustus prepares the legions of the night.”
(<http://www.darklyrics.
com/lyrics/testament/thelegacy.html#8> [as of Aug. 7, 2006].)
85
be determined in a hearing which is held pursuant to Sections 1368.1 and 1369.”
A trial court is required to conduct a competency hearing under section 1368 only
if “substantial evidence of incompetence is introduced.” (People v. Hayes, supra,
21 Cal.4th 1211, 1281.) “ ‘Substantial evidence is evidence that raises a
reasonable doubt about the defendant’s competence to stand trial.’ [Citation.]
Evidence . . . that does no more than form the basis for speculation regarding
possible current incompetence is not sufficient. [Citation.]” (Ibid.)
As also noted above (ante, at p. 34), defendant’s behavior did not raise a
question as to his ability to understand the nature of the proceedings or assist
counsel in his defense. “[M]ore is required to raise a doubt [as to a defendant’s
competence] than mere bizarre actions [citation] or bizarre statements [citation] or
statements of defense counsel that defendant is incapable of cooperating in his
defense [citation] or psychiatric testimony that defendant is immature, dangerous,
psychopathic, or homicidal or such diagnosis with little reference to defendant’s
ability to assist in his own defense [citation].” (People v. Laudermilk, supra, 67
Cal.2d 272, 285.)
Defendant has not made a showing that his mental condition resulted in an
inability to assist in his defense or to understand the proceedings. The trial court
did not err in failing to order a competency hearing sua sponte during the penalty
phase.
3. Absence of Mitigating Evidence
Defendant acknowledges that this court repeatedly has rejected the
contention that a defendant’s decision not to present mitigating evidence at the
penalty phase, in itself, renders the determination of penalty unreliable under the
federal and California Constitutions. (People v. Massie (1998) 19 Cal.4th 550,
570, and cases cited therein.) He argues nonetheless that “[e]volving due process
86
standards and requirements of reliability of the death sentencing procedure have
undermined the Court’s analysis in those cases.”
“We have repeatedly stressed . . . that a defense counsel’s failure to present
mitigating evidence at the penalty phase does not make the proceeding unreliable
in constitutional terms so long as (1) the prosecution has discharged its burden of
proof at both phases of trial consistently with the rules of evidence and a
constitutionally sound death penalty scheme; (2) the death verdict was rendered in
accordance with proper instructions and procedures; and (3) the penalty jury
considered the relevant mitigating evidence, if any, that the defendant has chosen
to introduce. [Citations.]” (People v. Lewis, supra, 25 Cal.4th 610, 676; People v.
Blair (2005) 36 Cal.4th 686, 737.) Defendant has presented no persuasive reason
to reconsider our previous holdings.
4. CALJIC No. 8.85
Defendant claims he was denied his right to a reliable penalty
determination under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the
federal Constitution, because the trial court erred in instructing the jury in
accordance with CALJIC No. 8.85,14 which quotes the aggravating and mitigating
14
The jury was instructed:
“In determining which penalty is to be imposed on the defendant, you shall
consider all of the evidence which has been received during any part of the trial of
this case, except as you may be hereafter instructed. You shall consider, take into
account and be guided by the following factors, if applicable:
“(a) The circumstances of the crimes of which the defendant was convicted
in the present proceeding and the existence of any special circumstances found to
be true.
“(b) The presence or absence of criminal activity by the defendant, other
than the crimes for which the defendant has been tried in the present proceedings,
which involved the use or attempted use of force or violence or the express or
(Footnote continued on next page.)
87
factors identified in section 190.3 the jury shall consider, if relevant, in
determining the proper penalty, because the court did not delete references to
mitigating factors for which no evidence was introduced. According to defendant,
this led the jury to “treat the absence of mitigation as aggravation.” If defendant
believed the pattern instruction “was unclear, he had the obligation to request
clarifying language.” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1192.) In any
(Footnote continued from previous page.)
implied threat to use force or violence or the express or implied threat to use force
or violence.
“(c) The presence or absence of any prior felony conviction, other than the
crimes for which the defendant has been tried in the present proceedings.
“(d) Whether or not the offense was committed while the defendant was
under the influence of extreme mental or emotional disturbance.
“(e) Whether or not the victim was a participant in the defendant’s
homicidal conduct or consented to the homicidal act.
“(f) Whether or not the offense was committed under circumstances which
the defendant reasonably believed to be a moral justification or extenuation for his
conduct.
“(g) Whether or not the defendant acted under extreme duress or under the
substantial domination of another person.
“(h) Whether or not at the time of the offenses the capacity of the defendant
to appreciate the criminality of his conduct or to conform his conduct to the
requirements of law was impaired as a result of mental disease or defect or the
effects of intoxication.
“(i) The age of the defendant at the time of the crime.
“(j) Whether or not the defendant was an accomplice to the offense and his
participation in the commission of the offense was relatively minor.
“(k) Any other circumstance which extenuates the gravity of the crime even
though it is not a legal excuse for the crime and any sympathetic or other aspect of
the defendant’s character or record as a basis for a sentence less than death,
whether or not related to the offense for which he is on trial.”
88
event, we repeatedly have held that instructions in the language of CALJIC No.
8.85 do not violate the Eighth and Fourteenth Amendments by failing to delete
inapplicable sentencing factors or delineate between aggravating and mitigating
circumstances. (People v. Schmeck (2005) 37 Cal.4th 240, 305; People v. Box
(2000) 23 Cal.4th 1153, 1217.)
5. Special Jury Instructions
Defendant proposed 10 special jury instructions during the penalty phase.
The trial court gave one of the proposed instructions, refused five of them, and
defendant withdrew the remaining four. Defendant contends that the trial court
erred in denying his request for four of the refused instructions and two that he
withdrew, in violation of his rights under the Fifth, Sixth, Eighth, and Fourteenth
Amendments to the federal Constitution.
a. Sympathy
Defendant requested a special instruction regarding sympathy:
“In the guilt phase of this case, you were instructed that you should not
base your verdict on various irrelevant matters, including sympathy.
“You are now instructed that sympathy does play a legitimate part in
determination of whether a defendant shall suffer death, or be imprisoned for life
without the possibility of parole.
“If after consideration of all the circumstances, you feel sympathy for the
defendant that is based on the evidence you have heard, and based on such
sympathy you are inclined to extend mercy to the defendant, the law permits you
to act upon such sympathy and fix the penalty at life imprisonment without the
possibility of parole.”
The court refused to give this instruction because it is argumentative.
89
The court instructed the jury that in determining the proper penalty it
should disregard the instructions given at the guilt phase of the trial and consider
“any sympathetic or other aspect of the defendant’s character or record,” adding
again, “You must disregard any jury instruction given to you in the guilt or
innocence phase of this trial which conflicts with this principle.” The jurors
further were instructed that they were “free to assign whatever moral or
sympathetic value you deem appropriate to each and all of the various factors you
are permitted to consider.”
