Docket No. S059531
People v. Redd
Filed 4/29/10
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S059531
v.
STEPHEN MORELAND REDD,
Orange County
Defendant and Appellant.
Super. Ct. No. 94CF1766
A jury convicted Stephen Moreland Redd of the first degree murder of
Timothy McVeigh (Pen. Code, §§ 187, subd. (a), 189), the attempted murders of
James Shahbakhti and Chris Weidmann (Pen. Code, §§ 187, subd. (a), 664), two
counts of second degree robbery (Pen. Code, § 211), and two counts of second
degree commercial burglary (Pen. Code, § 459).1 The jury found true the special
circumstances that the murder was committed while defendant was engaged in the
commission of robbery and of burglary. (§ 190.2, subd. (a)(17)(A), (G).) The jury
also found true the allegations that defendant personally used a firearm in the
commission of each of the seven crimes (§§ 1203.06, subd. (a)(1), 12022.5,
subd. (a)), and that defendant, with the specific intent to inflict such injury,
personally inflicted great bodily injury upon James Shahbakhti (§ 12022.7). The
1
All further statutory references are to the Penal Code unless otherwise
indicated.
1
jury also found that defendant previously had been convicted of five serious or
violent felonies. (§ 667.) Following the penalty phase of the trial, the jury
returned a verdict of death. Defendant moved for a new trial (§ 1181) and for
modification of the penalty to life imprisonment without the possibility of parole
(§ 190.4, subd. (e)). The trial court denied these motions and sentenced defendant
to death. The court also sentenced defendant to a term of 111 years to life in
prison with respect to the other charges of which he was convicted, and ordered
restitution in the amount of $10,000. (§ 1202.4, subd. (b).) This appeal is
automatic. (§ 1239, subd. (b).) For the reasons that follow, we affirm the
judgment in its entirety.
I. FACTS
A. Guilt phase evidence
1. The prosecution case
a. Burglary and Robbery at Sav-on Drug Store
On March 13, 1994, Dean Bugbee was working as a supervisor at a Sav-on
drug store in the City of Orange. Bugbee testified that he was counting currency
in the store‘s safe at approximately 10:50 p.m., when defendant approached the
safe, stated ―it‘s time for a till audit,‖ and held a gun over the door of the safe.
Bugbee stood up and faced defendant, with a distance of approximately two feet
between them. According to Bugbee, defendant removed between $2,000 and
$3,000 from the safe, placed it in his pocket, and exited from the store.
Bugbee confirmed that he described defendant to law enforcement officials
as a White male, 32 to 38 years of age, approximately five feet eight inches tall,
and approximately 210 pounds in weight, with dark brown hair. Bugbee recalled
that defendant was wearing sunglasses, light blue jeans, a dark blue zip-up sweat
jacket with a hood, and a baseball cap. The hood was over defendant‘s head when
2
he entered the store, and Bugbee could not discern whether the hair he saw was
natural or a wig. He confirmed at trial that defendant‘s weapon had a chrome
surface, and that he described it at the time of the events as possibly a .45
semiautomatic pistol.
On June 16, 1994, Bugbee met with representatives of the Orange Police
Department, who showed him photographs of six individuals. Bugbee confirmed
he told the police that ―number three looks the closest by the shape of his face. If
he was to put dark glasses on I would say it was him.‖ He acknowledged that,
unlike the person who robbed him, the individual in the third photograph had a
beard and mustache, but confirmed that he ―felt this was the person.‖2
b. Attempted murders outside Vons market
On May 31, 1994, James Shahbakhti was working as a uniformed but
unarmed officer for a private security company. He testified that at approximately
10:40 p.m., his dispatcher requested that he respond to a report of a transient
harassing customers at a Vons market in the City of Orange. When he arrived at
the shopping center in which Vons was located, a person who appeared to be a
transient attracted his attention. The individual was approximately 70 or 80 yards
from Vons, near a karate studio situated to the right of Vons and the Sav-on drug
store. Shahbakhti testified that he drove his marked security vehicle past the
individual and circled around, to give himself an opportunity to observe the
2
Michael Harper, a detective with the Orange Police Department, testified
that he assembled a photographic lineup, and that the individual in the third
photograph was defendant. He explained that although witnesses had described
the suspect as clean shaven, defendant had facial hair in the only photograph of
him available. Therefore, Harper had selected photographs of other individuals
who had facial hair, in order to present witnesses with an array of individuals who
were similar in appearance.
3
individual and to request the assistance of another private security officer. He then
left his vehicle and approached the individual, who, at this point in time, was in
the front of the Vons market. Shahbakhti testified that he asked the man what he
was doing there and, when the man did not respond, asked him for identification.
The man replied that he did not have any identification, and that he would leave
the area. Shahbakhti then asked the man to remain where he was.
Chris Weidmann, who was Shahbakhti‘s backup private security officer
and also unarmed, arrived at the scene in a marked patrol vehicle. Shahbakhti
testified that as Weidmann exited from his vehicle, the man removed a gun from
his jacket pocket and pointed it at Shahbakhti‘s face. Shahbakhti estimated that he
and the man were standing two to three feet apart, and he testified that he could
see the man‘s face clearly. Shahbakhti next recalled seeing Weidmann running
toward Shahbakhti‘s vehicle, and then seeing the man fire one or two shots at the
vehicle, from which Weidmann was attempting to retrieve a cellular telephone.
Shahbakhti further testified that as the man fired at Weidmann, Shahbakhti began
running away from the man. As he ran, he heard three to five more shots and was
struck in the back. Shahbakhti also testified that the bullet entered his shoulder
muscle, hit a bone, tore cartilage, collapsed one of his lungs, and hit his clavicle.
The next day, Shahbakhti was interviewed by Detective Michael Harper of
the Orange Police Department, who showed him the same photographic lineup
viewed by Bugbee. (See ante, fn. 2.) Shahbakhti testified that one of the six
photographs ―looked just pretty much like who the individual was.‖ He confirmed
that he told Harper ―I can‘t be one hundred percent, but I‘d say number three,‖ and
he was ―90 to 95 percent sure‖ that the third photograph was of the man he
encountered at the Vons market. Shahbakhti also confirmed that the man wore a
dark blue hooded sweatshirt with a front zipper, a black or navy blue watch cap,
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blue jeans, and what appeared to be a woman‘s dark-colored shoulder-length wig.
