Filed 11/29/04
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S030956
v.
WILLIAM JAMES RAMOS,
Contra Costa County
Defendant and Appellant.
Super. Ct. No. 913003-0
In 1991, an information charged defendant with three counts of murder
(Pen. Code, § 187),1 with a personal use of a firearm enhancement on each count.
(§ 12022.5, subd. (a).) The information included a multiple-murder special-
circumstance allegation (§ 190.2, subd. (a)(3)), and charged two violations of
section 12021, subdivision (a) (felon in possession of a firearm). In addition,
defendant was charged with two enhancements under section 667.5, subdivision
(b) (prior violent felony prison convictions). He was held in the Martinez
Detention Facility.
Nearly a year later, county prison officials considered defendant a
continuing threat to staff and inmate safety. A judge ordered him removed from
Martinez to San Quentin, where he engaged in criminal and other questionable
activity. He attacked a jailhouse deputy, threatened the same deputy, and
1
All further statutory citations are to the Penal Code unless otherwise
indicated.
1
allegedly hoarded medication for a possible suicide attempt. Defendant also filed
numerous complaints about staff procedural violations.
Three months after he was placed in San Quentin, defendant pleaded guilty
to all charges. The court determined that the murders were of the first degree and
made a specific finding that defendant was competent to make the plea. (§ 1368.)
In November 1992, after a penalty trial, the jury returned a verdict of death. The
trial court denied defendant’s motions for new trial (§ 1181) and to modify the
penalty verdict (§ 190.4, subd. (e)), and sentenced him to death. This appeal is
automatic.
I. FACTS
A. The Charged Crimes
1. Tonya Karr Murder
On March 7, 1991, at approximately 7:20 p.m., neighbors in the vicinity of
706 J Street in Antioch heard a male shouting, followed by two gunshots. They
saw a stocky White male with long hair leave 706 J Street, walk to an adjacent
parking lot, and get into a Ford pickup truck with a camper shell on the back.
When Antioch police responded to the scene, they found Tonya Karr lying in a
pool of blood with two gunshot wounds to her head. She died the next day. Mary
Cagle, defendant’s ex-wife and Karr’s mother, had seen defendant leaving the
parking lot next to Karr’s apartment earlier in the evening.
2. Minnie Mae Coombs Murder
Minnie Mae Coombs was Cagle’s sister. At 8:30 p.m. on March 7, 1991,
Coombs’s daughter, Theresa Bodkin, went to Coombs’s residence looking for her
mother. She heard Ramos’s voice on Coombs’s answering machine stating that
Coombs could be found in the parking lot next door. Coombs was found dead in
her car. She had been shot once in the chest and once in the head.
2
3. Janice Butler Murder
On March 6, 1991, defendant picked up his girlfriend, Janice Butler, from
her house. Two days later, her body was found in the camper portion of
defendant’s pickup truck as it was parked at the Riverview Lodge in Antioch.
That same day, defendant surrendered to police after they spotted him in a white
van he also owned. Police then conducted a probation search of defendant’s home
and found evidence indicating that Butler had been shot and killed in defendant’s
home on the evening of March 6.
B. Other Crimes
1. Prior Convictions
The prosecution presented evidence of defendant’s prior felony convictions.
(§ 190.3, subd. (c).) In October 1976, defendant attempted to kill his former
girlfriend, Patricia Mowery, in Reno, Nevada. After Mowery, a card dealer at a
Reno casino, ended her relationship with defendant, he damaged items in her
house and was arrested for destruction of property. As he was led away, defendant
threatened Mowery that he would return. That same evening, defendant
approached Mowery at work and shot her in the chest. Defendant then
surrendered his weapon to the pit boss, folded his jacket, sat down, and watched
Mowery as she bled from the mouth and chest.
While awaiting trial, defendant asked his brother Steve to “do something”
to Mowery. In early 1977, Steve told the Nevada Grand Jury that his brother had
said: “I want her dead.” Defendant was convicted of attempted second degree
murder and sent to the maximum security Nevada State Prison in Carson City.
Defendant had two other felony convictions, namely, battery with a deadly
weapon in July 1979 in Washoe County, Nevada, and driving under the influence
causing bodily injury in Sacramento, California in August 1990.
3
2. Prior Criminal Activity
On December 2, 1976, while awaiting trial on the attempted murder charge
in Washoe County Jail, defendant exploded in a rage against jail personnel. He
threw a cup of what he said was urine at Deputy Richard Pico, who was
supervising the evening meal service. Later that night, defendant pounded his
head against the wall for several hours, and told a supervising sergeant that he was
going to kill Deputy Pico.
In March 1979, while serving time in Nevada State Prison on the attempted
murder conviction, defendant heaved a tray of hot food at a correctional officer in
charge of serving the dinner meal. Later that day, defendant threw a hard-boiled
egg at the officer and later threatened him that he would get him “on his mother’s
grave.” Defendant was moved to the prison segregation unit the next morning,
where he threw a cup of urine at an officer who entered his cell.
In 1992, while awaiting trial in the present matter in Contra Costa County
Jail, defendant attacked Sheriff’s Deputy Sean Dexter as he accompanied a jail
nurse on her “pill call” rounds, breaking Dexter’s thumb and punching his head.
Defendant later threatened to kill Dexter.
C. Defense Evidence
Dr. Harry Kormos, a psychiatrist hired to examine defendant, testified that
defendant suffers from a paranoid personality disorder due to the influence of
several factors, including an abusive childhood and time spent fighting in Vietnam
as a soldier during the Vietnam War. He characterized defendant’s condition as a
long-term behavior pattern that will last throughout defendant’s lifetime. Dr.
Kormos also noted that defendant’s disorder does not mean that he is insane or
that he does not appreciate the gravity of his acts; indeed, defendant knows what
he is doing. Defendant’s aunt testified that his mother, who eventually committed
suicide, physically abused her children. His father isolated the family and actively
4
discouraged contact with other people. He taught the children that “if you fight,
fight to win.” Defendant was known for his quick temper, which became more
severe, with the potential for greater violence, after his Vietnam experience.
Although there is no evidence defendant ever attempted to take his own life,
defense counsel presented the evidence to show that defendant may have intended
to commit suicide at a later date, and thus supporting defendant’s claim that he had
a “death wish.”2 He apparently hoarded medication while in prison awaiting his
penalty trial.
In addition, defendant’s brother, Steve Ramos, testified that he and
defendant were extremely close when they were children, but that trouble seemed
to find them. Former Warden James Park testified that he believed defendant
would adjust well to prison life and would remain in high-security prison for the
remainder of his life.
II. DISCUSSION
A. Motion to Suppress Evidence
Before pleading guilty, defendant raised several claims in a motion to
suppress the evidence found in a police search of defendant’s house and pickup
truck, including Janice Butler’s body, a blood stained blanket, an empty box of
.38-caliber ammunition, receipt for a Mossberg shotgun (all found in the pickup
truck), women’s clothing, blood swabs from the metal frame of a sofa bed, shot
wads on the ground outside, and other items connecting him to the murders. The
police opened the pickup truck by prying off the lock and opening the camper.
The police searched defendant’s house and truck pursuant to a probation search
2
As the People observe, the record is silent on whether defendant ever
actually attempted suicide, although correctional personnel testified that defendant
did hoard drugs, and that someone in prison had voiced a concern that the drugs
could be used for an overdose.
5
condition imposed after defendant was convicted of violating Vehicle Code
section 23253, subdivision (a) (felony driving under the influence (DUI) with
injury) in 1990. The blanket search condition required defendant to “submit his
person, property and automobile, and any object under the defendant’s control, to
search and seizure by any probation officer or other peace officer at any time of
the day or night with or without a warrant.” The officers were aware of the search
condition prior to their search.3
Defendant contends (1) the court improperly imposed the probation search
condition; (2) the condition was overbroad; (3) the police relied on the condition
as a subterfuge in order to avoid the warrant requirement; (4) the police had no
reasonable cause to search even with the probation condition; and (5) the police,
not a probation officer, initiated the searches, making them invalid. The trial court
denied the motion to suppress, concluding that the probation search condition was
reasonably related to the DUI offense.
Initially, we note that defendant’s challenge to the propriety of the search
condition is timely because the condition was imposed before we adopted a rule
requiring defendant to object to the condition at the time of sentencing or forfeit
the claim. (People v. Welch (1993) 5 Cal.4th 228, 237.) Welch, however, made its
objection and forfeiture rule prospective in application only. (Id. at p. 238.) The
Welch rule, therefore, does not apply to defendant, who received the probation
condition before Welch was decided.
In ruling on a motion to suppress, the trial court must find the historical
facts, select the rule of law, and apply it to the facts in order to determine whether
3
We recently held that when officers conduct a warrentless search unaware
of a parole search condition, the condition cannot be used to make the search
valid. (People v. Sanders (2003) 31 Cal.4th 318, 333.) That is not the case here,
as the officers were aware that defendant was on probation and subject to a search
condition at the time of their search.
6
the law as applied has been violated. (People v. Ayala (2000) 24 Cal.4th 243,
279.) We review the court’s resolution of the factual inquiry under the deferential
substantial evidence standard. The ruling on whether the applicable law applies to
the facts is a mixed question of law and fact that is subject to independent review.
(Ibid.)
Using these guidelines, we find no error. The trial court properly held that
the probation search condition was reasonably related to the DUI conviction,
which allowed officers to search and seize defendant’s person, property, and
automobile in order to protect the public. As we have held, “The level of intrusion
is de minimis and the expectation of privacy greatly reduced when the subject of
the search is on notice his activities are being routinely and closely monitored.
Moreover, the purpose of the search condition is to deter the commission of crimes
and to protect the public, and the effectiveness of the deterrent is enhanced by the
potential for random searches.” (People v. Reyes (1998) 19 Cal.4th 743, 753.)
We also conclude the warrantless searches here were proper. As we have
held, by accepting probation, a probationer consents to the waiver of Fourth
Amendment rights in order to avoid incarceration. “A probationer who has been
granted the privilege of probation on condition that he submit at any time to a
warrantless search may have no reasonable expectation of traditional Fourth
Amendment protection.” (People v. Mason (1971) 5 Cal.3d 759, 765.) Therefore,
“when defendant in order to obtain probation specifically agreed to permit at any
time a warrantless search of his person, car and house, he voluntarily waived
whatever claim of privacy he might otherwise have had.” (Id. at p. 766; see also
People v. Bravo (1987) 43 Cal.3d 600, 607.)
The facts known to the police when they undertook the probation search
provide ample support for the intrusion on defendant’s privacy. Mary Cagle, who
arrived on the scene of her daughter’s murder shortly after the shooting, told
7
officers that she had seen defendant driving his Ford pickup away from Karr’s
residence shortly before the shooting. Cagle told police that she feared defendant
had shot Karr because he blamed her for their pending divorce. Officers also
listened to a tape-recorded answering machine message defendant had left for
Cagle shortly after he murdered Karr. In the message, defendant indicated where
police could find Minnie Coombs’s body. Thus, when the officers, as here, have
reasonable suspicion that a probationer is engaged in criminal activity, there is
enough likelihood that criminal conduct is occurring that an intrusion on the
probationer’s privacy is reasonable. (See United States v. Knights (2001) 534 U.S.
112, 121.)4
B. Competency Issues
Defendant contends the trial court was required to hold a competency
hearing under sections 1367 and 1368 at specific points during the proceedings:
before the court accepted his guilty plea and admitted the special circumstance
allegations; before the beginning of his penalty trial; and before sentencing. He
claims that at each point, the trial court was presented with substantial evidence
sufficient to raise a doubt as to his mental competence and was therefore required
to hold a competency hearing. As an alternative argument, defendant contends
that even if substantial evidence did not support the need for a competency
hearing, the cumulative effect of the evidence should have led the court, in its
exercise of discretion, to order such a hearing.