90
“We have suggested that ‘in appropriate circumstances’ a trial court may be
required to give a requested jury instruction that pinpoints a defense theory of the
case . . . . But a trial court need not give a pinpoint instruction if it is
argumentative [citation] [or] merely duplicates other instructions [citation] . . . .”
(People v. Bolden, supra, 29 Cal.4th 515, 558.) We agree with the trial court that
defendant’s requested special instruction on sympathy was argumentative and, in
any event, the proposed instruction properly was denied because it duplicated
other of the court’s instructions.
b. Mitigating Evidence
Defendant also requested two special instructions regarding mitigating
factors. One stated: “The weight to be given to the factors in aggravation and
mitigation is a matter for each juror to determine. Each juror must assign the
factors present in this case whatever weight the juror finds to be appropriate. For
this reason, one mitigating factor can sometimes outweigh a number of
aggravating factors in a particular case. No juror is ever required to vote to
impose the penalty of death if the juror is not convinced that death is the
appropriate penalty under the circumstances shown by the evidence.” The court
denied this instruction as duplicative and argumentative.
The other requested instruction on mitigating factors stated: “With regard
to factors in mitigation, offered by the defendant as reasons to impose a sentence
[of life imprisonment without parole] [less than death], each juror must make his
or her own individual assessment of the weight to be given to such evidence.
There is no requirement that all jurors unanimously agree on any matter offered in
mitigation. Each juror makes an individual evaluation of each fact or
circumstance offered in mitigation of penalty. Each juror should weigh and
91
consider such matters regardless of whether or not they are accepted by other
jurors.” The court refused this instruction as argumentative and duplicative.
The court instructed the jury that “[t]he weighing of aggravating and
mitigating circumstances does not mean a mere mechanical counting of factors on
each side of an imaginary scale, or the arbitrary assignment of weights to any of
them. You are free to assign whatever moral or sympathetic value you deem
appropriate to each and all of the various factors you are permitted to consider. In
weighing the various circumstances you determine under the relevant evidence
which penalty is justified and appropriate by considering the totality of the
aggravating circumstances with the totality of the mitigating circumstances. To
return a judgment of death, each of you must be persuaded that the aggravating
circumstances are so substantial in comparison with the mitigating circumstances
that it warrants death instead of life without parole.” We need not, and do not,
decide whether the trial court was correct that these proposed special instructions
on mitigating factors were argumentative because, in any event, the trial court
properly denied the requested instructions because they duplicated the court’s
instructions.
c. Aggravating Factors
Defendant further asked the court to instruct the jury that the list of
aggravating factors is exclusive: “I have previously read to you the list of
aggravating circumstances which the law permits you to consider if you find that
any of them is established by the evidence. These are the only aggravating
circumstances that you may consider. You are not allowed to take account of any
other facts or circumstances as the basis for deciding that the death penalty would
be appropriate punishment in this case.” The court refused the instruction, stating
it saw no reason to give it.
92
In addition to reading the list of factors set forth in section 190.3 and
recounted in CALJIC No. 8.85 that the jury should consider in determining the
penalty, the court instructed the jury that “[a]n aggravating factor is any fact,
condition or event attending the commission of a crime which increases its guilt or
enormity, or adds to its injurious consequences which is above and beyond the
elements of the crime itself.”
We previously have rejected the argument that the court must instruct the
jury that it cannot consider nonstatutory aggravating evidence. “The court gave
the standard sentencing instruction (see CALJIC No. 8.85), and we have held that
instruction is proper despite its failure expressly to limit aggravating evidence to
the enumerated statutory factors, and to exclude nonstatutory factors as a basis for
the death penalty. [Citation.]” (People v. Taylor (2001) 26 Cal.4th 1155, 1180;
People v. Earp (1999) 20 Cal.4th 826, 899.)
d. Defendant’s Age
Defendant requested the following jury instruction: “One of the factors for
you to consider in determining the penalty is the age of the defendant at the time
of the offense(s). Chronological age, by itself, is a matter over which the
defendant has no control, and which is not relevant to the choice of penalty.
However, the factor relating to ‘defendant’s age,’ as set forth in these instructions,
refers to any matter concerning defendant’s age, maturity, and judgment which
common experience or morality might indicate to be relevant to the issue of
penalty. You shall therefore give any age-related factors and argument
consideration in arriving at a judgment as to penalty.”
Defendant later withdrew this instruction:
“The Court: I do not believe . . . that this instruction is pertinent to any
evidence that I’ve heard in this case.
93
“[Defense Counsel]: Withdraw this one.
“The Court: All right.”
The court later instructed the jury that in determining the penalty it should
consider “The age of the defendant at the time of the crime.” Defendant was 24
years old at the time of the first charged crime.
Defendant argues that trial counsel withdrew the requested instruction
“only in response to the court’s request,” adding that trial counsel “obeyed the
court and withdrew the instruction.” But the court did not order, or even ask, trial
counsel to withdraw the request, it merely observed that the proposed instruction
did not appear to pertain to any evidence introduced at trial. Rather than explain
why the proposed instruction was proper and request a ruling, trial counsel simply
withdrew the proposed instruction. In order to preserve an issue for review, a
defendant must not only request the court to act, but must press for a ruling. The
failure to do so forfeits the claim. (People v. Braxton (2004) 34 Cal.4th 798, 813;
see also People v. Anderson (2001) 25 Cal.4th 543, 599, fn. 19.)
Even had defendant properly preserved the issue for appeal, the claim lacks
merit because the instruction given as to age was sufficient. Defendant argues that
merely instructing to jury to consider “[t]he age of the defendant at the time of the
crime” does not provide adequate guidance as to how the jury should apply age to
the penalty determination. Defendant cites People v. Lucky (1988) 45 Cal.3d 259,
302, in which we held that age cannot be solely a mitigating factor and observed
that “the word ‘age’ in statutory sentencing factor (i) is used as a metonym for any
age-related matter suggested by the evidence or by common experience or
morality that might reasonably inform the choice of penalty. Accordingly, either
counsel may argue any such age-related inference in every case.” (Ibid.)
94
As the trial court correctly observed, no “age-related matter” was suggested
by the evidence in this case. (Cf. People v. Smithey (1999) 20 Cal.4th 936, 1004
[mental age a mitigating factor].) Accordingly, the court’s instruction to consider
defendant’s age, without further elaboration, was sufficient in this case.
e. Life Without Parole
Defendant submitted the following proposed jury instruction: “Statements
by some jurors during jury selection showed an awareness of news reports
concerning other cases where sentences of death were not carried out for legal
reasons or where persons sentenced to life imprisonment have been considered for
parole. Under the 1978 Death Penalty Law, which governs this case, the only
possible penalties are death or life imprisonment without the possibility of parole.
In the past, other cases were decided under other laws which are no longer in
effect. You must not consider other cases or news reports, or speculate about
actions for other authorities in arriving at a penalty verdict in this case. Those are
matters that must not affect your verdict.”