Finally, he testified that the man‘s weapon was a chrome semiautomatic handgun.
Chris Weidmann testified that as he approached Shahbakhti and the man
with whom Shahbakhti was speaking, he heard the man state that he was leaving,
and Shahbakhti telling the man that he needed some information from him.
Weidmann walked around a large pillar in front of the Vons market as he
approached them, and encountered the man as the man walked around the pillar.
Weidmann could not see Shahbakhti, who was behind the pillar, and did not see
the man‘s gun until the man pointed it at Weidmann‘s forehead. Weidmann
recounted that he raised his hands and said to the man, ―you‘re the boss,‖ and the
man then lowered his gun and turned back toward Shahbakhti. Weidmann
testified that he then ran to Shahbakhti‘s vehicle, because it had a cellular
telephone inside. After Weidmann entered 911 and pressed the ―send‖ button, he
looked up and saw the man standing by the passenger side of the vehicle, pointing
his gun at Weidmann‘s head. Weidmann testified that the man rapidly fired three
shots, all of which struck the vehicle occupied by Weidmann. Weidmann
explained that when he felt broken glass from the windshield strike his face, he
grabbed his face to make it appear that he had been hit by gunfire, rolled out of the
vehicle, and pretended to be dead. He testified that he heard four additional shots
from the same gun but, until the man fled, he was unaware Shahbakhti had been
shot.
Weidmann testified that he was unable to identify in photographs the man
who shot at him, but confirmed that the man was wearing a woman‘s brown
shoulder-length wig and a blue or purple hooded sweatshirt. He described the
man‘s gun as a chrome nickel-plated automatic weapon that he thought to be a
nine-millimeter firearm.
5
Joseph Loya testified that on May 31, 1994, at 10:45 p.m., he was parking
his vehicle approximately 100 yards from the back parking lot of the Vons market
when he saw a man wearing dark clothing and a zippered sweatshirt with a hood
jog out of an alley. The man stopped next to what appeared to Loya to be a light
blue 1984 Ford Tempo. Loya testified that the man removed a mask, or perhaps a
hat and a wig, exposing a white face and clean-shaven head. The man then
entered the light blue vehicle and departed, driving in a normal manner. Loya
followed the man‘s vehicle in his own vehicle, and recorded the vehicle‘s license
plate number. Loya followed the vehicle for approximately three minutes, during
which time the man began speeding and driving erratically, and then Loya
contacted the Orange Police Department and reported what he had witnessed.
Detective Harper testified that the vehicle with the license plate number
provided by Loya was a blue Mercury Topaz, which is ―basically the same model‖
as a Ford Tempo, and that the vehicle was registered to defendant. Harper
testified that he requested the Fullerton Police Department to look for defendant at
an apartment complex in the City of Fullerton.
Linda King, a police officer with the City of Fullerton, testified that at
approximately 1:00 a.m. on June 1, 1994, she received a request to travel to an
address on Deer Park Avenue in the City of Fullerton with the objective of
locating defendant‘s vehicle. She recalled that as she was driving on Deer Park
Avenue, she saw a white male exit from a driveway, cross behind her patrol unit,
and walk into the apartment complex across the street. She made eye contact with
the individual and kept driving. After approximately five minutes, she saw in a
carport a vehicle bearing the license plate number she had been provided.
Thereafter, she was shown a photograph of defendant, and recognized him as the
person who had crossed the street as she drove on Deer Park Avenue.
6
King testified that police officers then approached defendant‘s apartment
and observed that the door was open, all the lights were on, and defendant was not
present. Thereafter, Detective Harper searched defendant‘s apartment. Harper
testified that he collected various items, including a brown wig and two live
rounds of ammunition for a .380-caliber pistol. He confirmed that a .380-caliber
weapon had been used to shoot Shahbakhti, and that the ammunition found in
defendant‘s apartment was of the same type and brand as was found at the Vons
market. Harper explained that he also was investigating the robbery of Dean
Bugbee, and collected evidence that he thought might be related to that crime,
including a blue baseball-type cap. He also found two empty boxes, each of which
previously had held a laser sight designed to be attached to a firearm, and receipts
for two magazines for a .380-caliber handgun. Finally, in the blue Mercury Topaz
that King located in a carport at the apartment complex, Harper found a watch cap
and a bill of sale for the vehicle, listing defendant as the purchaser.
c. Burglary, robbery, and murder at Alpha Beta market
Brenda Rambo testified that she was working at a cash register in an Alpha
Beta market on July 18, 1994, at approximately 10:40 p.m., when she observed a
man enter the store wearing a woman‘s wig. The only other employee on duty at
that time was Rambo‘s supervisor, Timothy McVeigh. Rambo testified that the
man looked at her, walked around behind her checkout stand, and then came into
her checkout aisle and set down a pack of gum. She related that ―[a]fter I rang it
up he threw down a dollar and told me that I‘d have to break it.‖ She turned to put
the dollar in the cash register, and ―[t]he next thing I know I had a gun at me.‖
According to Rambo, the man did not say anything, but reached across the
conveyor belt, removed a tray of money from the cash register‘s drawer, and set it
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on the belt. He began removing money with his left hand, as he held the handgun
in his right hand. Rambo testified that the robber did not appear to be nervous.
Rambo testified that during the time defendant was removing money from
the cash tray, she said ―Tim.‖ She recalled that several seconds passed, and then
McVeigh appeared at her checkout stand. She related that McVeigh grabbed the
man‘s left wrist and placed his other hand around the man‘s shoulder. The man
turned toward McVeigh, and the two men struggled for a short period of time.
Rambo then heard the gun discharge. The two men let go of each other, and
McVeigh stepped back and fell a few feet away from where the struggle occurred.
Rambo recalled that the man again pointed the gun at her, and she knelt down and
―asked him please don‘t.‖ She described the man as ―calm‖ after McVeigh was
shot, and testified that he turned and left the store with the money he had removed
from the tray.