The law on competency is well established. A defendant is presumed
competent unless it is proved otherwise by a preponderance of the evidence. (§
4
We have also rejected defendant’s claim that a search conducted under a
search condition is invalid if the police, rather than a probation officer, conducts
the search. (See In re Tyrell J. (1994) 8 Cal.4th 68, 80, fn. 2.) We see no reason
to revisit the issue here.
8
1360, subd. (f).) As a matter of due process, the state may not try or convict a
mentally incompetent defendant. (Drope v. Missouri (1975) 420 U.S. 162, 172;
Pate v. Robinson (1966) 383 U.S. 375, 378 (Pate); People v. Welch (1999) 20
Cal.4th 701, 732 (Welch).) Under section 1367, subdivision (a), a defendant
“cannot be tried or adjudged to punishment while he is mentally incompetent.”
Section 1368, subdivisions (a) and (b), respectively, require the trial court to
initiate proceedings in order to determine a defendant’s present sanity if “a doubt
arises in the mind of the judge as to the mental competence of the defendant” or
“[i]f counsel informs the court that he or she believes the defendant is or may be
mentally incompetent.” To be competent to stand trial, defendant must have
“sufficient present ability to consult with his lawyer with a reasonable degree of
rational understanding” and “a rational as well as factual understanding of the
proceedings against him.” (Welch, supra, 20 Cal.4th at p. 737, quoting Dusky v.
United States (1960) 362 U.S. 402.)
If a defendant presents substantial evidence of his lack of competence and
is unable to assist counsel in the conduct of a defense in a rational matter during
the legal proceedings, the court must stop the proceedings and order a hearing on
the competence issue. (Pate, supra, 383 U.S. at pp. 384-386; People v.
Pennington (1967) 66 Cal.2d 508, 516-517 (Pennington).) In this context,
substantial evidence means evidence that raises a reasonable doubt about the
defendant’s ability to stand trial. (People v. Frye (1998) 18 Cal.4th 894, 951-952
(Frye).) The substantiality of the evidence is determined when the competence
issue arises at any point in the proceedings. (Welch, supra, 20 Cal.4th at p. 739.)
The court’s decision whether to grant a competency hearing is reviewed under an
abuse of discretion standard. (§ 1368; Welch, supra, 20 Cal.4th at p. 742.)
Substantial evidence of incompetence may arise from separate sources,
including the defendant’s own behavior. For example, if a psychiatrist or
9
psychologist “who has had sufficient opportunity to examine the accused, states
under oath with particularity that in his professional opinion the accused is,
because of mental illness, incapable of understanding the purpose or nature of the
criminal proceedings being taken against him or is incapable of assisting in his
defense or cooperating with counsel, the substantial evidence test is satisfied.”
(Pennington, supra, 66 Cal.2d at p. 519.) If a defendant presents merely “a litany
of facts, none of which actually related to his competence at the time of sentencing
to understand the nature of that proceeding or to rationally assist his counsel at that
proceeding,” the evidence will be inadequate to support holding a competency
hearing. (People v. Hayes (1999) 21 Cal.4th 1211, 1280-1281.) In other words, a
defendant must exhibit more than bizarre, paranoid behavior, strange words, or a
preexisting psychiatric condition that has little bearing on the question of whether
the defendant can assist his defense counsel. (See Welch, supra 20 Cal.4th at p.
742; see also People v. Jensen (1954) 43 Cal.2d 572, 579.) We apply these legal
standards to defendant’s claim.
1. Competence to Plead Guilty or Stand Trial Prior to Penalty Trial
Defendant pleaded guilty to all charges and admitted the special
circumstance allegations on August 28, 1992. Two days before defendant entered
his plea, the court conferred in a closed session with trial counsel and defendant
present. During the closed session, counsel told the court that defendant wanted to
receive the death penalty and that after the entry of his guilty plea, defendant
would seek to have the penalty imposed. Counsel informed the court that if he did
not consent to defendant’s proposed plea, defendant had threatened to remove him
as counsel. As evidence of defendant’s incompetence, counsel introduced
evidence of his prior criminal activity and his erratic behavior while incarcerated,
10
including his attacks on Deputy Dexter at the Martinez Detention Facility, and his
apparent hoarding of medication for an alleged planned future suicide attempt.
After considering the evidence, the court denied the requested competency
hearing and accepted defendant’s guilty plea. The court observed: “I have had a
chance to consider this matter both on Wednesday and again today, and consider
the demeanor of the defendant, the manner in which he is approaching this. It is
not an easy thing for anybody here, but the Court is finding the defendant
competent. I want to make that clear. I have no reason whatsoever to question his
competency to enter into this.”
Defendant contends the court did not fully consider his propensity to
commit violent acts or his desire to receive the death penalty when it made its
competency finding. Indeed, defendant asserts that “a capital defendant whose
stated goal is lethal injection will never be in a position to assist his trial counsel in
presenting a defense.” Defendant contends that his “death wish,” together with his
past violent behavior, attempt to hoard drugs for a suicide attempt, and history of
psychiatric treatment, indicated that he was incompetent and incapable of assisting
in his own defense, and required the court to order an independent psychiatric
evaluation before finding him competent to plead guilty.
We disagree. We have held that a defendant’s preference for the death
penalty and overall death wish does not alone amount to substantial evidence of
incompetence or evidence requiring the court to order an independent psychiatric
evaluation. (People v. Guzman (1988) 45 Cal.3d 915, 963-965.) We have also
held that a defendant’s testimony as to his preference for the death penalty does
not render the ensuing death judgment constitutionally unreliable. (People v.
Nakahara (2003) 30 Cal.4th 705, 719.)
In addition, defendant’s propensity for violence, hoarding of medication for
an alleged suicide attempt, and history of psychiatric treatment do not indicate he
11
was incompetent at the time he pleaded guilty. (People v. Grant (1988) 45 Cal.3d
829, 859.) Thus, although defendant’s prior violent acts and other bizarre
behavior would lead us to agree he has violent propensities, and may even harbor
a death wish, they do not raise doubts that he was incapable of assisting in his own
defense or otherwise competent to plead guilty, admit the special circumstance
allegations against him, or stand trial. (Ibid.)
We also reject defendant’s claim that the trial court improperly relied
exclusively upon defendant’s demeanor during court appearances in order to
determine his competency and should have ordered a psychiatric evaluation prior
to finding him competent. Although a court may not rely solely on its
observations of a defendant in the courtroom if there is substantial evidence of
incompetence, the court’s observations and objective opinion do become
important when no substantial evidence exists that the defendant is less than
competent to plead guilty or stand trial. (See People v. Castro (2000) 78
Cal.App.4th 1402, 1416.) Here, the court specifically stated that in its discretion
and under all the evidence, including, but not limited to, observations of
defendant’s demeanor, it had “no reason whatsoever to question [defendant’s]
competence to enter into [the guilty plea].” When a defendant has not presented
substantial evidence to indicate he was incompetent, and the court’s declaration of
a doubt is therefore discretionary, its brief reference to the defendant’s demeanor
is not error. (See, e.g., Pate, supra, 383 U.S. at pp. 385-386; Welch, supra, 20
Cal.4th at pp. 741-742.)
2. Competence During Penalty Phase and Before Sentencing
Defendant claims that even if the evidence was insufficient to require a
suspension of the criminal proceedings before his guilty plea and commencement
of trial, additional evidence surfaced during the penalty trial and before sentencing
12
that required the court to order a competency hearing. Specifically, defendant
points to the fact that penalty phase testimony indicated he was physically abused
by his mother from the time he was an infant. The childhood abuse led to his
violent behavior as a young adult, such as kicking in the front door of former
girlfriend Mowery, threatening her with a butcher knife, and later shooting her.
He also gave a pretrial interview to a news reporter, implying that he would kill
again if crossed.
In addition, as noted (ante, at pp. 5-6), Dr. Kormos, a board-certified
psychiatrist, testified as a defense witness that defendant suffered from paranoid
personality disorder. Dr. Kormos added that the paranoid condition is not
episodic; it differs from a true psychosis because the sufferer never loses touch
with reality.
Defendant contends that Dr. Kormos’s testimony “should have alerted the
trial court that defendant’s pursuit of a death sentence was the product of mental
illness and not a rational choice. Dr. Kormos’s testimony made clear, or at least
provided substantial evidence to suspect, that [defendant’s] mental illness, his
paranoid personality disorder, precluded him from assisting in his defense, since
any rational defense would have to concede that the homicides were unjustified
and inevitably suggest that there was something wrong with defendant’s view that
when lines are crossed or rules are violated, the threatened consequences must be
meted out. In effect, [defendant’s] desire to receive the death penalty is perfectly
in keeping with his mental illness. To defend himself and defend his life would be
to admit that what he did was wrong.” Defendant lists 18 examples from Dr.
Kormos’s testimony that “would have alerted” the trial court to defendant’s
incompetence, including the evidence of defendant’s attack on Deputy Dexter, his
attempt to kill Mowery, and his statements to the reporter.
13
Defendant claims that the evidence presented at the penalty phase was a
“changed circumstance” or “new evidence casting a serious doubt” on his
competency. (See People v. Jones (1997) 15 Cal.4th 119, 149.) The evidence,
defendant contends, required the trial court to suspend proceedings and hold a
competency hearing under section 1368.
We disagree. Dr. Kormos testified that although defendant suffered from a
paranoid personality disorder, that disorder did not render him mentally
incompetent to understand the proceedings or assist the defense in any way. The
evidence defendant presented at the penalty trial did indicate that defendant lived
by his own set of rules and acted without regard for the lives of others. That
defendant lived by his own code of conduct neither indicates he was mentally
incompetent and could not understand the penalty proceedings, nor presents any
new evidence or changed circumstance that would require the court to suspend the
proceedings. As the People observe, the focus of the penalty phase is to determine
whether the death penalty should be imposed on a defendant who has been
determined death eligible as a result of the findings and verdict reached at the guilt
phase. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1266-1267.) Although
defendant’s mental capacity and his lack of remorse may have been factors the
defense wanted the jury to consider in its penalty determination, the record fails to
indicate that defendant could not understand the proceedings or otherwise assist in
his defense. Thus, the trial court did not abuse its discretion in failing to conduct a
competency hearing during the penalty phase of the proceedings. (Welch, supra,
20 Cal.4th at pp. 739-740 [no abuse of discretion in court’s failure to hold
competency hearing when defendant shows sufficient present ability to consult
lawyer and rational and factual understanding of proceedings against him].)
14
C. Penalty Trial Issues
1. Jury Selection: Adequacy of Voir Dire of Prospective Jurors
The trial court conducted voir dire under Code of Civil Procedure former
section 223, which, at the time of defendant’s trial, provided that in a criminal case
the court “shall conduct the examination of prospective jurors,” but that the parties
“upon a showing of good cause” may “supplement the examination.” (As added
by Prop. 115, approved by voters June 5, 1990.) The court permitted the parties to
prepare a detailed jury questionnaire designed to streamline the voir dire process.
The court also privately questioned individual prospective jurors, when it believed
that sequestered questioning was necessary. Defendant now makes several claims
regarding the voir dire. We address each claim separately.
a. Constitutionality of Code of Civil Procedure Section 223
Before the penalty phase, the defendant filed a motion asking the court to
permit counsel to conduct voir dire in a manner similar to that used in civil cases
under Code of Civil Procedure section 222.5, rather than the voir dire process used
in criminal cases, including death penalty matters, under Code of Civil Procedure
former section 223 (as added by Prop. 115, approved by voters June 5, 1990). The
prosecution filed a short opposition and the court denied the motion.