Defendant later withdrew this instruction:
“The Court: . . . I think this is an area that I would not and in fact I am
bound not to bring forth unless the jury itself raises the question during their
deliberations. I think to give this instruction would be error and I’m going to ask
you to withdraw it.
“[Defense Counsel]: Withdrawn.
“The Court: Thank you.”
95
Defendant contends that trial counsel withdrew the requested instruction
“only in response to the court’s request,” adding that trial counsel “obeyed the
court and withdrew the instruction.” But the court did not order trial counsel to
withdraw the request, it merely asked him to do so after explaining why the court
concluded the proposed instruction was improper. Trial counsel could have
respectfully disagreed and asked the court to rule on his request but, instead,
withdrew the proposed instruction, thus forfeiting this issue. (People v. Braxton,
supra, 34 Cal.4th 798, 813.)
In any event, the proposed instruction was improper. As defendant
acknowledges, we repeatedly have rejected the claim that the court should instruct
the jury that a sentence of death means the defendant definitely will be executed
and a sentence of life in prison without parole means the defendant never will be
paroled because such an instruction would be inaccurate. “The Governor may
ameliorate any sentence by use of the commutation or pardon power . . . .”
(People v. Arias, supra, 13 Cal.4th 92, 172; People v. Ward (2005) 36 Cal.4th
186, 220.) “We have further determined that refusal to so instruct does not
contravene any constitutional requirement. [Citation.]” (People v. Ward, supra,
36 Cal.4th at p. 220.)
6. CALJIC No. 8.84.1
Defendant contends he was denied his right to due process and to a reliable
determination of penalty under the Eighth and Fourteenth Amendments to the
federal Constitution because the court instructed the jury in accordance with
CALJIC No. 8.84.1 that it “must determine what the facts are from the evidence
received during the entire trial unless you are instructed otherwise.” Defendant
argues that this instruction erroneously permitted the jury to consider aggravating
factors not listed in section 190.3.
96
The instruction was proper: “The evidence introduced by the prosecution
at the guilt phase of defendant[’s] trial was relevant to prove defendant [ ] guilty of
the murders charged in this case. So long as it considered the evidence offered at
the guilt phase of trial solely for this purpose, the jury was entitled to take into
account all of the evidence offered at the guilt phase as part of the ‘circumstances
of the crime,’ an aggravating factor that the jury may consider in its penalty
deliberations. (§ 190.3, factor (a).) Therefore, the trial court did not err when it
instructed the jury that it could consider guilt phase evidence in its penalty
deliberations.” (People v. Champion (1995) 9 Cal.4th 879, 946-947; People v.
Harris (2005) 37 Cal.4th 310, 359.)
We recognized in Champion that it is possible the jury might improperly
consider at the penalty phase evidence introduced at the guilt phase to show bad
character. The court, however, has no sua sponte duty to instruct the jury not to do
so. (People v. Champion, supra, 9 Cal.4th 879, 947.) In the present case,
defendant did not request such a limiting instruction. Defendant did ask the court
to instruct the jury that the list of aggravating factors is exclusive, but, as discussed
above, the court properly refused to so instruct the jury. (Ante, at pp. 91-92.) This
proposed instruction, moreover, would not have prevented the jury from
considering evidence introduced at the guilt phase for an improper purpose, such
as to show defendant’s bad character.
7. Impact of Guilt Phase Errors
Defendant argues that the effect of numerous errors committed during the
guilt phase of the trial rendered the penalty determination unreliable. This
argument is based upon a faulty premise. As discussed above, defendant has
failed to show any errors occurred during the guilt phase of his trial.
97
8. Burden of Proof
Defendant contends the trial court erred in failing to instruct the jury that it
must determine the proper penalty beyond a reasonable doubt. As defendant
recognizes, we have repeatedly rejected this contention. “Contrary to defendant’s
contention, ‘[t]he death penalty is not unconstitutional for failing to impose a
burden of proof—whether beyond a reasonable doubt or by a preponderance of the
evidence—as to the existence of aggravating circumstances, the greater weight of
aggravating circumstances over mitigating circumstances, or the appropriateness
of a death sentence.’ [Citation.] Nor, contrary to defendant’s claim, do the high
court’s decisions 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, alter this
conclusion . . . .” (People v. Cornwell (2005) 37 Cal.4th 50, 103, 104.)
9. Double-counting Special Circumstances
The court instructed the jury, pursuant to CALJIC No. 8.85, that it could
consider under section 190.3, factor (a), the circumstances of the crime and the
existence of any special circumstances, and could consider under factor (b)
criminal activity other than the crimes charged in the present case. Defendant
argues that these instructions, coupled with the prosecutor’s argument that the jury
should consider “each of these murders in turn, the first degree murders, and each
of the special circumstances in turn, and make a decision on each one,”
impermissibly invited the jury to “double-count” the special circumstances in
violation of our decision in People v. Melton (1988) 44 Cal.3d 713, 768-769. He
further contends that these instructions and argument rendered the penalty
determination unreliable, in violation of the Eighth and Fourteenth Amendments
to the federal Constitution.
In People v. Melton, supra, 44 Cal.3d 713, 768, we recognized a
“theoretical problem” in section 190.3, factor (a), because it directs the jury to
98
consider both the “circumstances of the crimes” and “the existence of any special
circumstances.” We noted: “Since the latter are a subset of the former, a jury
given no clarifying instructions might conceivably double-count any
‘circumstances’ which were also ‘special circumstances.’ On defendant’s request,
the trial court should admonish the jury not to do so.” We were quick to point out,
however, that “the possibility of actual prejudice seems remote . . . .” (Ibid.)
Defendant did not request an instruction admonishing the jury not to
double-count the special circumstances, and we repeatedly have held that the trial
court has no duty to so instruct the jury sua sponte. (People v. Young (2005) 34
Cal.4th 1149, 1225; People v. Barnett (1998) 17 Cal.4th 1044, 1180; People v.
Cain (1995) 10 Cal.4th 1, 68.)
Defendant asserts that the prosecutor in closing argument “in effect told the
jury to double-count the special circumstances.” To the contrary, the prosecutor
expressly told the jury not to do so. After quoting the pertinent language from
section 190.3, factor (a), as reflected in CALJIC No. 8.85, the prosecutor told the
jury: “You may consider those crimes [of which defendant was convicted] in
aggravation in determining penalty in this case only once; you can’t consider them
in section a and section b. You can consider them only once.”
10. Lack of Specific Findings Regarding Aggravating Factors
Defendant maintains that the trial court’s failure to require the jury to make
findings regarding which aggravating factors it relied upon precluded meaningful
appellate review in violation of the Fifth, Sixth, Eighth, and Fourteenth
Amendments to the federal Constitution and deprived him of equal protection of
the laws under the Fourteenth Amendment. As defendant acknowledges, we
previously have rejected this contention. (People v. Gray (2005) 37 Cal.4th 168,
236; People v. Vieira (2005) 35 Cal.4th 264, 303.)