Rambo testified that the robber wore a wig, a baseball hat, clear-framed
dark plastic glasses, a purple-pinkish long-sleeved shirt, and jeans. She confirmed
that on July 21, 1994, she was asked by Detective Brakebill of the City of Brea
Police Department to review a photographic lineup of six individuals. She
selected the second photograph, which is identical to the photograph of defendant
that appeared in the third position in the lineups shown to Bugbee and Shahbakhti.
Rambo testified that the person in the second photograph ―appeared to be similar,
very similar to the person‖ who robbed her. She confirmed that the only
significant differences between the person in the photograph she chose and the
person who robbed her was that the latter did not have a beard or mustache.
Kelly Carpenter, a City of Brea police officer, testified that he received a
request for emergency assistance at approximately 10:40 p.m. on July 18, 1994.
When he arrived at the Alpha Beta market four minutes later, he saw a man lying
on the floor and Brenda Rambo standing beside the man, screaming and crying.
8
At trial, he reviewed his police report setting forth Rambo‘s description of the
events on the evening of the incident, which was substantially similar to Rambo‘s
testimony at trial. Carpenter also testified concerning the crime scene, including
the open cash drawer, the money tray and gum on the conveyor belt, a shell casing
in the aisle from a .380-caliber semiautomatic handgun, and a pair of glasses
Carpenter found in the store parking lot.
Paul Diersing testified that he was the manager of the Alpha Beta market
where McVeigh was shot. He conducted an inventory after the incident, and
determined that $156 was missing.
Richard Fukumoto, the pathologist who conducted the autopsy upon
McVeigh, testified that the cause of death was acute hemorrhaging that resulted
from a gunshot wound through the victim‘s abdominal aorta and stomach.
According to Fukumoto, the entry wound reflected that the firearm was discharged
within three inches of the victim. He further explained that the bullet entered the
front of the victim‘s body, traveled from the victim‘s left to right side, front to
back, and downward, and was recovered from the victim‘s right back side. He
confirmed that the wound was consistent with testimony indicating that two men
were grappling and a gun discharged in close proximity to the victim.
d. The apprehension of defendant and search of his vehicle
Robert Jansing, a police officer with the United States Park Police in San
Francisco, testified concerning his arrest of defendant on March 6, 1995. He
explained that he noticed the registration tag was affixed poorly to the license
plate of a vehicle in which defendant was seated, and he asked his dispatcher to
investigate whether the vehicle was registered. When Jansing learned that the
vehicle‘s registration had expired, he requested that defendant produce his vehicle
registration and driver‘s license. After defendant failed to produce either, Jansing
9
asked defendant to step out of the vehicle, which he did, and Jansing placed him in
handcuffs. Pursuant to the arrest, Jansing searched defendant and found
defendant‘s driver‘s license. Jansing informed his dispatcher that the individual‘s
name was Stephen Redd, and learned that defendant was wanted for murder and
robbery in Orange County. Jansing testified that he received permission from his
supervisors to impound the vehicle, and he then conducted an inventory search.
Among the items he found in the trunk of the vehicle were a .380-caliber
semiautomatic pistol with a laser sight attached, an AR-15 rifle with a laser sight
attached, and wigs.3
Dennis Fuller, a forensic scientist with the Orange County Sheriff‘s
Department‘s crime laboratory, testified that he analyzed the six bullet casings and
the two bullets recovered from the scene of the Vons market assaults, the bullet
casing recovered from the Alpha Beta market, and the bullet recovered from
Timothy McVeigh‘s body. His analysis led him to conclude that all of the bullets
and casings were fired from the .380-caliber semiautomatic handgun recovered
during the arrest of defendant. Fuller also testified that his testing established the
weapon operated properly, would not fire when the external safety mechanism was
placed in the position to prevent the weapon from firing, would not fire without
someone pulling on the trigger, and did not have a ―hair trigger.‖
Jerry Brakebill, an officer with the City of Brea Police Department, was the
primary detective assigned to investigate the murder of Timothy McVeigh. He
testified concerning the items found in defendant‘s vehicle at the time of the arrest.
These items included: two magazines for .380-caliber ammunition; .380-caliber
3
Jansing‘s interactions with defendant are described more fully below, in
connection with defendant‘s claim that the evidence seized by Jansing should have
been suppressed.
10
ammunition; two sights that matched the empty sight boxes found in defendant‘s
apartment and that were attached, respectively, to a .380-caliber weapon and an
AR-15 firearm; a blue ―beanie‖ cap; a baseball cap; a purple-hooded sweater with
a zipper; sunglasses, and women‘s wigs, two brown and one blond.4
2. The defense case
Defendant presented no evidence at the guilt phase.
B. Penalty phase evidence
1. The prosecution case in aggravation
The prosecution presented testimony concerning five armed robberies
committed by defendant in 1982. Gay Swanberg testified that defendant robbed
her on September 30, 1982, as she worked as a cashier at an Akron store in the
City of Orange, and that he ―seemed very calm, matter of fact.‖ Dennis Misko and
Laura Meraz testified that defendant robbed them on October 2, 1982, as they
worked at a Federated store in Santa Ana. Gilbert Quihuiz testified that defendant
4
Although apparently unconnected to the charged crimes, numerous other
items found in defendant‘s vehicle also were identified by Brakebill at trial,
including a bulletproof helmet, bulletproof body armor, smoke grenades, an M-
203 grenade launcher that attaches to an AR-15 firearm, ammunition and clips for
an AR-15 firearm, a stun gun, an inoperable ―homemade‖ Sturm, Ruger-type
firearm, and parts of other types of weapons. The jury was admonished with
respect to the items found in defendant‘s vehicle: ―The only items which you may
consider are those which are relevant to the crimes alleged in the information.