Defendant’s motion attacked, on equal protection grounds, the
constitutionality of Code of Civil Procedure section 223, as enacted in 1990 as a
part of Proposition 115. The statute, both as enacted and at present, provides that
in all criminal cases, including those involving the death penalty, the trial court
shall conduct the voir dire of “any prospective jurors. . . , where practicable, . . . in
the presence of other” prospective jurors. (Code Civ. Proc., § 223; see People v.
Waidla (2000) 22 Cal.4th 690, 713 (Waidla).) As Waidla observed, the change in
voir dire procedure abrogated prior law which had required individual and
sequestered voir dire in capital cases. (Waidla, supra, 22 Cal.4th at p. 713;
15
Covarrubias v. Superior Court (1998) 60 Cal.App.4th 1168 (Covarrubias)
[section 223 abrogated former individual voir dire procedure required under Hovey
v. Superior Court (1980) 28 Cal.3d 1].)
Defendant’s contention rests on his belief that this provision of Code of
Civil Procedure former section 223 unfairly places the voir dire in the hands of the
court, and allows counsel to ask questions on a showing of good cause only.5 By
contrast, defendant observes, Code of Civil Procedure section 222.5, gives counsel
in a civil action the right to examine, by oral and direct questioning, prospective
jurors. The difference between civil and criminal case voir dire, defendant claims,
denied him equal protection under the state and federal Constitutions.
We conclude, as the Courts of Appeal have, that Code of Civil Procedure
former section 223 did not violate the equal protection clauses of the United States
and California Constitutions, and reject defendant’s claim that his equal protection
challenge is subject to the strict scrutiny doctrine, which is applicable when there
is a significant interference with the exercise of a fundamental right. (Lucas v.
Superior Court (1988) 203 Cal.App.3d 733, 738.)
The right to voir dire the jury is not constitutional, but is a means to achieve
the end of an impartial jury. (People v. Estorga (1928) 206 Cal. 81, 84.) In
addition, “the peremptory challenge is not a constitutional necessity but a statutory
privilege.” (People v. Wheeler (1978) 22 Cal.3d 258, 281, fn. 28.) Therefore,
“there is no constitutional right to any particular manner of conducting the voir
dire and selecting a jury so long as such limitations as are recognized by the
5
Although not applicable to the present matter, we do note that in 2000 the
Legislature amended Code of Civil Procedure section 223 in order to allow
counsel in criminal cases to question prospective jurors without a good cause
showing. (Stats. 2000, ch. 192, § 1.)
16
settled principles of criminal law to be essential in securing impartial juries are not
transgressed.” (People v. Boulerice (1992) 5 Cal.App.4th 463, 474 (Boulerice).)
Federal and state courts have held, however, that the Legislature may
establish reasonable regulations or conditions on the right to a jury trial as long as
the essential elements of a jury trial are preserved, including number of jurors
(12), unanimity, and impartiality. (Boulerice, supra, 5 Cal.App.4th at p. 474.)
The purpose of Code of Civil Procedure former section 223 was to curb
commonly known abuses during the voir dire process in criminal cases.
(Boulerice, supra, 5 Cal.App.4th at p. 474.)
As the People observe, therefore, the statute’s distinction between criminal
and civil voir dire is constitutional as long as it is rationally related to a legitimate
state purpose under the rational relationship test, a test met here. (People v. Leung
(1992) 5 Cal.App.4th 482, 496 (Leung).) By enacting Code of Civil Procedure
section 223, the voters sought to prevent abuse of the jury selection process in
criminal cases. Prevention of abuse of a statutory right is a legitimate purpose,
and the voters’ action was aimed at achieving a legitimate purpose rationally
related to the distinction made by the law. (Leung, supra, 5 Cal.App.4th at p.
496.) Because the classification drawn by Code of Civil Procedure section 223
was rationally related to a legitimate state purpose, it did not deny defendant his
equal protection rights under the California and United States Constitutions.
(Leung, supra, 5 Cal.App.4th at p. 496.)
b. Abuse of discretion in allowing group voir dire
Defendant next contends the trial court abused its discretion because it
conducted group voir dire under Code of Civil Procedure former section 223, and
did not use its discretion to engage in sequestered and individual voir dire as also
17
allowed under the statute.6 Section 223 requires that voir dire of any prospective
jurors must, “where practicable,” occur in the presence of other jurors, and applies
“in all criminal cases, including death penalty cases.” Under Code of Civil
Procedure section 223, sequestration is left to the trial court’s discretion, based on
the court’s determination that it is practicable to conduct voir dire in the presence
of other prospective jurors. (Covarrubias, supra, 60 Cal.App.4th at p. 1172.)
In support of his claim, defendant includes two affidavits, one from retired
Superior Court Judge Norman Spellberg, and one from jury consultant Therese
Waller, a psychologist and staff member of the National Jury Project. In the
affidavits, the jury selection experts give their opinions on the potentially unfair
effect of the statutory voir dire procedures, including the apprehension prospective
jurors may feel when voir dire is conducted in the presence of other prospective
jurors.
Although the court did indicate that group voir dire would save time and
was convenient, given the courtroom size (and its inability to accommodate all
prospective jurors at once), it did not, defendant contends, appropriately weigh the
fact that the prospective jurors had been exposed to substantial pretrial publicity
and another venire person’s experience with an unsolved murder, both of which
could desensitize the panel to its task of determining the appropriate penalty. In
review of potential error under Code of Civil Procedure section 223, we apply the
abuse of discretion review standard to the trial court’s denial of defendant’s
6
The People initially assert that defendant forfeited his objections to the trial
court’s group voir dire because defense counsel only complained about the pace at
which voir dire would proceed and requested that voir dire should be conducted in
private. Because defendant’s claim involves voir dire generally through the
question of practicability, we conclude defendant adequately preserved the
question on appeal. (See People v. Saunders (1993) 5 Cal.4th 580, 590 (Saunders)
[general waiver doctrine encourages defendants to bring potential claim of error to
trial court’s attention].)
18
request to conduct individual voir dire of prospective jurors. (Waidla, supra, 22
Cal.4th at pp. 713-714.)
In considering defense counsel’s claim that “every question of every juror
should be outside the presence of the other jurors,” the trial court expressly stated
that it had discretion to order individual and sequestered voir dire if group voir
dire was impracticable. The court specifically permitted the parties to prepare a
jury questionnaire designed to streamline the voir dire process and to ensure that
the pretrial publicity did not taint or bias the jurors’ view of the case. The court
admonished the jurors not to read any newspaper articles about the case and, even
though some jurors did later read accounts of the trial, nothing suggests that the
voir dire process was responsible for their actions. The court also offered to
permit defense counsel to conduct private questioning of particular jurors when
necessary and, in order to ensure the panel was impartial, conduct in-depth
questioning of jurors who indicated they strongly believed in capital punishment.
Nor do the declarations discussed above assist defendant’s argument. The
declarations are general in character and do not point to problems in this case. In
addition, the declarations do not undermine the constitutionality of Code of Civil
Procedure section 223. The trial court’s approach to group voir dire, and its
thoughtful questioning on specific points, were reasonable, and we find no abuse
of discretion in the court’s conduct. (See People v. Box (2000) 23 Cal.4th 1153,
1180-1181 [trial court’s reasonable approach to group voir dire upheld].)
c. Questioning of Prospective Juror C.
The trial court excused for cause a prospective juror who indicated on her
questionnaire that a friend of hers had been murdered. She gave a detailed
account of the murder, and the court ascertained that she could not be fair and
impartial. Another prospective juror who did not serve on the panel mentioned
19
that the first juror’s story had influenced him. Defendant now claims that the
prospective juror who was excused should have been questioned in private, and
the court should have delivered a curative admonition to the other prospective
jurors.
Defendant forfeited his right to raise any error because he never asked the
court to question privately the prospective juror whose friend had been murdered
and did not request an admonition for the remaining panel members. (People v.
Sanchez (1995) 12 Cal.4th 1, 61-62 (Sanchez) [failure to object to court’s
questioning of prospective juror during voir dire forfeits claim].) On the merits,
we find the trial court’s careful questioning of the panel ensured the removal of the
first prospective juror, and there is no indication that the second prospective
juror’s remarks that he was influenced by the account of the unrelated murder
affected the other prospective jurors or undermined the court’s ability to empanel a
fair and impartial jury. (People v. Martinez (1991) 228 Cal.App.3d 1456, 1465-
1467 [using totality of circumstances test to evaluate effect of juror’s remark on
other prospective jurors].)
d. Prospective juror exposure to media and gender bias
Defendant next complains that he was denied his Sixth Amendment right to
a fair and unbiased jury because the court refused to remove jurors who were
exposed to the media and who were sensitive to issues involving gender bias. (See
People v. Earp (1999) 20 Cal.4th 826, 852-853 [trial court must conduct adequate
voir dire to ensure defendant’s constitutional right to an impartial jury].)
Initially, we note that defendant has forfeited the right to raise any alleged
error because he failed to object on either basis during trial. (Sanchez, supra, 12
Cal.4th at pp. 61-62.) Even on the merits, we would reject the claims. The jury
questionnaire that the parties provided the court fully explored potential media
20
bias and whether the jurors could avoid media exposure. The questionnaire also
probed the effect of media exposure on the panel and satisfied the court that the
voir dire adequately probed the media question.
In addition, the trial court supplemented the questionnaire with follow-up
questioning on potential media exposure. For example, the court’s discussion with
prospective Juror C. about the potential media influence on her views of the case
proceeded as follows:
“[Court:] Now that you have sat through this process before, do you feel
you have heard something about the case, or heard something about the case
beyond what is in this questionnaire answer?
“[Juror C.:] I remember reading a little bit about the -- it, when it
happened.
“[Court:] Would you be able to set aside what you might have read about
it, and decide this case based on the evidence –
“[Juror C.:] Yes.
“[Court:] Received here?
“[Juror C.:] Yes, I can.
“[Court:] You heard the questions I have asked other jurors that may have
read something about this. It is important that this case be decided with a fresh
mind, based only on evidence that appears here in the courtroom.
“[Juror C.:] Um-hum, yes.
“[Court:] Okay. Even though you may have some vague recollection
about reading something, the case can not be based on that. Would you be able to
set that aside and listen to the evidence here?
“[Juror C.:] Yes, I can.”
The above colloquy is typical of the trial court’s follow-up voir dire on
media exposure, and adequately explored the potential for prejudice. After
21
reviewing the entire voir dire of all prospective jurors, we are satisfied that the
inquiry into possible media bias was adequate under the Sixth Amendment. We
find no error here.
Defendant’s additional claim that gender bias was not fully explored on
voir dire is also without merit. First, defendant failed to preserve the issue by
timely objection. (Sanchez, supra, 12 Cal.4th at pp. 61-62.) In addition, his claim
that gender bias caused him to commit the murders is without merit. The jury had
ample evidence that defendant’s violent acts were not gender specific, and that his
prior criminal activity included several acts of violence against men. For example,
defendant committed acts of violence against male jail and prison personnel and
threatened to harm male acquaintances, including Jess Martin, Mary Cagle’s
boyfriend. In addition, the fact that the jury may have been exposed to a
newspaper article discussing defendant’s apparent disdain for women serving in
combat does not make his gender bias defense claim any more credible, and his
attempt to blame Cagle for “inciting” his murder spree is nothing more than an
attempt to refuse to take responsibility for the brutal murders. Because the case
did not involve a credible gender bias claim, no need arose for the additional voir
dire questioning on the subject.
e. Other voir dire related claims
Defendant also claims that the court inadequately conducted follow-up
questioning of another prospective juror who was excused for cause because she
strongly believed she could not impose the death penalty. The record is devoid of
any objection from defendant or any question offered by defendant in an attempt
to rehabilitate the juror, indicating defendant forfeited his right to raise the claim.