99
11. Triple Use of Facts
Defendant argues the death penalty statute in effect at the time of
defendant’s trial permitted “capricious infliction of punishment under the Fifth,
Sixth, Eighth, and Fourteenth Amendments” to the federal Constitution because it
permitted the jury to consider the same facts in determining defendant’s guilt of
the charged offenses, the truth of the special circumstance allegations, and the
proper penalty. We repeatedly have upheld such “triple use” of the same facts.
(People v. Smith (2003) 30 Cal.4th 581, 641; People v. Marshall (1990) 50 Cal.3d
907.)
12. Prosecutorial Discretion
Defendant argues that granting prosecutors “virtually unfettered discretion”
to decide whether to seek the death penalty violates the Fifth, Eighth, and
Fourteenth Amendments to the federal Constitution. As defendant recognizes, we
repeatedly have rejected this claim. (People v. Gray, supra, 37 Cal.4th 168, 237;
People v. Martinez (2003) 31 Cal.4th 673, 703.)
13. Failure to Narrow Class of Death-eligible Defendants
Defendant contends that the death penalty statute applicable in this case
failed to meaningfully narrow the class of defendants eligible for the death penalty
in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal
Constitution. Defendant correctly observes that we repeatedly have rejected this
contention. (People v. Gray, supra, 37 Cal.4th 168, 237.)
14. Cumulative Error
Defendant argues that the cumulative effect of errors in the guilt and
penalty phases of the trial requires reversal of the judgment. As explained above,
reversal of the judgment is not required because there were no significant errors in
defendant’s trial.
100
15. Order of Sentences
Defendant maintains that he was deprived of his rights under the Eighth
and Fourteenth Amendments to the federal Constitution because the trial court
ordered that his determinate sentence of more than 59 years be served after
execution of the death sentence. On November 7, 1989, the trial court sentenced
defendant to death on his 12 convictions for first degree murder with special
circumstances and a term of 59 years and 4 months on his 11 convictions of
noncapital crimes. The court denied the prosecutor’s request to stay the
determinate sentence pending execution of the death sentence, but ordered that the
determinate sentence be served after the death sentence was imposed. On
November 15, 1989, the court modified the sentence nunc pro tunc to add: “The
sentences on the noncapital counts are ordered to be consecutive to, and to be
served subsequent to, and only upon completion of, the death sentences
enumerated above . . . .”
Citing our decision in People v. Price (1991) 1 Cal.4th 324, defendant
asserts that “[w]hen a greater sentence is imposed upon a defendant, the lesser
sentence must be stayed pursuant to the bar against multiple punishment under
section 654.” This is an overstatement. Section 654 bars multiple punishment for
a single “act or omission.” “Although it ‘literally applies only where such
punishment arises out of multiple statutory violations produced by the “same act
or omission,” ’ we have extended its protection ‘to cases in which there are several
offenses committed during “a course of conduct deemed to be indivisible in time.”
[Citation.]’[Citation.]” (People v. Oates (2004) 32 Cal.4th 1048, 1062.) In the
present case, the determinate sentences were imposed for crimes that were
committed separately from, or involved victims other than, the murders for which
defendant was sentenced to death. Section 654 does not, therefore, preclude
imposition of both the determinate sentences and the death sentences.
101
Defendant relies upon section 669, which states, in pertinent part:
“Whenever a person is committed to prison on a life sentence which is ordered to
run consecutive to any determinate term of imprisonment, the determinate term of
imprisonment shall be served first . . . .” Although recognizing that “the death
sentence imposed here was not a life term,” defendant argues that it “was the
functional equivalent of a life sentence in that appellant was sentenced to spend
the rest of his life in prison.”
By its terms, the portion of section 669 regarding imposition of a life
sentence does not apply to a sentence of death. Accepting defendant’s position
would further delay for decades the imposition of the death sentences. This would
be contrary to the declaration of legislative intent in section 190.6, subdivision (a),
“that the sentence in all capital cases should be imposed expeditiously.”
Accordingly, the trial court did not err in ordering the sentence of death be
imposed prior to imposition of the determinate sentence on defendant’s noncapital
crimes.
16. Methods of Execution
Defendant claims that the methods of execution of either lethal injection or,
at defendant’s election, the gas chamber, deprives him of due process, because the
state has failed to develop proper standards for the administration of lethal
injection, and both methods constitute cruel and unusual punishment in violation
of the Eighth and Fourteenth Amendment to the federal Constitution.
“As this court repeatedly has recognized, . . . such claims are not
cognizable on direct appeal, because ‘an imperfection in the method of execution
does not affect the validity of the judgment and is not a basis for reversal of the
judgment on appeal.’ [Citations.] On direct appeal, defendant is restricted to
claims ‘bear[ing] on the validity of the death sentence itself.’ [Citation.] His claim
102
regarding the existence or nonexistence of regulations that may or may not be in
effect when the judgment is to be carried out does not affect the validity of the
death sentence. In essence, defendant’s claim is premature. [Citation.]” (People v.
Cornwell, supra, 37 Cal.4th 50, 105-106.)
17. International Law
Defendant contends he “was denied both the right to a fair trial by an
independent tribunal and the right to the minimum guarantees for a criminal
defense under customary international law as informed by the Universal
Declaration of Human Rights, the International Covenant on Civil and Political
Rights (ICCPR), and the American Declaration of the Rights and Duties of Man
(American Declaration).” Defendant further asserts he “suffered racial
discrimination . . . which constituted violations of customary international law.”
This claim fails because, as explained above, defendant was not denied a
fair trial or subjected to racial discrimination. “To the extent defendant alleges
violations of the International Covenant on Civil and Political Rights, which he
alleges incorporates the Universal Declaration of Human Rights, his claim lacks
merit, even assuming he has standing to invoke this covenant. (People v. Turner
[(2004)] 34 Cal.4th at pp. 439-440; People v. Brown [(2004)] 33 Cal.4th at p. 404
[‘ “International law does not prohibit a sentence of death rendered in accordance
with state and federal constitutional and statutory requirements” ’].)” (People v.
Cornwell, supra, 37 Cal.4th 50, 106; People v. Harris, supra, 37 Cal.4th 310,
366.)
103
DISPOSITION
The judgment is affirmed.
MORENO, J.
WE CONCUR: GEORGE, C. J.
KENNARD,
J.
BAXTER,
J.
WERDEGAR,
J.
CHIN,
J.
CORRIGAN,
J.
104
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Ramirez
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S012944
Date Filed: August 7, 2006
__________________________________________________________________________________
Court: Superior
County: Los Angeles
Judge: Michael Anthony Tynan
__________________________________________________________________________________
Attorneys for Appellant:
Geraldine S. Russell and Nicholas C. Arguimbau, under appointments by the Supreme Court, for
Defendant and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C.