Namely, any clothing which may relate to that worn by the perpetrator of any of
the charged crimes, such as hats, wigs, or glasses, which may have been used by
the perpetrator of any of the charged crimes, a .380 semiautomatic handgun with
laser sights, and any .380 ammunition which may have been used by the
perpetrator of any charged crime. [¶] You are hereby instructed that you are not
to consider any other items seized from the vehicle in San Francisco in any
fashion. [¶] You must not discuss any of those items or allow them to enter into
your deliberations in any way. Those items are not relevant to your determination
of the issues presented in this case.‖
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robbed him and other bank tellers on October 6, 1982, at a Bank of America
branch in Santa Ana. According to Quihuiz, as defendant was leaving, he said,
―No one should follow me out the door, I shoot people,‖ ―My landlord is going to
love me,‖ and ―You all have a nice day because I‘m going to have a great one.‖
Gary Stewart testified that defendant robbed him and other bank tellers on
October 27, 1982, at Southern California Bank in the City of Orange. According
to Stewart, before defendant left he said: ―Unemployment is great. I used to be
poor. Now I‘m rich. I do this all the time.‖ As he left, he said ―Have a good
day.‖ Everett Caldwell, a customer who was inside the Southern California Bank
during the robbery, testified that defendant was ―a very calm person,‖ seemed
―jovial,‖ and appeared to be having a good time. According to Caldwell,
defendant told the persons in the bank to wait ten minutes before leaving or he
would ―blow them away.‖ Finally, Michael Canzoneri, Sharon Snowden, and
Jacquelyn Coffery testified that defendant robbed them on November 10, 1982, as
they worked as tellers at the East La Habra branch of Security Pacific Bank.
Canzoneri recalled that defendant was ―extremely calm‖ until Snowden informed
him that she was not open and that he should go to another window. Snowden
testified that defendant pounded on her counter, demanded that she come to her
window, and told her, ―You bank tellers are an endangered species.‖ She also
recalled that when defendant left, he said, ―Have a nice day.‖ Coffery testified
that defendant pushed a customer aside to get to Coffery‘s window, made
threatening remarks, and did not seem nervous.
Six police officers testified concerning their pursuit and apprehension of
defendant as he fled Security Pacific Bank on November 10, 1982. Officer John
Reese arrived at the bank in uniform and pursued defendant on foot. Reese
testified that defendant stepped out of a bush where he was hiding and fired ―a
burst of gunfire‖ in Reese‘s direction, hitting Reese in the leg. Defendant then ran
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down a dead-end alley, and a brown vehicle drove out of the alley. Officers John
West and Raymond Breuer testified that as they pursued the brown vehicle in their
marked police vehicles, defendant fired shots out of the back window of the
vehicle. One bullet hit West‘s windshield, and bullets hit Breuer‘s headlight frame
and a tire. The pursuit continued onto freeways, at speeds in excess of 100 miles
per hour. West estimated that 15 to 20 police vehicles were involved in the
pursuit, and Breuer estimated that the pursuit continued for 45 to 50 miles, with
sporadic gunfire throughout. Officer Jose Talavera testified that when the brown
vehicle turned around and came back toward his marked police vehicle on the
freeway, defendant made eye contact with Talavera, waved at Talavera, and
appeared to be smiling. Officer Mike Cordua testified that he pursued the brown
vehicle in a helicopter, fired a single round, and hit the driver‘s side mirror. After
the helicopter circled around, Cordua saw that the vehicle was parked and the
driver was holding both of his arms out the window.
Officer John Rees (not the Officer John Reese previously referred to)
testified that he searched defendant‘s vehicle and home after defendant was
apprehended on November 10, 1982. Rees found four weapons in the front
passenger compartment that were loaded and capable of being fired — an AR-7
Explorer .22-caliber semiautomatic rifle, a Browning high-power nine-millimeter
semiautomatic pistol, a Ruger mini-14, .223-caliber ―converted to full automatic,‖
and a .308-caliber rifle. He also found evidence of at least 22 expended casings
from a .223-caliber weapon and a nine-millimeter weapon. In defendant‘s home,
Rees found two more firearms — a seven-millimeter mag rifle and a Tager, AP-
75, .22-caliber, semiautomatic rifle — as well as abundant amounts of
ammunition, including 17 20-round boxes of .223-caliber ammunition, 96 .22-
caliber rounds, 85 nine-millimeter rounds, and 39 seven-millimeter rounds. He
also found four wigs.
13
Peter De Bernardi, a California Highway Patrol officer, testified that he
issued a speeding citation to defendant on November 8, 1982. Although defendant
had been traveling at a speed in excess of 75 miles per hour, De Bernardi‘s citation
stated that defendant had been traveling 60 miles per hour in a 55-mile-per-hour
zone. Approximately seven months later, De Bernardi received a letter from
defendant, with a return address of the California Men‘s Colony in San Luis
Obispo. The letter informed De Bernardi that defendant had not shot him because
De Bernardi was a ―pleasant sort of guy.‖5
Timothy McVeigh‘s immediate family testified concerning their loss. His
sister, Cheryl McVeigh, who was one year younger than the victim, described him
as a ―great brother‖ and her ―best friend.‖ He enjoyed fishing and building model
airplanes. As an adult, he helped Cheryl, who was a single mother, with her three
children, and took them on outings. He spoke about having children, and she
joked with him that she would spoil his children the way he spoiled hers. She
testified that she could speak with him about anything, and missed hugging him
5
The letter informed De Bernardi that defendant had had automatic and
semiautomatic weapons underneath ―junk‖ on his front and back seats. It stated
that defendant ―had been perpetrating bank robberies with an automatic rifle in
Orange County,‖ and was struggling with two personalities at the time of his
crimes — a ―regular Mr. Nice Guy,‖ and one with a violent nature. ―When you
pulled me over, my negative side had me reaching for my automatic (sawed off)
rifle (with 40 round clip). Fortunately, Mr. Nice Guy dominated & a ‗let‘s play it
by ear‘ truce was in effect. [¶] You were a pleasant sort of guy. The kind of
person this planet sees to[o] infrequently. Mr. Nice Guy gave you a pass.‖ In a
footnote, he added that, as De Bernardi was writing the citation, ―the negative
persona was conjuring thoughts of old traffic warrants & notification thereof via
radio. Nice Guy persona ‗said‘ in essence ‗let the chips fall as they may‘ & I
pushed the automatic rifle under the junk.‖ In a postscript, defendant revealed that
he had ―engaged numerous departments in gunfire after a bank robbery,‖ and had
seriously wounded an officer with the same automatic rifle that he had had his
hand on when De Bernardi approached him.