In addition, as the record shows, the court’s questioning of that juror revealed
significant bias against the death penalty. She indicated she could never vote to
22
impose the penalty, regardless of the evidence, and repeated similar sentiments
when the court’s questioning continued. Given the prospective juror’s adamant
bias against imposing the death penalty, we find no error in the removal for cause.
Defendant’s claim that the prosecutor improperly exercised peremptory
challenges to remove prospective jurors who opposed the death penalty or were
neutral to the penalty has been considered and rejected in other cases. (See, e.g.,
People v. Pinholster (1992) 1 Cal.4th 865, 912; People v. Ashmus (1991) 54
Cal.3d 932, 967-968.)
2. Alleged Juror Misconduct
Defendant makes specific claims of error involving separate instances of
juror misconduct during the penalty trial. We address the contentions seriatim.
As to all claims, we find that even if misconduct did occur, it was not prejudicial.
a. Reading of newspaper articles
The jury commenced deliberation on Monday, November 9, 1992. After
less than two hours, it recessed until the next morning. The jury then deliberated
all that day, making several requests for clarification of legal issues and reading of
testimony. The jury next deliberated on November 12. That day, the court
received a note from the jury foreperson: “We are having great difficulty in
reaching a unanimous decision. We would like further instruction on how to
proceed.” After discussion, the jury agreed to return the next day and attempt to
resolve its differences.
On Friday, November 13, at 2:30 p.m., the jury sent another note to the
court: “We can go no further. We are not unanimous in our decision.” Before the
court could act on the note, the jury sent another one at 2:55 p.m., stating: “Upon
further discussion, we have decided to take one last vote on Monday morning.”
On Monday, November 16, the jury returned a verdict of death.
23
On December 22, defendant moved for a new trial. He alleged that a juror
had read newspaper articles about the case during the trial and that two other
jurors had considered an article before rendering the verdict. Jury Foreman M.G.,
in a supplemental declaration, identified the juror who said she had read articles
about the case during trial as Juror R.D. Juror M.G. was “reasonably certain” that
some jurors had discussed the article on November 16, before reaching the verdict,
namely, Juror M.B. and either Juror S.S. Juror or P.B. The foreman also stated:
“I am reasonably certain that it was Juror S.S. who pulled the newspaper article
out of her purse.” 7
These jurors submitted counterdeclarations. Juror R.D. denied reading any
articles during the trial or deliberations. “I never told anyone that I was reading
articles about the case during the trial.” Juror M.B. also denied reading any
articles. She did state that after the jury was discharged, she heard someone (she
could not remember who) mention one article. Juror S.S. also stated that she had
not read any newspaper articles or heard Juror P.B. discuss the weekend article in
the jury deliberation room on November 16.
7
Juror M.G.’s supplemental declaration contained several other comments,
including additional references to juror misconduct. “During the course of
deliberations in this case, the content of newspaper articles was never discussed by
the jury, as far as I can recall.” The one juror who, until the final vote, held out for
life imprisonment, never mentioned the newspaper articles during the trial, and
there is no evidence to suggest that the articles allegedly read by other jurors
influenced the holdout juror’s eventual willingness to impose the death penalty.
Defendant contends that this portion of the supplemental declaration must be
ignored because it violates Evidence Code section 1150’s prohibition against
allowing a court to consider a juror’s mental processes in reaching the verdict. We
do not find, however, the testimony of the juror holdout to be anything other than
a statement of an objective fact, and it does not concern the mental processes by
which the verdict was determined. (See People v. Steele (2002) 27 Cal.4th 1230,
1261.)
24
Juror S.S. did describe what occurred in a restaurant when the jury gathered
after rendering the verdict: “After the verdict had been reached on Monday,
November 16, the jury was waiting to be called into the courtroom. Juror B.T.
pulled a folded newspaper out of her purse. She stated someone had given her the
paper, but she had not read it. [¶] I told [B.T.] I would like to read the article.
[B.T.] handed me the folded paper and I put it in my purse. I did not read it at that
time. [¶] After the verdicts were read, and the jury dismissed, many jurors met
for breakfast. [¶] At the restaurant, I remembered the newspaper in my purse. I
took the paper out and read the Saturday, November 14 article at that time.”
Juror L.S. also filed a declaration stating she did not read any newspaper
articles during the trial or deliberations. She did note that after the jurors had
reached a verdict and were waiting to be called into the courtroom, Juror M.B.
pulled an article about the case out of her purse that a coworker had given her
sometime over the weekend. Juror L.S. interrupted and advised Juror M.B. not to
discuss the article.
The new trial motion was argued on January 8, 1993. The court found that
under a preponderance of the evidence “the defense has shown misconduct, in that
the articles may have been read during the course of this trial.” The court
summarized the content of the articles, and concluded that in general, they
consisted of neutral summaries of the trial events. In finding misconduct, the
court never identified which incident or article influenced its conclusion. The
court simply stated: “I feel that by a preponderance of the evidence that the
defense has shown misconduct, in that articles may have been read during the
course of this trial.” The objective nature of the articles, and their seemingly
innocuous content, however, led the court to conclude that defendant had not been
prejudiced, even assuming the jurors read them. The court also noted that “[t]his
was also a case in which the facts really were not in dispute.” After assessing the
25
entire case record, and determining the jury was conscientious, the court denied
defendant’s motion for a new trial.
b. General legal principles
Juror misconduct involving the receipt of extraneous information about a
party or the case that was not part of the evidence received at trial, creates a
presumption that the defendant was prejudiced by the evidence and may establish
juror bias. (People v. Nesler (1997) 16 Cal.4th 561, 578.) This is because “due
process means a jury capable and willing to decide the case solely on the evidence
before it.” (Smith v. Phillips (1982) 455 U.S. 209, 217.) When, as here, the jury
receives the evidence from an outside source, the verdict is set aside if there is a
“substantial likelihood” of juror bias. (Nesler, supra, 16 Cal.4th at p. 578.)
Defendant may establish bias if (1) the extraneous material, judged objectively, “is
so prejudicial in and of itself that it is inherently and substantially likely to have
influenced a juror” (id. at pp. 578-579) or (2) from the nature of the misconduct
and surrounding circumstances, it is substantially likely a juror “was actually
biased” against the defendant. (Ibid.) Because it is impossible to shield jurors
from every contact that may influence their vote, courts tolerate some imperfection
short of actual bias. (In re Hamilton (1999) 20 Cal.4th 273, 296 (Hamilton).)
As noted, although the trial court determined that misconduct did occur, it
concluded that any misconduct was not prejudicial because it did not influence the
jurors to the defendant’s detriment. The court relied on Juror M.G.’s initial
declaration specifying two possible times when jurors could have been exposed to
information from an extraneous source. First, Juror M.G. accused Juror R.D. of
informing him, during deliberations, that he had read “all of the articles that have
come out” during the proceedings. Although Juror R.D. later denied reading the
26
articles, the court resolved the apparent conflict between her declaration and Juror
M.G.’s comments in defendant’s favor.
In addition, Juror M.G. accused Jurors M.B. and S.S. of discussing an
article, following their sentencing vote, “in a way that indicated that each of them
had read the article prior to taking their final vote.” As the People observe, Juror
L.S.’s counterdeclaration absolved Juror M.B, and Juror S.S.’s counterdeclaration
absolved Juror P.B. The court resolved the conflicting declarations in defendant’s
favor, after weighing all the evidence.
An appellate court will accept the trial court’s determinations and findings
on questions of historical fact if they are supported by substantial evidence. (In re
Carpenter (1995) 9 Cal.4th 634, 646 (Carpenter).) Because we find the evidence
supporting defendant’s allegations close, we agree with the trial court’s finding of
misconduct. The question whether the misconduct was prejudicial is a mixed one
of law and fact, and is subject to an appellate court’s independent determination.
(Id. at pp. 658-659.) Keeping these principles in mind, we review the trial court’s
finding that the articles, even if read, were not prejudicial.
c. Prejudice analysis
Defendant contends that each of the articles “skews and telescopes” the
evidence and testimony presented toward the rendering of a verdict of death. He
complains that the articles were “inherently prejudicial,” and the fact that several
jurors were aware of them and filed dishonest affidavits in response to the court’s
questions regarding their reading of the articles, should have led the trial court to
grant his new trial motion.
Defendant initially discussed two separate articles appearing October 27,
1992, and November 14, 1992. The first article reported on Mary Cagle’s
testimony, and is objective and contained no information the jurors did not hear
27
themselves in the courtroom. Nothing in the article’s description of Cagle’s
testimony harbored the potential for influencing a juror who might read it. (See
Hamilton, supra, 20 Cal.4th at p. 301, fn.21.)
The second article described defendant’s behavior while listening to the
tape of his threats to Cagle. Defendant complains that the article reports that while
listening to the tape, he was “slightly smiling,” “tapping his fingers,” and
“stroking his beard.” As the People point out, however, the article describes a
momentary change in facial expression, nothing else. Defendant fails to note that
the jurors observed, firsthand, his change of expression, and it is doubtful that his
brief change in expression influenced the jury’s overall impression of the
defendant. Although the article briefly referred to the fact that defendant did not
believe women should engage in combat, the jury was already aware of
defendant’s views on women and combat. We find no substantial likelihood that
the article influenced the jury negatively.
Two additional newspaper articles, printed on October 23, and November
10, 1992, described the opening and closing arguments. Defendant claims the
summaries focused on his violent past, and contained gruesome details of his
murders, but so did the arguments. The articles contained nothing significant that
the jury did not hear themselves. They contained no extraneous information. We
conclude the trial court correctly found that the information they disclosed was not
prejudicial.
Other articles reporting on defendant’s statement that he believed he would
be sentenced to death, and reporting the events at trial, were evenhanded in their
discussions and noninflammatory. No evidence exists that any of the jurors read
these articles, and even if they did, there is no evidence the jurors exposed to the
articles discussed the information with the other jurors. (Hamilton, supra, 20
Cal.4th at p. 301, fn. 21.) We have held that reading a newspaper account of the
28
trial is not sufficient to create a substantial likelihood of prejudice, and we find
none here. (Ibid.; Carpenter, supra, 9 Cal.4th at pp. 656-657.)
Defendant’s remaining complaint about the trial court’s no prejudice
finding is that the court failed to hold an evidentiary hearing “to resolve any
conflicts that required resolution and to permit counsel to elicit further details
relevant to the issue of prejudice.” The details defendant seeks “existed in all of
the jurors’ declarations submitted in defendant’s motion for a new trial and the
prosecution’s opposition to the motion.”
As the People observe, although defendant’s initial showing satisfied the
evidentiary standard for proving that misconduct occurred, it was insufficient to
require the trial court to conduct an evidentiary hearing. The court gave defendant
the benefit of the doubt in interpreting the statements made in the declarations in
favor of finding misconduct, and conducting an evidentiary hearing would not
have changed the misconduct finding.
In addition, the evidence supporting the death verdict was overwhelming.
Defendant pleaded guilty to the murders and admitted the special circumstance
allegations. The proof of his prior violent acts was extensive, and there was no
evidence that any offending juror discussed the newspaper articles with any
innocent juror. (Hamilton, supra, 20 Cal.4th at p. 301, fn. 21.) We find no reason
to overturn the trial court’s finding that the jurors’ exposure to newspaper articles
reporting on defendant’s trial did not prejudice the verdict.