Hamanaka, Assistant Attorney General, John R. Gorey, Jeffrey B. Kahan and Margaret E. Maxwell,
Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Geraldine S. Russell
Post Office Box 2160
La Mesa, CA 91943-2160
(619) 589-5444
Margaret E. Maxwell
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
(213) 897-2285
Opinion Information
| Date: | Docket Number: |
| Mon, 08/07/2006 | S012944 |
Parties
| 1 | The People (Respondent) Represented by Attorney General - Los Angeles Office Margaret Maxwell, Supv. Deputy Attorney General 300 S. Spring Street, Suite 1702 Los Angeles, CA |
| 2 | Ramirez, Richard (Appellant) Represented by Geraldine S. Russell Attorney at Law P.O. Box 2160 La Mesa, CA |
| 3 | Ramirez, Richard (Appellant) Represented by Nicholas C. Arguimbau Attorney at Law 24 Kirk Road Warwick, MA |
| Disposition | |
| Aug 7 2006 | Opinion: Affirmed |
| Dockets | |
| Nov 7 1989 | Judgment of death |
| Nov 20 1989 | Filed certified copy of Judgment of Death Rendered 11-7-89 |
| Jan 4 1990 | Motion for appointment of counsel filed Appellant's pro per application for appointment of counsel (Daniel V. Hernandez). |
| Jan 17 1990 | Order filed: Appellant's application, filed January 4, 1990, for appointment of Daniel V. Hernandez as counsel on appeal is denied. |
| Nov 25 1992 | Counsel appointment order filed Geraldine S. Russell, Esq. is hereby appointed to represent appellant on his automatic appeal now pending in this court, including any related habeas proceedings. |
| Dec 14 1992 | Application for Extension of Time filed By Applt to request correction of Record. |
| Dec 17 1992 | Extension of Time application Granted To Applt To 2-22-93 To request Corr. of Record. |
| Feb 19 1993 | Application for Extension of Time filed By Applt to request correction of Record. |
| Feb 22 1993 | Extension of Time application Granted To Applt To 4-23-93 To request Corr. of Record. |
| Apr 22 1993 | Application for Extension of Time filed By Applt to request correction of Record. |
| Apr 27 1993 | Application for Extension of Time filed By Applt to request Corr. of Record (w/Suppl Decl. of Counsel in support of Request) |
| Apr 29 1993 | Extension of Time application Granted To Applt To 6-22-93 To request Corr. of Record. |
| Jun 7 1993 | Compensation awarded counsel |
| Jun 18 1993 | Application for Extension of Time filed By Applt to request correction of Record. |
| Jun 22 1993 | Extension of Time application Granted To Applt To 8-23-93 To request Corr. of Record. |
| Jul 8 1993 | Motion for appointment of counsel filed Appellant's request for appointment of associate counsel (Nicholas C. Arguimbau, Esq.) |
| Jul 9 1993 | Counsel appointment order filed The request of appellant for appointment of associate counsel is granted. Nicholas C. Arguimbau, Esq., is hereby appointed as associate counsel to represent appellant Richard Ramirez on his automatic appeal now pending in this court, including any related habeas corpus proceedings. |
| Jul 28 1993 | Compensation awarded counsel |
| Aug 12 1993 | Application for Extension of Time filed By Applt to request correction of Record. |
| Aug 13 1993 | Extension of Time application Granted To Applt To 10-22-93 To request Corr. of Record. |
| Sep 9 1993 | Compensation awarded counsel |
| Oct 21 1993 | Application for Extension of Time filed By Applt to request correction of Record. |
| Oct 21 1993 | Extension of Time application Granted To Applt To 12-21-93 To request Corr. of Record. |
| Nov 10 1993 | Compensation awarded counsel |
| Dec 9 1993 | Compensation awarded counsel |
| Dec 21 1993 | Application for Extension of Time filed By Applt to request correction of Record. |
| Dec 22 1993 | Extension of Time application Granted To Applt To 2-22-94 To request Corr. of Record. |
| Feb 14 1994 | Application for Extension of Time filed By Applt to request correction of Record. |
| Feb 28 1994 | Filed: Suppl Declaration of Counsel in support of request for Ext. of time to request correction of Record. |
| Mar 2 1994 | Extension of Time application Granted To Applt To 5-9-94 To request Corr. of Record. |
| Mar 11 1994 | Change of Address filed for: Assoc. Counsel Nicholas Arguimbau. |
| Mar 16 1994 | Compensation awarded counsel |
| Mar 17 1994 | Compensation awarded counsel |
| May 9 1994 | Application for Extension of Time filed By Applt to request correction of Record. |
| May 10 1994 | Extension of Time application Granted To Applt To 7-8-94 To request Corr. of Record. no further Extensions of time Are Contemplated. |
| May 12 1994 | Compensation awarded counsel |
| Jun 23 1994 | Application for Extension of Time filed By Applt to request correction of Record. |
| Jun 24 1994 | Extension of Time application Granted To Applt To 9-6-94 To request Corr. of Record. |
| Jul 13 1994 | Compensation awarded counsel |
| Jul 27 1994 | Compensation awarded counsel |
| Sep 6 1994 | Received: Copy of Applt's "Initial" request for correction of Record (143 Pp. -- requested corrections Only; no request for Augmentation or Settlement) |
| Sep 21 1994 | Compensation awarded counsel |
| Oct 13 1994 | Compensation awarded counsel |
| Nov 2 1994 | Compensation awarded counsel |
| Feb 8 1995 | Compensation awarded counsel |
| May 10 1995 | Compensation awarded counsel |
| Jun 14 1995 | Compensation awarded counsel |
| Aug 23 1995 | Compensation awarded counsel |
| Oct 5 1995 | Compensation awarded counsel |
| Nov 13 1995 | Compensation awarded counsel |
| Mar 20 1996 | Change of Address filed for: For Atty Arguimbau |
| Mar 28 1996 | Compensation awarded counsel |
| Apr 10 1996 | Compensation awarded counsel |
| Dec 9 1996 | Change of Address filed for: Atty Geraldine Russell. |
| Apr 16 1997 | Compensation awarded counsel |
| Sep 17 1997 | Compensation awarded counsel |
| Jun 17 1998 | Compensation awarded counsel |
| Aug 7 1998 | Compensation awarded counsel |
| Jan 21 1999 | Compensation awarded counsel |
| Sep 9 1999 | Compensation awarded counsel |
| Oct 4 1999 | Record on appeal filed C-88 (23,671 Pp) and R-247 (24,654) Including Material Under Seal; Clerk's Transcript includes 4,918 pages of Juror Questionnaires. |
| Oct 4 1999 | Appellant's opening brief letter sent, due: 11/15/99 |
| Oct 15 1999 | Compensation awarded counsel |
| Nov 4 1999 | Compensation awarded counsel |
| Nov 5 1999 | Change of Address filed for: Atty Nicholas Arguimbau |
| Nov 12 1999 | Application for Extension of Time filed To file Aob. |
| Nov 18 1999 | Extension of Time application Granted To 1/14/2000 To file Aob. |
| Jan 7 2000 | Compensation awarded counsel Atty Russell |
| Jan 7 2000 | Application for Extension of Time filed To file Aob. |