14
and hearing his encouraging words. She described receiving a telephone call
informing her that her brother had been shot, and learning from the surgeons that
he had died.
The victim‘s brother, Michael McVeigh, who was four years younger than
him, testified that his older brother took him along as a child to his school
activities and let him borrow his car for the senior prom. Michael remembered
watching his brother caring for Michael‘s young daughter, and looking forward to
the day when Timothy also had a family. Michael testified that his brother cared
for his mother and his grandfather, and Michael described the horror of realizing
he no longer had a brother.
Timothy‘s father, James McVeigh, a retired police officer, described
Timothy as ―a good boy,‖ ―a fun kid,‖ and ―just a nice guy to be around.‖ He
stated there is a hole in his heart that will never be filled, and not a day goes by
that he does not think of his son.
The victim‘s mother, Carol McVeigh, testified that she and her son had
been close throughout his life. He had a gift of humor and loved to tease. He was
active in drama in high school and represented the school at Boys State in
Sacramento. They took trips together, and he frequently called and visited her.
He loved to read, and ―we could talk and share so many different things.‖ He had
taken flying lessons in his spare time, and had earned his certification as a jet pilot.
He was a hard worker, and she ―couldn‘t ask for a better [son].‖ On the night he
was shot, he had spoken to her on the telephone at 8:00 p.m., but had been called
away. When the telephone rang later that evening, she thought it was he calling
back, but instead she learned he had been shot. Upon hearing this, she felt as if
she had died inside. She stated she wanted to hold him one more time, and
regretted she did not have an opportunity to say goodbye to him.
15
2. The defense case in mitigation
Defendant‘s mother, brother, and three children testified concerning their
relationships with defendant. His mother, Rosemary Redd, testified that she was a
stay-at-home mother , and defendant was her first-born child. The family was
―intact‖ and ―close‖ while defendant was growing up, and defendant had ―a
regular happy childhood.‖ His grandparents lived nearby and had a close
relationship with defendant. Defendant was ambitious and, at 12 years of age,
began shining shoes to earn money. He performed well in school and had no
significant behavior problems. He graduated from high school in 1963, resided at
home while attending junior college, moved out of the family home in 1965 when
he married, worked with his father and grandfather in the real estate business, and
in 1967 attended the Los Angeles County Sheriff‘s Department Academy. His
mother regularly visited defendant in prison in the 1980‘s, and had ―constant‖
correspondence with him during his imprisonment. Defendant continued to write
to her at the time of the trial proceedings in the present case.
Richard Redd, defendant‘s brother, testified that he and defendant grew up
with their parents and maternal grandparents on an acre of land that contained an
orchard and a swimming pool. Their paternal grandparents resided nearby, and
the family was close. He recalled that defendant was very popular and had many
friends. He also testified that defendant was proud when he became a Los
Angeles County Sheriff‘s deputy, and initially enjoyed his occupation. Thereafter
his personality changed, and he became ―tougher‖ and ―more macho,‖ especially
after he was assigned to the Firestone Station. He recalled that defendant
separated from his wife shortly before or at the same time that he resigned from
his employment with the sheriff‘s department, and that the breakup of his marriage
and the termination of his employment ―hit [defendant] pretty hard.‖ He testified
that after leaving the sheriff‘s department, defendant worked hard — sometimes
16
16 hours a day — constructing homes, apparently with an understanding that he
would receive a percentage of the profits upon the sale of the homes. According
to Richard, defendant could ―build everything,‖ but was ―not too good‖ as a
businessman and ended up with little at the conclusion of these construction
projects. When defendant had no more funds and could not find employment, he
resided with their grandmother in Willits and with Richard in Whittier. While
residing with Richard, defendant possessed firearms, read ―macho‖ literature, and
talked of ―going off to war.‖ Richard testified that he was shocked when he saw
defendant on the television news after defendant was pursued by police officers
through four counties. Richard also testified that after defendant was released
from prison, he resided with Richard and sought employment, but defendant was
required to inform potential employers that he had been in prison. Richard stated
that defendant had saved Richard‘s life when the family‘s house had filled with
gas, and defendant opened a window, put Richard‘s head out the window, and
pounded on Richard‘s back. Richard confirmed that he had ―very strong personal
feelings‖ for defendant.
Michael Redd, defendant‘s older son, testified that his parents divorced
when he was approximately six years of age. For most of his life, Michael resided
with his mother, but for approximately three years, when he was nine to 12 years
of age, he resided with defendant. Defendant taught his two sons construction
skills as he worked on the family dwelling. He also taught them to ski and surf,
and they played chess and had pillow fights. At 12 years of age, Michael moved
with his mother to Willits. Michael testified that defendant visited the family in
Willits and resided and worked for a time in that community, but that employment
―was pretty scarce.‖ Michael maintained some contact with defendant when
defendant went to prison in 1983, but had seen him on only three occasions during
the 15 years that preceded the trial in the present case. When asked to describe the
17
value of his relationship with defendant, Michael testified that defendant ―taught
me how to work. I wouldn‘t be in charge of a [grocery store‘s night] crew if it
wasn‘t for [defendant].‖ He added that ―if we ever needed [defendant], he would
be there‖ and ―wanted to do good for us,‖ and that defendant ―did his best to do
what he could.‖ He confirmed that he loved defendant very much.
Sean Redd, defendant‘s younger son, testified that he learned his work ethic
from defendant, and that there was ―a lot of love in our family.‖ He recalled the
three years during which he and his brother resided with defendant, and helped
work on a house, as a time when ―money was tight‖ but defendant ―did everything
he could for us.‖ Defendant visited and wrote to the family when they were in
Willits, and continued to write occasionally. Sean, who had been in the military
for 10 years at the time of the trial in 1996, estimated that he had seen defendant
on four or five occasions since 1980. He stated that his relationship with
defendant has value, that he loves defendant very much, and ―it‘s just hard on the
family.‖
Melissa Redd, defendant‘s daughter, testified that she resided with
defendant for approximately two weeks during her childhood. She recalled that he
let her help build his house and took the children to the movies and to the beach.
He was nice to her and would not let her brothers pick on her. She recalled that he
resided in Willits for a time with her grandmother, but was unable to find work in
that community. She stated she had not seen defendant frequently during the
preceding 14 years, but he wrote letters to her and drew pictures for her children.