3. Juror’s Request to Speak with Defendant
After the defense completed its case on November 5, 1992, the trial court
excused the jury until Monday morning, November 9, for final arguments. Once
the jurors left the courtroom, the court revealed to counsel that Juror M.B. had sent
it a note earlier that afternoon that stated: “I would like to talk to the defendant at
29
the close of trial in the presence of the attorney and Your Honor.” Asked to
explain the note, the juror indicated “it has nothing to do with me, as a juror.” The
juror also told the court that her inquiry was related to her work as a missionary,
and that she “would just like to talk to [defendant], person to person, and maybe
say a prayer with him.” Juror M.B. also revealed that Jurors S.S. and R.D. had
expressed the same desire to meet with defendant, although the jurors had not
discussed the case among themselves. “[T]his was just a question that was
brought up: Was it ever permissible for the jurors to talk to the defendant after the
trial was over?” During the discussion, defense counsel never objected to Juror
M.B.’s request, but stated that “I think we need to get together and work out a
specific question to ask each of them. Because the one that you said here about
the moral or humanitarian, it could kind of impinge on what they are told in the
instruction. There might be some divergence there. I think we have to be
extremely careful of our words.” Before leaving the courtroom, Juror M.B. told
the court that she promised to follow the court’s directions about how to evaluate
the case.
The following Monday, the trial court questioned Jurors R.D. and S.S.
Juror R.D. indicated she simply wondered whether jurors could say “hi” to
defendant. Juror S.S. stated she had been a bystander when the discussion about
communication with defendant occurred, and she did not desire to speak with him.
Defendant contends “that the manner in which the trial court conducted its
bias inquiry of Juror M.B. compromised the juror’s ability to be impartial and
rendered her unable to fulfill her juror duties.” He claims that the court’s
questioning effectively nullified any sympathy she may have felt toward defendant
by alerting her to the fact that her note may have compromised her ability to
impose the death penalty.
30
By failing to object, defendant forfeited his claim. (Evid. Code, § 353; see
Saunders, supra, 5 Cal.4th at pp. 589-592.) We also find the claim lacks merit.
Nothing indicates that Juror M.B.’s note contained information that “jurors had
commenced their deliberations or had formed any tentative conclusions regarding
the appropriate penalty.” (People v. Anderson (1990) 52 Cal.3d 453, 481.) The
note indicated the juror was concerned only with defendant’s spiritual well-being.
Because the note did not raise the possibility of juror misconduct, the court had no
duty to conduct an inquiry into the juror’s motives. (People v. Barnett (1998) 17
Cal.4th 1044, 1117.)
4. Shield Law Claim
a. Facts
Following defendant’s arrest, William Hutchinson, a reporter for the
Antioch Daily Ledger Post Dispatch, interviewed defendant about the charges
pending against him. On March 12, 1991, the newspaper published the interview,
entitled I’ll Get Death Penalty. (Hutchinson, I’ll Get Death Penalty, Antioch
Daily Ledger-Post Dispatch (Mar. 12, 1991), p. 1.) According to Hutchinson,
defendant told him that he expected to be convicted of the crimes, and “ ‘I figure
they will find me guilty because they’ve got a lot of evidence against me.’ ” (Id.
at p. 1.) The article also quoted defendant as saying, “ ‘I figure I’ll get the death
penalty. I knew that before any of this happened. But like I said, I weighed all
that before I did anything.’ ” He also commented that, “ ‘if you push my button,
then whatever happens, happens.’ ” (Id. at p. 12.)
Prior to the penalty trial, the prosecution subpoenaed Hutchinson as a
witness. Hutchinson and the newspaper filed a motion to quash the subpoena, on
the ground that the information the prosecution sought was protected by the
California shield law (Cal. Const. art I, §2, subd.(b); Evid. Code § 1070). The
31
shield law, as explained further below, provides newspersons, including reporters
who are engaged in legitimate journalistic purposes, protection against compulsory
disclosure of the information they acquire in gathering news. (Delaney v. Superior
Court (1990) 50 Cal.3d 785, 798 (Delaney); Cal. Const., art. I, § 2, subd. (b)
[repeats language of Evid. Code, § 1070 immunity and elevates protection to
constitutional status]; Evid. Code, § 1070 [immunity applies to any unpublished
information obtained in gathering, receiving, or processing information for
communication to public].)
A hearing on the motion to quash was held on October 27, 1991. The
prosecutor told the court that “all the People would seek to elicit from Mr.
Hutchinson is an affirmation as to whether or not [defendant] made certain
statements which are attributed to him in the article.” The prosecution noted that it
did not seek any unpublished information or Hutchinson’s notes.
The prosecutor then asked Hutchinson whether defendant had made the
comments attributed to him in the March 12 article. Hutchinson replied that
although he could not remember exactly what defendant told him during the
interview, “at the time I wrote it, I believed it to be accurate.” Defense counsel
then moved to strike Hutchinson’s proposed testimony “[o]n the grounds I can’t
adequately cross-examine him.”
The court stated that Hutchinson’s testimony would be allowed, but that it
was concerned with defendant’s cross-examination rights. When asked to identify
areas of potential cross-examination, defense counsel replied, “I want to know
every single thing about this conversation from start to finish. If he had a tape
recording of it, that would be great. If he doesn’t, then I want to elicit as much
information as I can get; short of there being some recording of every single
statement that was made, every question that was asked.”
32
The court continued the hearing after learning that Hutchinson had not
taped the interview. Defense counsel objected to any in camera hearings that
counsel could not attend, commenting, “I am asserting now that this Court can not,
in any way, shape or form make a decision about what’s useful to the defense in
this case, Your Honor. It’s too complicated a defense.”
The court then granted defendant’s request for an in camera hearing, with
defendant and his counsel present. The court conducted the in camera hearing
without the prosecutor, in order to explore what would assist in defendant’s cross-
examination. Defendant told the court that he sought Hutchinson’s notes “and the
following information: (1) The context of [defendant’s] statements; (2) the flow
of conversation; (3) the specific words [defendant] used; (4) the intensity of
[defendant’s] voice; (5) how long [defendant] spoke about matters which in his
mind justified his action without interruption; (6) whether [defendant] presented
his justifications logically; and (7) whether [defendant] evidenced a strong belief
in what he was saying.”
The court next held an in camera hearing with Hutchinson, his attorneys,
the prosecutor, and defense counsel present. During the hearing, Hutchinson
indicated he had no independent recollection of the interview, except the
information provided in his notes. The notes indicated that defendant made the
reported statements to Hutchinson, appeared calm and spoke in a monotone,
discussed very seriously his life philosophy, did not appear delusional, presented
his arguments logically, and believed what he was saying.
The court determined that on the basis of Hutchinson’s in camera
testimony, it would allow the defense to cross-examine Hutchinson on his
observations of defendant’s demeanor, mental status, and the manner in which
defendant answered questions. Hutchinson’s notes would not be produced.
33
The court allowed the defense to question Hutchinson outside the jury’s
presence in order to determine the scope of his potential trial testimony and
whether he would rely on the shield law. Hutchinson invoked the shield law as to
all questions regarding defendant’s demeanor during the interview. The trial court
found the reporter in contempt for his refusal to answer the questions initially.
The court suggested that Hutchinson answer the questions that were covered in the
protected notes “independent of the notes.” Hutchinson eventually spoke on the
length of his interview with defendant and whether defendant smiled. The trial
court then discharged the contempt citation.
During trial, Hutchinson testified for the prosecution (with the jury present)
that he had written the March 12 article a day or so after interviewing defendant.
He noted that defendant “is not a man who does things impulsively and he thinks
beforehand of the consequences of his actions.” According to Hutchinson,
defendant told him: “Let’s say, I consider everything before I do it. I weigh all
the angles, make my decision and I go ahead and do it.” Hutchinson also recalled
that defendant told him in reference to the fact that he shaved his head shortly after
the murders, “I wanted to change my looks. I wasn’t done. I didn’t intend for
them to catch me for awhile.” “I had some other things I wanted to do. Getting
caught wasn’t one of them. At least getting caught so quick wasn’t part of my
plan.” In reference to Janice Butler, defendant told Hutchinson, “she crossed the
line. I told her if she ever got between me and my wife, they’d find her body out
back in Brentwood.” Defendant made similar comments regarding his ex-wife,
Mary Cagle, his belief that “If I draw a line and tell you not to cross that line,
you’ve got everything coming to you if you cross it because I’m not going to draw
two lines.”
On cross-examination, Hutchinson testified that throughout the interview,
defendant spoke in a stern voice and was calm, and that at times his eyes stared
34
intently through the glass. Hutchinson could not recall the order in which
defendant made the statements the article attributed to him, but believed that the
statements, though paraphrased, were accurate. Hutchinson noted that his
“definition of someone who is calm would be someone who is lucid, rational,
someone who isn’t jumping around or delusional,” although he did acknowledge
to defense counsel that a person could appear calm but be irrational at the same
time. Dr. Kormos later testified that Hutchinson’s account of the interview would
not change his diagnosis.
b. Failure to produce interview notes
Defendant’s principal complaint is that the trial court abused its discretion
in failing to require Hutchinson to produce his interview notes and limiting his
responses to describing defendant’s demeanor and perceived mental state.
Defendant claims the interview notes were essential to support his mental disorder
defense and necessary for his counsel to show that his statements “were said in a
context and manner to validate [defendant’s] psychiatric disorder and to provide
evidence of a mitigating factor for the jury to consider in rendering a verdict.” We
disagree.
As both defendant and the People agree, the standard for determining
whether a defendant may compel disclosure of information otherwise protected
under the shield law was set forth in Delaney, supra, 50 Cal.3d 785. Delaney held
that the law protects a reporter from contempt for refusal to disclose either
unpublished information or the source of the information, whether published or
unpublished. (Id. at pp. 796-797.) Delaney observed that “a newsperson’s
protection under the shield law must yield to a criminal defendant’s constitutional
right to a fair trial when the newsperson’s refusal to disclose information would
unduly infringe on that right.” (Id. at p. 793.) As we have observed in several
35
cases, “In order to compel disclosure of information covered by the shield law, the
defendant must make a threshold showing of a reasonable possibility that the
information will materially assist his defense. The showing need not be detailed
or specific, but it must rest on more than mere speculation.” (People v. Cooper
(1991) 53 Cal.3d 771, 820, paraphrasing Delaney, supra, 50 Cal.3d at pp. 809-
813; see also Sanchez, supra, 12 Cal.4th at p. 53.) If the threshold showing is
made, the court then balances various factors in determining whether it must
compel disclosure of the information. (Delaney, supra, 50 Cal.3d at pp. 809-813.)
These factors include whether the information is confidential or sensitive, the
interests that the shield law protects, the importance of the information to the
defendant, and, in some cases, whether there is an alternative source for the
information. (Id. at p. 813.)
We have observed that “[a]lthough Delaney did not and could not specify
what evidence would meet its threshold test, the court did observe that the
defendant need not prove evidence he sought to discover would lead to his
exoneration and that ‘the defendant’s showing need not be detailed or specific, but
it must rest on more than mere speculation.’ ” (Sanchez, supra, 12 Cal.4th at p.
56, quoting Delaney, supra, 50 Cal.3d at p. 809.) One example in capital cases
where we have recognized the evidence might meet the threshold test and is
necessary to a defendant’s constitutional right to a fair trial, is in his ability to
“establish mitigating circumstances relevant to the penalty determination.”
(Delaney, supra, 50 Cal.3d at p. 809.)
Using Delaney’s threshold test, defendant claims Hutchinson’s notes of the
March 12 interview were essential to validate defendant’s psychiatric disorder and
provide evidence of a mitigating factor for the jury to consider in favor of a life
sentence.