| Jan 12 2000 | Extension of Time application Granted To 3/14/2000 To file Aob. |
| Jan 31 2000 | Change of Address filed for: Atty Geraldine Russell |
| Feb 14 2000 | Marsden motion filed Appellant's Marsden motion. |
| Feb 23 2000 | Marsden motion denied Appellant's motion to relieve appointed counsel Geraldine S. Russell and appoint new counsel in her place, filed on 2/14/2000, is denied. |
| Mar 8 2000 | Application for Extension of Time filed To file Aob. |
| Mar 15 2000 | Extension of Time application Granted To 5/15/2000 To file Aob. |
| May 9 2000 | Application for Extension of Time filed To file Aob. |
| May 12 2000 | Extension of Time application Granted To 7/14/2000 To file Aob. |
| Jul 7 2000 | Application for Extension of Time filed To file AOB. |
| Jul 12 2000 | Extension of Time application Granted To 9/12/2000 to file AOB. |
| Aug 1 2000 | Counsel's status report received (confidential) |
| Aug 22 2000 | Compensation awarded counsel Atty Russell |
| Sep 8 2000 | Application for Extension of Time filed To file AOB. (6th request) |
| Sep 12 2000 | Extension of Time application Granted To 11/13/2000 to file AOB. |
| Oct 2 2000 | Counsel's status report received (confidential) |
| Nov 3 2000 | Application for Extension of Time filed To file AOB. (7th request) |
| Nov 8 2000 | Extension of Time application Granted To 1/12/2001 to file AOB. |
| Dec 1 2000 | Counsel's status report received (confidential) |
| Dec 8 2000 | Compensation awarded counsel Atty Russell |
| Jan 2 2001 | Application for Extension of Time filed To file AOB. (8th request) |
| Jan 8 2001 | Extension of Time application Granted To 3/13/2001 to file AOB. |
| Feb 2 2001 | Counsel's status report received (confidential) |
| Mar 2 2001 | Application for Extension of Time filed To file AOB (9th request) |
| Mar 7 2001 | Extension of Time application Granted To 5/14/2001 to file AOB. No further extensions of time contemplated. |
| Mar 28 2001 | Compensation awarded counsel Atty Russell |
| Mar 28 2001 | Counsel's status report received (confidential) |
| May 4 2001 | Application for Extension of Time filed To file AOB. (10th request) |
| May 8 2001 | Extension of Time application Granted To 7/13/2001 to file AOB. No further extensions of time will be granted. |
| May 23 2001 | Counsel's status report received (confidential) |
| Jul 2 2001 | Application for Extension of Time filed to file AOB. (11th request) |
| Jul 9 2001 | Extension of Time application Denied To file AOB. |
| Jul 27 2001 | Counsel's status report received (confidential) |
| Aug 8 2001 | Compensation awarded counsel Atty Russell |
| Oct 1 2001 | Counsel's status report received (confidential) |
| Nov 30 2001 | Counsel's status report received (confidential) |
| Dec 4 2001 | Motion to augment AA record filed and supporting declaration. |
| Dec 7 2001 | Opposition filed by resp to request to augment the record on appeal. |
| Jan 2 2002 | Filed: resp's withdrawal of oppostition to request to augment the record on appeal. |
| Feb 1 2002 | Counsel's status report received (confidential) |
| Feb 13 2002 | Record augmentation granted In light of the fact that the Attorney General has withdrawn its opposition to appellant's request to augment the record on appeal, and has provided a declaration authenticating the documents in question, appellant's motion to augment the record on appeal to include the felony complaint dated September 3, 1985, and the Notice of Motion and Motion to Challenge the Composition of Los Angeles County Superior Court Central District Juries and to Quash All Existing Jury Panels filed in People v. Richard Ramirez, Los Angeles Superior Court case number A771272 is granted. |
| Feb 28 2002 | Filed: Declaration of counsel re: fixed fee (confidential). |
| Feb 28 2002 | Application for relief from default filed to file AOB. |
| Feb 28 2002 | Application to file over-length brief filed to file AOB. (413 pp. AOB submitted under separate cover) |
| Mar 1 2002 | Order filed Applt.'s request for relief from default and application to file over-length AOB is granted. |
| Mar 1 2002 | Appellant's opening brief filed (413 pp.) |
| Mar 6 2002 | Compensation awarded counsel Atty Russell |
| Mar 20 2002 | Filed letter from: Applt. re two paragraphs inadvertenly omitted from Argument VI in AOB. |
| Mar 26 2002 | Request for extension of time filed to file resp's brief. (1st request) |
| Mar 28 2002 | Extension of time granted to 6-3-2002 to file resp's brief. |
| Apr 2 2002 | Counsel's status report received (confidential) |
| Apr 16 2002 | Motion for access to sealed record filed Respondent's Motion for access to sealed transcripts. |
| Apr 25 2002 | Filed: Notice of errata to resp.'s motion for access to sealed transcripts. |
| Apr 30 2002 | Opposition filed by applt., to resp.'s motion for access to sealed transcripts. |
| May 21 2002 | Counsel's status report received (confidential) |
| May 24 2002 | Request for extension of time filed to file resp's brief. (2nd. request) |
| Jun 3 2002 | Extension of time granted To 8/2/2002 to file resp.'s brief. Dep. Atty. Gen. Kahan anticipates filing that brief by 9/30/2002. Only one further extension totaling 59 additional days is contemplated. |
| Jul 26 2002 | Change of Address filed for: Associate counsel, Nicholas C. Arguimbau. |
| Jul 29 2002 | Counsel's status report received (confidential) |
| Jul 31 2002 | Request for extension of time filed to file resp's brief. (3rd. request) |
| Jul 31 2002 | Application filed to: file resp's. brief in excess of 280 pages. |
| Aug 5 2002 | Extension of time granted To 9/30/2002 to file respondent's brief. After that date, no further extension is contemplated. Extension is granted based upon representation of Deputy Attorney General Jeffrey B. Kahan that he anticipates filing that brief by 8/9/2002. |
| Aug 5 2002 | Filed: Supplemantal certificate of service of change of address for associate counsel, Nicholas C. Arguimbau. |
| Aug 7 2002 | Order filed Respondent's application to file respondent's brief in excess of 280 pages is granted. |
| Aug 8 2002 | Respondent's brief filed (338 pp.] |
| Aug 8 2002 | Request for judicial notice filed (in AA proceeding) by respondent. |
| Aug 21 2002 | Request for extension of time filed to file reply brief. (1st request) |
| Aug 23 2002 | Extension of time granted to 10-28-2002 to file reply brief. The court anticipates that after that date, only five further extensions totaling 300 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 this schedule. |
| Sep 20 2002 | Opposition filed By appellant, to motion requesting judicial notice be taken. |
| Oct 3 2002 | Counsel's status report received (confidential) |