She stated she still loved defendant, and ―what I did know of him, he was a
positive figure in my life.‖
Two witnesses testified concerning defendant‘s activities between the time
of McVeigh‘s murder and defendant‘s arrest. Eugene Lin testified that he met
defendant when defendant was picking up cans and bottles from the trash by Lin‘s
18
hotel. Lin offered defendant (who identified himself by his true name)
employment performing maintenance on the hotel. Defendant resided in Lin‘s
hotel and worked for Lin from September 17 to October 3, 1994. Defendant left
suddenly, without collecting $80 that was due him. On May 9, 1995, Lin received
a letter from defendant, asking that Lin send the money to defendant‘s mother.
Richard Lum, who worked at a recycling center in San Francisco, recalled that
during a period of eight months or longer, in late 1994 and early 1995, defendant
redeemed cans and bottles at the center at least twice a week. Lum testified that
defendant used the name ―Redd.‖
Three former deputies with the Los Angeles County Sheriff‘s Department
testified concerning their experiences working with defendant in the department.
Allen Campbell and defendant served together for most of the three years that
Campbell was assigned to the Firestone Station, and subsequently for a year or
longer at the West Hollywood Station. Campbell described the area served by the
Firestone Station as a ―war zone,‖ and stated that four deputies were killed there in
a period of two or three years. He testified that the violence he encountered as a
sheriff‘s deputy affected his marriage and affected him physically, and that he
retired on disability in 1980.
Wiley Newman also worked at the Firestone Station, which he described as
a ―combat zone.‖ He testified that he was shot while assigned to that location, and
did not receive counseling. He and defendant were partners for approximately one
week while they served at Firestone. During that week, they responded to a fire at
a residence. Newman ran into the burning home to save an occupant, despite
being told by the fire department that it was too hot to enter. Defendant remained
outside. They both received Medals of Valor for saving the occupant.
Thomas Grant testified that he was employed with defendant at the West
Hollywood Station in 1970 or 1971. He recalled that defendant was at the scene
19
of a vehicle fire in which an occupant of the vehicle perished. The next day, at a
station meeting, defendant told his colleagues the vehicle door was jammed, and
that he had retreated because of the heat and had watched a conscious passenger
burn to death. According to Grant, defendant cried while describing the events
and told his colleagues it occurred to him later that he could have broken the
window with his flashlight or the butt of his gun. According to Grant, defendant
―felt this man died because of him because he had panicked.‖ Grant stated he
never had seen an officer cry.
Robin Klein, a clinical psychologist, testified that law enforcement officers
are exposed to many traumatic events, and that there is peer pressure within that
profession to be strong and not to obtain counseling. According to Klein, law
enforcement agencies in Southern California, prior to 1975, did not provide
meaningful psychological assistance to officers. He stated that officers ―have a
much higher rate of suicide than the average person,‖ as well as ―a significant
level of divorce.‖ He stated that he would expect a ―horrendous‖ psychological
impact upon a person who witnessed someone die in a fire, particularly if the
person is ―paid to rescue people,‖ and that it is not unusual for an officer ―to resign
usually within a couple of years after having been involved in a major traumatic
incident.‖
Michael Mantell, a clinical psychologist, reviewed records concerning
defendant, including school records, his application to the Los Angeles County
Sheriff‘s Department, and the department‘s background investigation. Mantell
testified he found nothing indicating any underlying psychological problems.
Evaluations of defendant at Firestone Station in 1969, 1970, and 1971 indicated
that his performance was ―competent.‖ His first evaluation at West Hollywood
Station, in October 1971, reflected that his performance was between
―outstanding‖ and ―competent.‖ Defendant again was found ―competent‖ in his
20
1972 evaluation, but the report noted some inadequacies in his compliance with
rules, a failing that the report attributed to personal problems. Defendant
voluntarily resigned on October 8, 1973, the day after the West Hollywood Station
commander recommended that he undergo psychiatric evaluation. Mantell
testified that a document dated October 19, 1973, indicated that defendant‘s
conduct had become undependable, and that defendant required ―constant and
significant supervision.‖ The document also stated that he was ―visibly
depressed.‖ Mantell perceived a correlation between defendant‘s having
witnessed the vehicle fire and his job performance. Mantell also noted that
defendant‘s divorce proceeding was pending from November 1972 to August
1973, and opined that ―a psychological deterioration ha[d] been taking place, . . .
through and including the divorce.‖ Mantell testified that he would be surprised if
any police department would hire a person with defendant‘s record at the sheriff‘s
department. Finally, Mantell explained the term ―anniversary reaction‖ as
describing psychological symptoms that may develop one year, or many years,
after a traumatic event. According to Mantell, it appeared that an incident of
indecent exposure committed by defendant occurred approximately one year after
he resigned from the sheriff‘s department and approximately two years after he
witnessed the vehicle fire.
Norman Morein, a sentencing consultant, was retained to review documents
related to defendant‘s previous imprisonment, from April 1983 to April 1993, and
to evaluate defendant‘s adjustment to prison. He testified that defendant had ―one
of the best records I‘ve ever seen,‖ except for an escape attempt in 1986, when
defendant cut through the bars of his cell, reached the prison compound, scaled
one fence, began to scale a second fence, and was shot in the shoulder by a prison
guard after ignoring the guard‘s command to halt and the guard‘s warning shot.
According to Morein, defendant had no record of any assaultive or disrespectful
21
conduct. In addition, defendant performed well at his work assignments,
participated in vocational training in electronics and machine shop, and earned
good grades in community college courses. Defendant was elected by inmates to
the ―Men‘s Advisory Council‖, which represented inmates in meetings with prison
staff. Morein testified that defendant did not receive any psychiatric or
psychological counseling while in prison, but was counseled for anger
management beginning in December 1993. Morein confirmed on cross-
examination that defendant has an IQ of 123, which he described as ―in the
superior range.‖
II. DISCUSSION
A. Pretrial Issues
1. The detention and arrest of defendant, and the search of his vehicle
Defendant moved in limine to suppress all evidence obtained as a result of
the warrantless search and seizure conducted by United States Park Police Officer
Robert Jansing on March 6, 1995, in San Francisco. The trial court denied the
motion, without making express findings. Defendant contends his detention and
arrest, and the subsequent search of his vehicle, violated his rights under the
Fourth Amendment to the United States Constitution, and that the evidence seized
should have been excluded at trial.6
a. Facts
As recounted above, defendant was arrested on March 6, 1995, by Officer
Jansing of the United States Park Police (Park Police). At the hearing on
defendant‘s motion to suppress evidence, Jansing testified that he was assigned
6
No issue has been raised by defendant related to the June 1, 1994, search of
his apartment.