36
The evidence defendant asserts would have materially assisted his mental
state defense consists of nothing more than mere speculation on his part.
Defendant has made no attempt to show that the notes reveal anything different
from Hutchinson’s testimony, and the record does not suggest the notes contain
anything of substance that the jury had not already heard. In addition, the only
matters in the notes to which Hutchinson did not testify (whether defendant was
promised confidentiality and the interview’s duration) do not bear on defendant’s
mental state at the time of the murders. Dr. Kormos did testify that nothing in
Hutchinson’s testimony changed or contradicted his diagnosis of paranoid
personality. But defendant has failed to meet Delaney’s threshold test, and we
find no abuse of discretion in the trial court’s use of the shield law in protecting
Hutchinson’s notes. Because defendant has not met Delaney’s threshold test, we
need not balance the Delaney factors in order to determine whether disclosure is
required. (Delaney, supra, 50 Cal.3d at p. 813.)
c. The in camera proceeding
Defendant contends that the trial court’s determination that nothing existed
in Hutchinson’s notes to materially assist his defense was the result of a
constitutionally defective in camera hearing. Claiming Hutchinson’s notes were
“neither confidential nor sensitive,” defendant asserts that the notes were essential
to establishing his mental health defense because they contained the demeanor
evidence the defense sought to procure to demonstrate his mental state.
Again, defendant overlooks the fact that Hutchinson did testify as to
defendant’s demeanor and mental state during the interview. The fact that the
court held an in camera hearing to determine the extent of Hutchinson’s reliance
on the shield law in no way affected the gist of his later testimony as to
defendant’s interview demeanor.
37
In a related argument, defendant claims that the trial court’s decision to
hold an in camera hearing excluding both defendant and his counsel denied him
his constitutional right to be present and to assistance of counsel. He also claims
that application of the shield law denied him his right to the “entirety of the
interview,” thwarting his ability to present a defense and obtain a fair trial. (See
Evid. Code, § 356.) Defendant again fails to show how the in camera proceeding
or the protection of the unpublished notes in any way negatively influenced his
ability to present a defense or receive assistance from counsel, or in any way
changed his defense or the context of Hutchinson’s testimony. (Sanchez, supra,
12 Cal.4th at p. 58.)
d. Additional claims
Defendant also claims that the failure to produce Hutchinson’s interview
notes denied him his right to confront and cross-examine the reporter, his right to
present a defense, a fair and reliable penalty phase trial, compulsory process, and
his right to effective assistance of counsel. As the facts show, Hutchinson was
cross-examined on his testimony regarding the interview, and defendant does not
establish that further cross-examination would have revealed additional
information or otherwise influenced the jury’s verdict. No evidence suggests
Hutchinson’s testimony prejudiced the presentation of defendant’s case.
5. Exclusion of Evidence
Defendant complains that the trial court abused its discretion when it
excluded evidence, and in so doing denied him his Sixth, Eighth, and Fourteenth
Amendment rights to present a penalty phase defense. He specifically refers to
three types of evidence: (1) the proposed testimony of prison expert James Park
concerning Park’s anti-death-penalty beliefs; (2) the proposed testimony of Mary
Cagle’s former boyfriend, Jess Martin, as to Cagle’s alleged bias as a witness; and
38
(3) Martin’s proposed testimony about Cagle’s alleged manipulative behavior. In
each instance, defense counsel offered proof as to the evidence he sought to
introduce. (See People v. Livaditis (1992) 2 Cal.4th 759, 778 [requiring offer of
proof].) We find no abuse of discretion and no violation of defendant’s
constitutional rights in the trial court’s decision to exclude the testimony.
As the People observe, defendant’s Sixth Amendment right to present a
defense includes the right not to have the trial court interfere with a defendant’s
ability to receive a fair trial. The Eighth and Fourteenth Amendments require the
jury in a capital case to hear any relevant mitigating evidence that the defendant
offers, including “any aspect of a defendant’s character or record and any of the
circumstances of the offense that the defendant proffers as a basis for a sentence
less than death.” (Frye, supra, 18 Cal.4th at p. 1015.) In turn, the court does have
the authority to exclude, as irrelevant, evidence that does not bear on the
defendant’s character, record, or circumstances of the offense. (Ibid.) “[T]he
concept of relevance as it pertains to mitigation evidence is no different from the
definition of relevance as the term is understood generally.” (Id. at pp. 1015-
1016.) Indeed, “excluding defense evidence on a minor or subsidiary point does
not impair an accused’s due process right to present a defense.” (People v. Fudge
(1994) 7 Cal.4th 1075, 1103 (Fudge).)
a. James Park’s testimony
James Park, a former correctional employee and prison condition expert,
testified for the defense about defendant’s likely ability to adjust well in a
maximum security prison if he were sentenced to life without parole. He was
asked on cross-examination whether he supported imposition of the death penalty.
He replied that he did not. On redirect, defense counsel asked why he was
opposed to the penalty, and the court sustained the prosecution’s objection to the
39
question, under Evidence Code section 352, finding the information irrelevant.
The trial court correctly concluded that Park’s views on the death penalty were
irrelevant to defendant’s ability to adjust to prison life or any other factor in
mitigation.
b. Jess Martin’s testimony
During a sidebar conference outside the presence of the jury, defense
counsel sought to proffer the testimony of Jess Martin, Mary Cagle’s former
boyfriend, (1) that Cagle asked Martin to retaliate against defendant’s family after
the murders, in an effort to show Cagle’s testimony was biased, and (2) that Cagle
was prone to manipulating men and committing welfare and other “scams” in
order to get her way. The court properly excluded the evidence as irrelevant.
(Evid. Code, § 352.)
Martin’s proposed testimony about Cagle’s behavior after the murders was
cumulative and did not help further explain defendant’s character, the facts of the
offense, or defendant’s prior record. (Frye, supra, 18 Cal.4th at pp. 1015-1016.)
The jury had been permitted to view Cagle’s record, and Dr. Kormos had testified
that defendant’s paranoid personality disorder was triggered in part by Cagle’s
manipulative tendencies. In addition, there is no indication that Cagle’s alleged
scams had anything to do with defendant or that defendant was even aware of her
behavior when he committed the three murders. The court’s exclusion of these
minor or subsidiary points did not amount to an abuse of discretion. (Fudge,
supra, 7 Cal.4th at p. 1103.)
6. Alleged Instructional ErrorsCALJIC No. 8.85
The jury was given the standard instruction on aggravating and mitigating
factors under CALJIC No. 8.85 and its requirement that the jury, in determining
penalty, shall be guided by and “shall consider all of the evidence which has been
40
received during any part of the trial of this case.” Defendant complains that, for
several reasons, the court deprived him of his right to due process and a reliable
sentence when it instructed the jury as to the statutory sentencing factors. As will
appear, we have repeatedly considered and rejected defendant’s claims in previous
opinions, and we see no reason to reconsider those decisions in light of
defendant’s arguments.
a. Argument that CALJIC No. 8.85 is misleading
Defendant first claims the instruction is misleading because it required the
jury to aggravate “the sentence upon the basis of statutory sentencing factors
which, as a matter of state law, were relevant solely as mitigators.” In particular,
defendant complains that CALJIC No. 8.85, repeating section 190.3, factors (d) to
(h), and (j), should have been deleted because they misled the jury into believing
that the absence of a mitigating factor becomes a factor in aggravation and the jury
would be confused by the inconsistent scheme of aggravating and mitigating
factors, potentially giving greater weight to the absence of mitigating factors.
We have considered and rejected the identical contention in several recent
cases, and no evidence suggests the jury was unable to properly apply the
instruction. (See, e.g., People v. Mendoza (2000) 24 Cal.4th 130, 191 (Mendoza);
People v. Kipp (1998) 18 Cal.4th 349, 380-381 (Kipp).) In addition, the jury was
also given defendant’s requested supplemental instructions that limited the jurors’
consideration to only those aggravating factors that actually existed: “You have
been read the list of aggravating circumstances which the law allows you to
consider if you find they have been established as required. These are the only
aggravating circumstances that you may consider. You are not allowed to take
into account any other facts or circumstances as the basis for deciding that the
41
death penalty would be appropriate in this case.” There is no indication the jury
misapplied CALJIC No. 8.85, as defendant suggests.
b. Factors (d) and (k)
CALJIC No. 8.85 factor (d), reflecting section 190.3, factor (d), asks the
jury to consider, if applicable, “Whether or not the offense was committed while
the defendant was under the influence of extreme mental or emotional
disturbance.” Defendant complains that the court erroneously refused to modify
the factor in order to inform the jury that it should consider “any mental or
emotional disturbance” or delete the factor altogether so that the jury would give
due weight to defendant’s mental illness. The trial court also rejected defendant’s
request to modify the catchall factor in section 190.3, factor (k), to include 10
items described by Dr. Kormos as the possible causes of defendant’s mental
illness.
As the People observe, the court did not err. CALJIC No. 8.85, as given,
permitted the jury to consider defendant’s mental illness even though it might have
amounted to an extreme condition, and defendant is not entitled to a pinpoint
instruction. (People v. Jenkins (2000) 22 Cal.4th 900, 1054-1055 (Jenkins).) In
addition, in refusing to modify the wording of section 190.3, factor (k) as reflected
by CALJIC No. 8.85, factor (k), the court placed no improper limitation on
mitigating evidence. Under the instruction as given, the jury could consider any
circumstance that extenuated the gravity of the crime, including Dr. Kormos’s
testimony on the causes of defendant’s mental illness. (See Jenkins, supra, 22
Cal.4th at p. 1055.)
c. Failure to instruct the jury not to double-count aggravating
factors
Defendant also complains that the court’s refusal to modify CALJIC No.
8.85, factor (a), reflecting section 190.3, factor (a), the circumstance of the
42
offense, led the jury to double count that factor by inviting the jury to count the
special circumstance he admitted twice, “once by itself, and once as a
circumstance of the crime.” The trial court rejected defendant’s proposed
alternative instruction telling the jury to “not consider an aggravating factor if you
have already considered the facts surrounding it as a circumstance of the crime.”
He adds that the prosecutor “implicitly coaxed the jury to count the special
circumstance twice.”
Defendant’s argument has no merit. As we held in People v. Ayala, supra,
at page 289, the possibility the jury would double-count the aggravating factors is
remote, in the absence of prosecutorial misconduct. Here, the prosecutor’s limited
explicit reference to section 190.3, factor (a) was that the items under the factor
“as the [c]ourt has instructed you, are all considered as one big aggravating
factor.” There is no reason for us to believe the prosecutor’s brief reference to
factor (a) in any way misled the jury.
d. Failure to admonish the jury
As discussed ante, at pages 12-15, during the jury’s first and only weekend
recess after the first week of trial, several jurors might have read and shared
newspaper articles about defendant’s crimes. We concluded that although there
may have been misconduct, it did not prejudice the verdict. Defendant also
complains that the trial court’s failure to admonish the jury prior to its weekend
recess, that it should not read newspapers or consult outside sources, led the jurors
to read the articles related to the crimes, and prejudiced the penalty verdict. (§
1122, subd. (b) [requiring the court, at each adjournment, to admonish jury not to
converse among themselves or anyone else on any subject connected with trial].)