| Oct 17 2002 | Request for extension of time filed To file appellant's reply brief. (2nd request) |
| Oct 23 2002 | Extension of time granted To 12/27/2002 to file appellant's reply brief. The court anticipates that after that date, only four further extensions totaling 240 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. |
| Dec 2 2002 | Counsel's status report received (confidential) |
| Jan 2 2003 | Request for extension of time filed to file appellant's reply brief. (3rd request) |
| Jan 7 2003 | Extension of time granted To 2/25/2003 to file appellant's reply brief. The court anticipates that after that date, only three further extensions totaling 180 additionald 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. |
| Jan 13 2003 | Compensation awarded counsel Atty Russell |
| Jan 31 2003 | Counsel's status report received (confidential) |
| Feb 18 2003 | Request for extension of time filed to file appellant's reply brief. (4th request) |
| Feb 20 2003 | Extension of time granted to 4-28-2003 to file reply brief. 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 of any separate counsel of record, of this schedule, and to take all steps necessary to meet it. |
| Mar 27 2003 | Counsel's status report received (confidential) |
| Apr 8 2003 | Request for extension of time filed to file appellant's reply brief. (5th request) |
| Apr 10 2003 | Request for extension of time filed to 6/27/2003 to file appellant's reply brief. The court anticipates that after that date, only one further extension totaling 60 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. |
| May 7 2003 | Compensation awarded counsel Atty Russell |
| Jun 2 2003 | Counsel's status report received (confidential) |
| Jun 6 2003 | Letter sent to: counsel advising that the court is considering whether to unseal, on its own motion, the documents that are the subject of respondent's "Motion for Access to Seal Transcripts," filed on 4-16-2002. (See Cal. Rules of Court, rule 12.5(f)(2).) The court invites counsel to serve and file a response, if they wish, on or before June 16, 2003, addressing whether any of the documents in question is "required to be kept confidential by law" (Cal. Rules of Court, rule 12.5(a)), and if not, whether "(1) [t]here exists an overriding interest that overcomes the right of public access"; (2) [t]he overriding interest supports [continued] sealing"; "(3) [a] substantial probability exists that the overriding interest will be prejudiced" in the absence of continued sealing;" "(4) [t]he proposed [continued] sealing is narrowly tailored"; and "(5) [n]o less restrictive means exist to achieve the overriding interest" (id., rule 243.1(d). |
| Jun 10 2003 | Request for extension of time filed to file appellant's reply brief. (6th request) |
| Jun 13 2003 | Extension of time granted to 8-25-2003 to file reply brief. The court anticipates that after that date, only one further extension totaling 60 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. |
| Jun 13 2003 | Filed letter from: respondent in response to court's letter of 6-6-2003. |
| Jun 16 2003 | Filed letter from: appellant, dated 6-13-2003, in response to court's letter of 6-6-2003. |
| Jun 19 2003 | Motion for access to sealed record granted Respondent's "Motion for Access to Sealed Transcripts" is granted. The Clerk is directed to provide respondent with a copies of (1) the reporter's transcript of the in-camera hearing on January 6, 1987 in Department 111 before Judge Dion Morrow, pp. 733-737; (2) the reporter's transcript of the in-camera hearings on October 22, 1985 in Division 54 before Judge Elva Soper, pp. 2-26 and pp. 30-53; (3) 2 Supp CT vol. 8, pp. 2280-2286; (4) 2 Supp CT vol. 7, pp. 2131-2151; and (4) 2 Supp CT 8, pp. 2432-2438. On the court's own motion, the clerk is further directed to unseal (1) the reporter's transcript of the in-camera hearing on January 6, 1987 in Department 111 before Judge Dion Morrow, pp. 733-737; (2) the reporter's transcript of the in-camera hearings on October 22, 1985 in Division 54 before Judge Elva Soper, pp. 2-26 and pp. 30-53; (3) 2 Supp CT vol. 8, pp. 2282-2286; (4) 2 Supp CT vol. 7, pp. 2131-2151; and (4) 2 Supp CT 8, pp. 2432-2438. |
| Jul 31 2003 | Counsel's status report received (confidential) |
| Aug 18 2003 | Request for extension of time filed to file appellant's reply brief. (7th request) |
| Aug 19 2003 | Extension of time granted to 10/24/2003 to file appellant's reply brief. After that date, only one further exension totaling about 60 additional days will be granted. Extension is granted based upon counsel Geraldine S. Russell's representation that she anticipates filing that brief by 12/24/2003. |
| Oct 1 2003 | Counsel's status report received (confidential) |
| Oct 16 2003 | Request for extension of time filed to file appellant's reply brief. (7th request) |
| Oct 20 2003 | Compensation awarded counsel Atty Russell |
| Oct 21 2003 | Extension of time granted to 12/24/2003 to file appellant's reply brief. Extension is granted based upon counsel Geraldine S. Russell's representation that she anticipates filing that brief by 12/24/2003. After that date, no further extension will be granted. |
| Dec 1 2003 | Counsel's status report received (confidential) |
| Dec 24 2003 | Application to file over-length brief filed by appellant to file reply brief. (171 pp. brief submitted under separate cover) |
| Dec 30 2003 | Filed: Declaration of attorney Geraldine Russell (confidential). |
| Dec 31 2003 | Order filed Appellant's "Application fo File Overlength Appellant's Reply Brief" is granted. |
| Dec 31 2003 | Appellant's reply brief filed (171pp.) |
| Jan 6 2004 | Compensation awarded counsel Atty Russell |
| Jan 27 2004 | Counsel's status report received (confidential) |
| Mar 29 2004 | Counsel's status report received (confidential) |
| Apr 23 2004 | Received: conditionally under seal, appellant's confidential ex parte motion to release legal records. |
| Apr 27 2004 | Request to file document under seal filed (AA) Appellant's application to file motion to release legal records under seal. (note: application was ordered withdrawn on April 4, 2008.) |
| Apr 28 2004 | Habeas funds request filed (confidential) |
| Jun 1 2004 | Counsel's status report received (confidential) |
| Jun 9 2004 | Order filed re habeas funds request (confidential) |
| Jun 21 2004 | Related habeas corpus petition filed (concurrent) case no. S125755. |
| Jun 30 2004 | Compensation awarded counsel Atty Russell |
| Feb 14 2005 | Filed: letter from attorney Russell advising that she will be out of the office from May 2 through May 25, 2005, and requesting that oral argument not be set during that time. |