22
that day to patrol the northern end of the Golden Gate National Recreation Area,
which includes Aquatic Park and Fort Mason. When on duty, Jansing drove his
marked Park Police vehicle through the parking area of Gashouse Cove, a marina
near Fort Mason. He testified that the parking area was owned by the San
Francisco Recreation and Park District and was ―mainly . . . for the yacht harbor,‖
which was ―right next to‖ the national recreation area. Jansing related that as he
drove through the parking area, he noticed that the registration tag on the license
plate of a brown Datsun sedan was not flat on the plate, indicating to Jansing that
the tag might not belong to the plate to which it was affixed. Jansing estimated
that the Datsun was parked approximately 100 yards from property owned by the
federal government. As Jansing circled the parking area, he contacted his dispatch
office to check the registration of the Datsun‘s license plate. In response, he was
informed that the registration had expired in March 1994.
Jansing testified that he returned to the Datsun and parked his patrol car
behind it. He then exited from his vehicle and asked defendant, who was in the
driver‘s seat of the Datsun, for his driver‘s license and vehicle registration.
Jansing testified that he informed defendant his registration was expired, and
defendant responded that he recently had purchased the vehicle and did not know
the source of the 1995 registration tag. According to Jansing, defendant also
stated that he had a valid driver‘s license but did not have it in his possession.
Defendant provided Jansing with what Jansing described as ―some type of
paperwork for the vehicle . . . — either a bill of sale — might have been an old
registration showing that [the Datsun] was still in the name of somebody out of
Canoga Park.‖ Jansing testified that defendant told him he did not have any
photographic identification with him, but he gave Jansing a birth certificate in the
name of ―Richard Redd‖ and said that was his name. Standing next to the driver‘s
door of defendant‘s vehicle and using his portable police radio, Jansing contacted
23
his dispatch office to determine whether ―Richard Redd‖ had a valid driver‘s
license. Jansing was informed that there was no record of such a license.
Jansing related that he informed defendant he believed defendant was not
being truthful with respect to his name and that he wanted defendant‘s correct
name, but defendant continued to claim his name was ―Richard Redd.‖ Jansing
testified that he then asked defendant to step out of his vehicle and put his hands
behind his back. According to Jansing, he then placed handcuffs on defendant and
informed him that Jansing would find out who he was. When asked at the hearing
his reason for putting handcuffs on defendant at that point, Jansing responded that
he was arresting defendant for three violations — providing a false name, having
no driver‘s license, and having an expired vehicle registration. When asked why
he took defendant into custody, Jansing testified that the only way to determine
defendant‘s identification to a certainty was to transport him in order to have his
fingerprints checked.
Jansing testified that after placing handcuffs on defendant, he searched
defendant, discovered a wallet in his back pocket, and found inside the wallet a
driver‘s license in defendant‘s name. Using his police radio, Jansing informed his
dispatch office of the name on the driver‘s license. Jansing learned from the
dispatch office that there were arrest warrants for defendant related to murder,
attempted murder, robbery, and a parole violation. Jansing requested and received
confirmation of the warrants, and then requested that defendant‘s vehicle be
impounded, which his shift sergeant approved. Jansing testified that he
impounded the vehicle because the owner was unknown and could not be
contacted, the registration was expired, and Jansing did not know whether the
vehicle had been stolen. The officer acknowledged that the circumstance that
defendant had been arrested also was a factor in deciding whether to impound the
vehicle.
24
According to Jansing, Park Police General Order No. 2501 required that an
inventory of an impounded vehicle be conducted. He stated that General Order
No. 2501 was applicable to all federal Park Police officers, ―regardless of the
property they‘re on, as long as they‘re in the course of their official duties,
impounding a vehicle pursuant to their arrest authority.‖ Jansing identified the
principal reason for the inventory requirement as potential liability for anything
that might be in the vehicle. Pursuant to his understanding of what was required
by Park Police policy, Jansing conducted a full inventory, including searching any
compartments or closed containers, and also inspected the vehicle for damage.
Jansing testified that, in the course of searching the vehicle, he found weapons and
ammunition, which could not be allowed to remain in the vehicle while it was
impounded. He also testified that because one of the arrest warrants had been
issued an application of the Federal Bureau of Investigation (FBI) and the FBI had
a local presence, the Park Police requested that FBI agents respond to the scene,
and the Park Police turned over the weapons and ammunition to the FBI to be
stored in a secure facility. Other items were left inside the vehicle, and an FBI
agent directed that it be stored in the General Services Administration‘s secure
facility.
After the vehicle, weapons, and ammunition were transferred to the FBI,
Jansing transported defendant to the San Francisco County Jail, where defendant
was booked on the arrest warrants. Although Jansing had prepared a citation
relating to the Vehicle Code violations, he testified that he decided ―it wasn‘t
worth it,‖ because he believed officials in San Francisco would not file charges on
these less serious matters in light of the circumstance that defendant would be
transferred to another county to face more serious charges.
Jansing also testified that he had received training to qualify him as a peace
officer under section 832 of the Penal Code. He stated that he took an ―832
25
course‖ through Santa Rosa Junior College, and produced his certificate of
completion of the course. Jansing further testified that on the date he arrested
defendant, he was authorized to act as a peace officer in San Francisco. He
produced a letter from San Francisco‘s Chief of Police, Tony Ribera, conferring
authority upon all Park Police officers, under section 830.8, subdivision (b), to act
as peace officers in San Francisco.