Initially, we note that defendant failed to object to the court’s omission, and
therefore forfeited the claim on appeal. (People v. Campbell (1976) 63
43
Cal.App.3d 599, 609-610.) In addition, the jury was admonished several times
(while receiving jury instructions, and after closing and rebuttal arguments) that it
must not consult reference works or persons for additional information, must not
discuss the case with any person other than a juror after the case is submitted, and
must not seek or receive any evidence outside the evidence that was presented at
trial. The jury was also told that the Hutchinson newspaper article, which was an
exhibit in the case, was not in evidence and that “Headlines on a newspaper are
not evidence.” Also, as we have observed, although the jurors should not have
referred to any articles about the crimes, the fact that some jurors might have been
exposed to media reports did not prejudice the penalty verdict. Declarations from
several jurors satisfied the court that the exposure, if any, was limited in nature,
and not prejudicial to a fair verdict. Thus, although the court should have repeated
the admonition not to consult outside sources prior to the final weekend recess, we
do not find the omission was prejudicial. (See, e.g., People v. Heishman (1988) 45
Cal.3d 147, 174 [failure to admonish jury at time of adjournment not grounds for
reversal unless the defendant shows prejudice resulting from the omission].)
7. Motion to Modify the Verdict
Following the death verdict, the trial court denied defendant’s motion to
modify the verdict under section 190.4, subdivision (e). Defendant complains the
court erred in refusing to modify the verdict by failing to consider defendant’s
mental illness as the causative factor for the murders and in mitigation the fact that
he pleaded guilty. During the court’s consideration of defendant’s motion, the
court observed that “I am independently reweighing the evidence, trying to
determine whether the weight of the evidence supports the jury’s findings and the
verdict.” The court then described the defense evidence in detail and what
44
aggravating factors it deemed important. After concluding the aggravating factors
outweighed mitigating ones, the court denied the modification motion.
We find the court’s explanation for denying the motion sufficient. The
court reasonably found the evidence of defendant’s mental condition did not
influence his conduct. (Welch, supra, 20 Cal.4th at p. 775.) It also did not accept
defendant’s assertion that he pleaded guilty in order to mitigate his sentence, and
the court’s failure to refer to that fact was not error. (See People v. Memro (1995)
11 Cal.4th 786, 885.)
8. Constitutionality of Death Penalty
Defendant makes familiar arguments that the 1978 death penalty scheme is
unconstitutional. We have repeatedly rejected the claim that the statute does not
meaningfully narrow the class of persons eligible for the penalty. (Mendoza,
supra, at p. 191.)
Defendant also asserts that section 190.3, factor (a), is impermissibly vague
because the phrase “circumstances of the crime” can be interpreted too broadly to
encompass any fact. The United States Supreme Court has rejected the identical
claim that factor (a) is unconstitutionally vague. (Tuilaepa v. California (1994)
512 U.S. 967, 976.) This court has also found that “the purpose of the sentencing
selection factors set forth in section 190.3 is to guide the jury’s discretion in
deciding the appropriate penalty, not to distinguish a death-worthy case from one
that is not.” (Mendoza, supra, 24 Cal.4th at p. 192.)
In addition, defendant complains that the court should require the jury to
make written findings or achieve unanimity as to aggravating circumstances. We
have previously rejected the identical claim. (Kipp, supra, 18 Cal.4th at p. 381.)
Other claims defendant makes are largely repetitive of earlier claims, or
have been rejected in numerous cases. We touch on his key arguments. The court
45
need not have instructed the jury that aggravating circumstances must outweigh
mitigating circumstances beyond a reasonable doubt, and jury unanimity on the
findings was not required. (Mendoza, supra, 24 Cal.4th at p. 191.)
Intercase proportionality review is not required. (See People v. Crittenden
(1994) 9 Cal.4th 83, 157.) Conducting intracase proportionality review does not
assist defendant’s cause because the penalty is proportionate to his culpability; he
committed three brutal first degree murders of defenseless victims. (See Sanchez,
supra, 12 Cal.4th at pp. 84-85.) Use of unadjudicated criminal activity during the
penalty phase does not violate due process or lead to an unreliable verdict.
(People v. Carpenter (1999) 21 Cal.4th 1016, 1060-1061.) The presence of
certain adjectives in section 190.3 (“extreme” in factor (d) and “substantial” in
factor (g)) does not impermissibly limit consideration of mitigating factors in
violation of the federal Constitution. (Jenkins, supra, at pp. 1054-1055.) The
court need not designate what mitigating factors the jury may consider as
mitigating. (People v. Carpenter, supra, 21 Cal.4th at pp. 1063-1064.)
9. International Law Claim
Defendant’s final contention is that international law compels the
elimination of the death penalty. We have previously concluded, however, that
international law and treaties do not compel elimination of the death penalty in
this state, when it has been rendered in accordance with state and federal
constitutional and statutory requirements. (People v. Hillhouse (2002) 27 Cal.4th
469, 511; Jenkins, supra, 22 Cal.4th at p. 1055.)
46
III. DISPOSITION
We affirm the judgment.
CHIN, J.
WE CONCUR:
GEORGE, C.J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
BROWN, J.
MORENO, J.
47
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Ramos
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S030956
Date Filed: November 29, 2004
__________________________________________________________________________________
Court: Superior
County: Contra Costa
Judge: James J. Marchiano
__________________________________________________________________________________
Attorneys for Appellant:
Katherine Alfieri and Mark R. Vermuellen, under appointments by the Supreme Court, for Defendant and
Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Ronald A. Bass,
Assistant Attorney General, Ronald S. Matthias and Herbert F. Wilkinson, Deputy Attorneys General, for
Plaintiff and Respondent.
48
Counsel who argued in Supreme Court (not intended for publication with opinion):
Katherine Alfieri
P.O. Box 460238
San Francisco, CA 94146-0238
(415) 558-9300
Ronald S. Matthias
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5559
49
Opinion Information
| Date: | Docket Number: |
| Mon, 11/29/2004 | S030956 |
Parties
| 1 | The People (Respondent) Represented by Attorney General - San Francisco Office Ronald Matthias, deputy 455 Golden Gate Avenue, Suite 11000 San Francisco, CA |
| 2 | Ramos, William James (Appellant) San Quentin State Prison Represented by Katherine Alfieri Law Offices Of Katherine Alfieri P. O. Box 460238 San Francisco, CA |
| 3 | Ramos, William James (Appellant) San Quentin State Prison Represented by Mark R. Vermeulen Law Office Of Mark R. Vermeulen 755 Florida St., #4 San Francisco, CA |
| Disposition | |
| Nov 29 2004 | Opinion: Affirmed |
| Dockets | |
| Jan 8 1993 | Judgment of death |
| Jan 28 1993 | Filed certified copy of Judgment of Death Rendered 1-8-93. |
| Mar 7 1997 | Counsel appointment order filed Katherine Alfieri Is appointed to represent Applt on His Automatic Appeal, Including Any Related Habeas Proceedings. |
| Mar 27 1997 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Mar 31 1997 | Extension of Time application Granted To Applt To 6-2-97 To request Corr. of Record. |
| Mar 31 1997 | Filed: Suppl Decl of Service of request for Eot. |
| Jun 18 1997 | Compensation awarded counsel |
| Jun 23 1997 | Received: Copy of Applt's request to correct the Record, for Additional Record, to Examine Sealed Transcripts, & to Settle the Record (22 Pp.) |
| Jul 16 1997 | Compensation awarded counsel |
| Aug 13 1997 | Compensation awarded counsel |
| Aug 13 1997 | Compensation awarded counsel |
| Dec 23 1997 | Filed: Applt's request for Order Permitting Applt's Counsel to View Transcript of Confidential in Camera Proceedings from which Both the Prosecution And Defense were Excluded. |
| May 20 1998 | Filed: (Suppl) Proof of Service of Applt's request to Permit Appellate Counsel to Review Sealed Record. |
| Jun 1 1998 | Note: Received R.T. (Sealed Vol Xi, dated 11-22-92) and Sealed Exhibits Iii, Iv & V, & copy of Court's Exhibit #1. (Material Related to Pending Motion.) |
| Sep 2 1998 | Order filed: Applt Counsel's request for permission to View the Sealed Transcript of the Confidential in Camera Trial Court Proceedings Held on 11-2-92, Is Granted. Following Counsel's Review, the Transcript Shall be Resealed. |
| Sep 3 1998 | Note: R.T. and Sealed Exhibits received, 6-1-98, were returned to Superior Court. |
| Nov 24 1998 | Note: Returned 3 Boxes of Record to Superior Court (not in Compliance with Rules of Court). |
| Jan 25 1999 | Record on appeal filed C-4 (1,119 Pp.) and R-23 (3,340 Pp.) (Includes Material Under Seal). |
| Jan 25 1999 | Appellant's opening brief letter sent, due: 3-8-99. |
| Mar 1 1999 | Compensation awarded counsel |
| Mar 5 1999 | Application for Extension of Time filed To file AOB (no Decl Under Penalty of Perjury; Counsel Notified To Re-File). |
| Mar 15 1999 | Filed: (Suppl) Decl of Counsel in support of request for Eot. |
| Mar 16 1999 | Extension of Time application Granted To 5-7-99 To file AOB |
| May 10 1999 | Application for Extension of Time filed To file Aob. |
| May 13 1999 | Filed: Suppl Decl of Atty Alfieri in support of request for Eot. |
| May 26 1999 | Extension of Time application Granted To 6-7-99 To file AOB |
| Jun 4 1999 | Application for Extension of Time filed To file Aob. |
| Jun 14 1999 | Extension of Time application Granted To 8-6-99 To file AOB |
| Jul 22 1999 | Motion filed By Applt for appointment of Assoc. Counsel (Mark R. Vermeulen). |
| Jul 30 1999 | Filed: Letter from Atty Alfieri, requesting that motion for Association of Counsel be Withdrawn. |
| Aug 4 1999 | Application for Extension of Time filed To file Aob. |
| Aug 5 1999 | Extension of Time application Granted To 10-5-99 To file AOB |
| Aug 27 1999 | Change of Address filed for: Atty. Katherine Alfieri |
| Sep 13 1999 | Filed: Application for Appt of Associate Counsel. |
| Sep 22 1999 | Counsel appointment order filed Mark R. Vermeulen Is Hereby appointed as Associate Counsel to represent Applt William James Ramos, Jr for Both the direct Appeal and Related State Habeas Corpus/Executive Clemency Proceedings in the Above Automatic Appeal now Pending in this Court. |
| Oct 4 1999 | Application for Extension of Time filed To file Aob. |
| Oct 5 1999 | Extension of Time application Granted To 12/6/99 To file Aob. |
| Dec 2 1999 | Application for Extension of Time filed To file Aob. |
| Dec 15 1999 | Extension of Time application Granted To 2/4/2000 To file Aob. no further Extensions of time Are Contemplated. |
| Feb 1 2000 | Application for Extension of Time filed To file Aob. |
| Feb 4 2000 | Extension of Time application Granted To 3/6/2000 To file Aob. no further Eot Are Contemplated. |
| Mar 2 2000 | Application for Extension of Time filed To file Aob. |
| Mar 7 2000 | Extension of Time application Granted To 4/5/2000 To file Aob. no further Eot Are Contemplated. |
| Apr 4 2000 | Application for Extension of Time filed To file Aob. |
| Apr 11 2000 | Extension of Time application Granted To 5/5/2000 To file Aob. no further Eot Are Contemplated. |
| May 3 2000 | Application for Extension of Time filed To file Aob. |
| May 9 2000 | Extension of Time application Granted To 6/5/2000 To file Aob. no further Eot Are Contemplated. |