| Jun 6 2005 | Filed: letter from attorney Russell advising that she will be out of the office from Sept. 19 through Oct. 10, 2005, and requesting that oral argument not be set during that time. |
| Jun 10 2005 | Change of contact information filed for: attorney Nicholas C. Arguimbau. |
| Jun 17 2005 | Filed: supplemental proof of service of atty Arguimbau's notice of change of address. |
| Nov 2 2005 | Received: letter from respondent, dated 11-1-2005, advising that Jeffrey Kahan is no longer employed with the AG's Office. Suv. Deputy AG Margaret Maxwell remains assigned counsel for respondent. |
| Nov 10 2005 | Filed: Amended declaration of service by U.S. mail of respondent's letter of 11/1/2005 to court to Law Offices of Nicholas C. Arguimbau. |
| Jan 27 2006 | Exhibit(s) lodged People's 1 - 1H, 2 - 2B, 4 - 4E, 5, 6 - 6H, 6J, 9 - 9F, 10 - 10B, 10E - 10Y, 10 C-1, 10 C-2, 11 - 11A, 20 - 20F, 20H - 20 I, 30 - 30A, 30C - 30D. |
| Feb 22 2006 | Compensation awarded counsel Atty Russell |
| Apr 3 2006 | Oral argument letter sent to counsel advising that case could be scheduled for oral argument as early as the late May calendar, to be held the week of May 30, 2006, 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. |
| May 2 2006 | Case ordered on calendar June 6, 2006, at 2:00 p.m., in Los Angeles |
| May 11 2006 | Filed letter from: Deputy A.G. Margaret E. Maxwell, dated May 11, 2006, re focus issues for oral argument. Note: received counsel's appearance sheet with request for 45 minutes for argument. |
| May 11 2006 | Filed letter from: attorney Geraldine S. Russell, dated May 10, 2006, re focus issues for oral argument. Note: received counsel's appearance sheet with request for 45 minutes for argument. |
| May 15 2006 | Exhibit(s) lodged People's exhibit no. 58. |
| May 25 2006 | Received: Additional Authorities from respondent. |
| May 30 2006 | Received: letter from appellant, dated 5-26-2006, advising that there may be a discrepancy with respect to the content of the reporter's transcript of in camera hearings held Oct. 22, 1985, ordered unsealed by the court of June 19, 2003. (note: "accurate" copy of R.T., pp. 2-29 and 54-64 enclosed with letter) |
| Jun 2 2006 | Order filed Respondent's "Motion Requesting Judicial Notice Be Taken" filed on August 8, 2002 is denied. |
| Jun 6 2006 | Cause argued and submitted |
| Jun 14 2006 | Compensation awarded counsel Atty Russell |
| Aug 7 2006 | Opinion filed: Judgment affirmed in full Opinion by Moreno, J. ----- joined by George, C.J., Kennard, Baxter, Werdegar, Chin and Corrigan, JJ. |
| Aug 22 2006 | Rehearing petition filed by appellant. (2293 words - 7 pp.) |
| Aug 24 2006 | Time extended to consider modification or rehearing to November 3, 2006, or the date upon which rehearing is either granted or denied, whichever occurs first. |
| Sep 27 2006 | Rehearing denied |
| Sep 27 2006 | Remittitur issued (AA) |
| Sep 27 2006 | Order filed court's 150-day statement. |
| Oct 3 2006 | Exhibit(s) returned People's 1-1H, 2-2B, 4-4E, 5, 6-6H, 6J, 9-9F, 10-10B, 10E-10Y, 10 C-1, 10 C-2, 11-11A, 20-20F, 20H, 20I, 30-30A, 30C, 30D and 58. |
| Oct 13 2006 | Received: acknowledgment of receipt of remittitur. |
| Nov 3 2006 | Received: acknowledgment of receipt of exhibits. |
| Dec 22 2006 | Received: copy of appellant's petition for writ of certiorari (25 pp. excluding appendices) |
| Feb 26 2007 | Received: letter from U.S.S.C., dated February 20, 2007, advising petition for writ of certiorari filed as No. 06-9529. |
| Jun 4 2007 | Received: letter form U.S.S.C.; dated May 29, 2007; cert petn was denied May 29, 2007. |
| Apr 1 2008 | Filed: letter from attorney Geraldine Russell, dated March 28, 2008, requesting to withdraw appellant's motion to release legal records under seal, filed on April 27, 2004. |
| Apr 4 2008 | Order filed Appellant's request, filed April 1, 2008, to withdraw the "Application to File Motion to Release Legal Records Under Seal," filed on April 27, 2004, is granted. |
| Apr 7 2008 | Motion filed (AA) application for release of files, records and any confidential materials (by Statia Peakheart, Federal Public Defender) |
| Jul 31 2008 | Received: letter from Deputy Federal Public Defender Statia Peakheart, dated July 29, 2008, requesting that the court rule on the application filed on April 7, 2008. |
| Aug 13 2008 | Filed: by Statia Peakheart, Deputy Federal Public Defender, "Notice of Filing Counsel's Order of Appointment In Support of Application for Release of Files, Records and Any Confidential Materials; Memorandum of Law; Declaration of Statia Peakheart." |
| Aug 27 2008 | Motion for access to sealed record granted Condemned prisoner Richard Ramirez's April 7, 2008 "Application for Release of Files, Records and Any Confidential Materials" is granted as follows: Federal counsel for Ramirez, the Federal Public Defender for the Central District of California, is granted access to the record in People v. Richard Ramirez (S012944) and In re Ramirez on Habeas Corpus (S125755), including all confidential materials. It is further ordered that Deputy Federal Public Defender Statia Peakheart not release, or cause to be released, 1) confidential status reports received by this court from Ramirez's counsel or former counsel or the information contained therein, or 2) sealed transcripts for hearings conducted outside the presence of Ramirez, or the information contained therein, to any person, including Ramirez, except that Ms. Peakheart's supervising attorneys at the Office of the Federal Public Defender may have access to these materials without further order of the court, and are also bound by the terms of this protective order. Trial court exhibits are not lodged at this court, but in the superior court, and access should therefore be sought in the superior court. Federal counsel must supply the personnel and equipment necessary to undertake this examination and copying of the records, which must occur on the premises of the court. If counsel wishes to quote, cite, disclose, or describe sealed material in any court papers, those papers must themselves be filed under seal. (See Cal. Rules of Court, rule 8.160(g).) |
| Mar 16 2009 | Related habeas corpus petition filed (post-judgment) No. S171312. |
| Sep 17 2009 | Note: respondent's "Motion for Access to Sealed Penal Code Section 987.9 Materials Filed in Case Number S012944 for Use in the Pending State Habeas and Federal Habeas Proceedings" filed this date in related habeas corpus, case no. S171312. |
| Briefs | |
| Mar 1 2002 | Appellant's opening brief filed |
| Aug 8 2002 | Respondent's brief filed |
| Dec 31 2003 | Appellant's reply brief filed |