| Jun 5 2000 | Application for Extension of Time filed To file Aob. |
| Jun 9 2000 | Extension of Time application Granted To 6-12-2000 To file Aob. no further Extensions of time Are Contemplated. |
| Jun 12 2000 | Filed: Applt's Application to Permit filing of Oversized Aob. (307 page brief submitted Under Separate Cover) |
| Jun 15 2000 | Order filed: Applt's Application for Leave to file AOB in Excess of 280 pages Is Granted. |
| Jun 15 2000 | Appellant's opening brief filed (307 pages) |
| Jun 20 2000 | Compensation awarded counsel Atty Alfieri |
| Jun 20 2000 | Filed: Confidential Declaration of Atty Katherine Alfieri. |
| Jun 28 2000 | Filed: AOB Errata (Missing Pp. 86 and 102 for Copies). |
| Jul 7 2000 | Application for Extension of Time filed to file respondent's brief. |
| Jul 12 2000 | Extension of Time application Granted To 9/13/2000 to file resp's brief. |
| Aug 21 2000 | Counsel's status report received (confidential) |
| Sep 11 2000 | Application for Extension of Time filed to file resp's brief. (second request) |
| Sep 12 2000 | Extension of Time application Granted To 11/13/2000 to file resp's brief. |
| Oct 11 2000 | Counsel's status report received (confidential) |
| Nov 13 2000 | Application for Extension of Time filed To file resp's brief. (3rd request) |
| Nov 16 2000 | Extension of Time application Granted to 1-12-2001 to file resp's brief. |
| Dec 20 2000 | Counsel's status report received (confidential) |
| Jan 12 2001 | Application for Extension of Time filed To file resp's brief. (4th request) |
| Jan 18 2001 | Extension of Time application Granted To 3/13/2001 to file resp's brief. |
| Feb 27 2001 | Counsel's status report received (confidential) |
| Mar 13 2001 | Application for Extension of Time filed To file Resp.'s Brief. (5th request) |
| Mar 20 2001 | Extension of Time application Granted To 5/14/2001 to file Respondent's Brief. |
| Apr 6 2001 | Compensation awarded counsel Atty Alfieri |
| Apr 20 2001 | Counsel's status report received (confidential) |
| May 9 2001 | Application for Extension of Time filed To file respondent's brief. (6th request) |
| May 15 2001 | Extension of Time application Granted To 7/13/2001 to file respondent's brief. No further extensions of time are contemplated. |
| Jun 21 2001 | Counsel's status report received (confidential) |
| Jul 12 2001 | Application for Extension of Time filed To file resp.'s brief. (7th request) |
| Jul 17 2001 | Extension of Time application Granted To 8/3/2001 to file resp.'s brief. No further extensions of time are contemplated. |
| Jul 31 2001 | Respondent's Brief filed - (152 Pp.) |
| Aug 31 2001 | Counsel's status report received (confidential) from atty Vermeulen. |
| Sep 20 2001 | Filed: Motion for relief from default and application for extension of time to file reply brief. (1st request) |
| Sep 27 2001 | Order filed: Applt.'s motion for relief from default and application for extension of time to file reply brief are granted. Extension of time to 10/19/2001 to file reply. |
| Oct 15 2001 | Application for Extension of Time filed To file reply brief. (2nd request) |
| Oct 16 2001 | Extension of Time application Granted To 12/18/2001 to file reply brief. |
| Oct 22 2001 | Counsel's status report received (confidential) |
| Nov 9 2001 | Application for Extension of Time filed To file reply brief. (3rd request) |
| Nov 14 2001 | Extension of Time application Granted To 1/18/2002 to file reply brief. |
| Nov 14 2001 | Order filed: Due to clerical error, the order filed 10/16/2001 is amended as follows: Extension of time granted to 11/19/2001 to file reply brief. |
| Jan 14 2002 | Request for extension of time filed To file reply brief. (4th request) |
| Jan 18 2002 | Extension of time granted To 3/19/2002 to file reply brief. Counsel anticipates filing the brief by the third full week of 5/2002. Only one further extension for 60 addtional days is contemplated. |
| Mar 7 2002 | Counsel's status report received (confidential) |
| Mar 11 2002 | Request for extension of time filed To file reply brief. (5th request) |
| Mar 13 2002 | Counsel's status report received (confidential) |
| Mar 13 2002 | Extension of time granted To 5/20/2002 to file reply brief. Counsel anticipates filing the brief by 5/20/2002. Only one futher extension for 60 additional days is contemplated. |
| Apr 4 2002 | Compensation awarded counsel Atty Alfieri |
| May 3 2002 | Request for extension of time filed To file reply brief. (6th request) |
| May 7 2002 | Extension of time granted To 7/18/2002 to file reply brief. Counsel anticipates filing the brief by 9/16/2002. Only one further extension totaling 60 additional days will be granted. |
| May 13 2002 | Counsel's status report received (confidential) |
| Jun 12 2002 | Compensation awarded counsel Atty Alfieri |
| Jul 10 2002 | Counsel's status report received (confidential) |
| Jul 19 2002 | Application filed to: Permit late filing of extension of time to file applt.'s reply brief. |
| Jul 19 2002 | Request for extension of time filed To file applt.'s reply brief. (6th request) |
| Jul 24 2002 | Order filed Applt.'s application to permit late filing of extension of time to file applt.'s reply brief is granted. Extension of time granted to 9/16/2002 to file applt.'s reply brief. Counsel anticipates filing that brief by 10/1/2002. One further extension totaling 15 additional days will be granted. |
| Sep 6 2002 | Counsel's status report received (confidential) |
| Sep 16 2002 | Request for extension of time filed To file appellant's reply brief. (7th request) |
| Sep 19 2002 | Extension of time granted To 10/16/2002 to file appellant's reply brief. Extension is granted based upon counsel Katherine Alfieri's representationt that she anticiaptes filing that brief by 10/16/2002. After that date, no further extension will be granted. |
| Oct 11 2002 | Request for extension of time filed To file appellant's reply brief. (8th request) |
| Oct 17 2002 | Extension of time granted To 11/18/2002 to file appellant's reply brief. Extension is granted based upon unforseen circumstances affecting counsel's assisting entity. After that date, no further extension is contemplated. |
| Nov 4 2002 | Counsel's status report received (confidential) from atty Alfieri. |
| Nov 18 2002 | Request for extension of time filed To file appellant's reply brief. (9th request) |
| Nov 19 2002 | Extension of time granted To 12/18/2002 to file appellant's reply brief. Extension is granted in light of unforseen circumstances affecting counsel's assisting entity, and based upon Katherine Alfieri's representation that she anticipates filing that brief by 12/18/2002. After that date, no further extension is contemplated. |
| Dec 12 2002 | Request for extension of time filed To file appellant's reply brief. (10th request) |
| Dec 16 2002 | Extension of time granted To 1/6/2003 to file appellant's reply brief. Extension is granted based upon counsel Katherine Alfieri's representation that she anticipates filing that brief by 1/6/3003. After that date, no further extension will be granted. |
| Jan 6 2003 | Counsel's status report received (confidential) |
| Jan 6 2003 | Appellant's reply brief filed (90 pp.) |
| Mar 26 2003 | Change of contact information filed for: Notice of change of telephone and fax numbers for lead counsel Katherine Alfieri filed. |
| Apr 28 2003 | Counsel's status report received (confidential) |
| May 13 2003 | Supplemental record/transcript filed 1 volume reporter's transcript (8 pp. - hearing dates November 10 and 13, 1992) |
| Jun 18 2003 | Order filed re habeas funds request (confidential) |
| Jun 23 2003 | Counsel's status report received (confidential) (supplemental) from atty Vermeulen. |
| Aug 27 2003 | Counsel's status report received (confidential) |
| Oct 27 2003 | Counsel's status report received (confidential) |
| Dec 22 2003 | Counsel's status report received (confidential) |
| Mar 1 2004 | Counsel's status report received (confidential) |
| May 26 2004 | Counsel's status report received (confidential) from atty Vermeulen. |
| Jun 9 2004 | Oral argument letter sent advising counsel that case could be scheduled for oral argument as early as the September calendar, to be held the week of Sept. 7, 2004 in San Francisco. Any request for additional time to argue, notification of requirement for two counsel, or advisement of "focus issues" must be made no later than 10 days after the case has been set for oral argument. |
| Aug 11 2004 | Case ordered on calendar 9-8-04, 1:30pm, S.F. |
| Aug 23 2004 | Filed: appellant's "focus issue" letter, dated 8/19/2004. |
| Aug 25 2004 | Order filed The request of appellant for 45 minutes for oral argument is granted. |
| Aug 27 2004 | Filed: respondent's "focus issue" letter, dated 8-26-2004. |
| Aug 27 2004 | Received: letter from appellant, dated 8/26/2004, re additional authorities for oral argument. |
| Sep 8 2004 | Cause argued and submitted |
| Nov 29 2004 | Opinion filed: Judgment affirmed in full Majority Opinion by Chin, J. joined by George C.J., Kennard, Baxter, Werdegar, Brown & Moreno JJ. |
| Dec 10 2004 | Rehearing petition filed by appellant. (7,569 words; 31 pp.) |
| Dec 13 2004 | Time extended to consider modification or rehearing to 2/25/2005 or the date upon which rehearing is either granted or denied, whichever occurs first. |
| Jan 19 2005 | Rehearing denied Petition for rehearing DENIED. |
| Jan 19 2005 | Remittitur issued (AA) |
| Jan 20 2005 | Order filed (150 day statement) |
| Jan 24 2005 | Received: acknowledgment of receipt of remittitur. |
| Apr 14 2005 | Received: lettter from U.S.S.C., dated 4/7/2005, advising time extended to 5/19/2005 to file cert petition. |
| May 31 2005 | Received: Letter from U.S.S.C., dated 5/24/2005, advising cert perition filed on 5/18/2005 as No. 04-10286. |
| Jun 6 2005 | Counsel's status report received (confidential) from atty Vermeulen. |
| Jun 22 2005 | Compensation awarded counsel Atty Alfieri |
| Oct 3 2005 | Certiorari denied by U.S. Supreme Court |
| Mar 21 2006 | Counsel's status report received (confidential) from atty Vermeulen. |
| May 12 2006 | Counsel's status report received (confidential) from atty Vermeulen. |
| Sep 12 2006 | Counsel's status report received (confidential) from atty Vermeulen. |
| Dec 18 2006 | Counsel's status report received (confidential) from atty Vermeulen. |
| Feb 14 2007 | Counsel's status report received (confidential) from atty Vermeulen. |
| May 11 2007 | Counsel's status report received (confidential) from atty Vermeulen. |
| Sep 10 2007 | Counsel's status report received (confidential) from atty Vermeulen. |
| Sep 25 2007 | Counsel's status report received (confidential) "Supplemental" status report from atty Vermeulen. |
| Dec 24 2007 | Counsel's status report received (confidential) from attorney Vermeulen. |
| Mar 6 2008 | Counsel's status report received (confidential) from attorney Vermeulen. |
| Mar 17 2008 | Received: proof of service of confidential status report received on March 6, 2008. |
| May 14 2008 | Counsel's status report received (confidential) from attorney Vermeulen. |
| Aug 12 2008 | Letter sent to: attorney Mark Vermeulen requesting status report. |
| Feb 23 2009 | Counsel's status report received (confidential) from attorneys Vermeulen and Alfrieri, dated February 20, 2009. |
| May 4 2009 | Counsel's status report received (confidential) Appellant: Ramos, William JamesAttorney: Katherine Alfieri |
| Jun 29 2009 | Counsel's status report received (confidential) Appellant: Ramos, William JamesAttorney: Katherine Alfieri |
| Aug 11 2009 | Related habeas corpus petition filed (post-judgment) No. S175417 |
| Aug 13 2009 | Compensation awarded counsel Atty Alfieri |
| Briefs | |
| Jun 15 2000 | Appellant's opening brief filed |
| Jul 31 2001 | Respondent's Brief filed - (152 Pp.) |
| Jan 6 2003 | Appellant's reply brief filed |