Defendant testified at the hearing on his motion to suppress evidence that
he had purchased the Datsun in early December 1994, and that he owned it at the
time he was arrested. He also testified that after he gave Jansing the birth
certificate, and after Jansing contacted someone on his radio, the officer demanded
additional identification. In response, defendant testified, he looked through his
wallet for some form of identification that would satisfy Jansing, ―at which time
[Jansing] snatched [the wallet] out of my hand and went through the wallet on his
own volition.‖ Defendant did not recall whether Jansing took the wallet before or
after he ordered defendant out of the vehicle, but recalled that Jansing took it
before handcuffing defendant, and that the wallet had been in defendant‘s hand,
not in his back pocket. Defendant also testified that he gave Jansing other
documents in addition to those that were presented in court, and that defendant‘s
name was on a handwritten bill of sale that was among the documents he gave to
Jansing.
Charles Trebbien, a parole agent with the California Department of
Corrections, testified at the hearing that he was defendant‘s assigned parole agent
from November 1993 to March 1995. Trebbien testified that defendant was
involved in an incident in the City of Orange on May 31, 1994, in which a security
guard was injured (presumably, the shooting of James Shahbakhti in front of the
Vons market), which led Trebbien to request that a warrant be issued for
26
defendant‘s arrest. On June 1, 1994, the Board of Prison Terms issued a warrant
for defendant‘s arrest.
Jerry Brakebill, a police officer with the City of Brea, testified at the
hearing that he was the detective assigned to investigate the homicide of Timothy
McVeigh on July 18, 1994, at the Alpha Beta market. On that date, he obtained a
warrant for defendant‘s arrest in connection with the homicide. On March 6,
1995, the FBI notified Brakebill that defendant had been arrested in San Francisco.
On March 7, 1995, a warrant to search the vehicle was issued in the County of
Orange, and Brakebill traveled to San Francisco and searched the vehicle and its
contents that same day.
b. Analysis
i. Jansing’s authority to arrest defendant
Defendant contends Jansing, as a federal officer, lacked authority to detain
and arrest defendant on property owned by the City and County of San Francisco.
We disagree, concluding that Jansing acted within the authority set forth in section
830.8, subdivision (b): ―Duly authorized federal employees who comply with the
training requirements set forth in Section 832 are peace officers when they are
engaged in enforcing applicable state or local laws on property owned or
possessed by the United States government, or on any street, sidewalk, or property
adjacent thereto, and with the written consent of the sheriff or the chief of police,
respectively, in whose jurisdiction the property is situated.‖
Defendant urges us to reject the application of section 830.8 on four
grounds: (1) the prosecution did not attempt to justify the seizure on the ground
that it occurred ―adjacent‖ to federal property, and therefore cannot rely upon this
theory on appeal (2) the arrest did not occur on property ―adjacent‖ to federal
property, (3) the prosecutor failed to prove that the head of Jansing‘s agency
27
certified Jansing‘s relevant training, and (4) Jansing did not have authority to use a
marked police vehicle to enforce state laws.
First, it is clear the prosecution contended that the arrest was effected on
property ―adjacent‖ to federal property, as authorized by section 830.8,
subdivision (b). In its opposition to the motion to suppress, the prosecution stated
that Jansing had peace officer status because he had completed the training under
section 832, and that the Park Police had the written consent of the chief of police
to act as peace officers in San Francisco. In support of this contention, the
prosecution cited section 830.8, subdivision (b). It was not required that the
prosecution address in the trial court every factor set forth in subdivision (b) in
order to rely upon this provision on appeal.
Second, defendant contends the parking lot in which he was arrested is not
―adjacent‖ to federal property, because the parking area is separated from Fort
Mason by a yacht harbor, and because the driving distance between the entrance to
Fort Mason and the location where defendant was arrested is, according to
counsel‘s calculations on appeal, 595 yards. He asserts ―[t]he Legislature‘s intent
was to limit the reach of federal officers to streets, sidewalks and similar property
where offenders might stand and do damage to federal property.‖ Defendant did
not challenge Jansing‘s authority on this basis in the trial court. Therefore, he has
forfeited this issue. (See People v. Williams (1999) 20 Cal.4th 119, 129
(Williams) [―when defendants move to suppress evidence under section 1538.5,
they must inform the prosecution and the court of the specific basis for their
motion‖].)
Even if defendant had preserved this contention, his argument would fail.
The legislative history of section 830.8, subdivision (b), establishes that the term
―adjacent‖ was not intended to restrict the area within which duly authorized
federal employees act as peace officers to locations on nonfederal property that are
28
within ―striking‖ distance of federal property. The extension of federal officers‘
authority to ―adjacent‖ property was proposed in Assembly Bill No. 3874
(Assembly Bill 3874) during the 1984 legislative session. A report of the Senate
Committee on Judiciary concerning this proposed legislation stated that ―[t]he
purpose of the bill is to allow U.S. Park Police officers patrolling the Golden Gate
National Recreation Area to make valid arrests in the surrounding community.‖
(Sen. Com. on Judiciary, Rep. on Assem. Bill 3874 (1983-1984 Reg. Sess.) as
amended Aug. 6, 1984, p. 2.) The report explained that ―[t]he U.S. Park Police
patrolling the Golden Gate National Recreation Area spend a considerable amount
of time driving on city streets and highways in marked police vehicles.
Consequently, these officers are often called on for assistance by the general
public and have many times apprehended criminal suspects outside of their
primary area of responsibility — i.e., the federally-owned property.‖7 (Id. at
pp. 2-3.) Based upon Jansing‘s testimony that the parking area where he arrested
7
Defendant notes that, as introduced on February 17, 1984, Assembly Bill
3874 would have authorized Park Police officers to exercise their police powers
―statewide,‖ and that an amendment made on May 22, 1984, instead authorized
them to exercise their police powers on property adjacent to federal property.
Defendant cites this amendment in support of his view that the term ―adjacent‖
must be narrowly construed. The report of the Senate Committee on Judiciary,
however, addressed Assembly Bill 3874 as amended August 6, 1984. Thus, the
legislative history discussed above supports the view that the term ―adjacent‖ was
intended to encompass ―the surrounding community‖ through which these federal
officers travel as they patrol the Golden Gate National Recreation Area.
Defendant also cites the observation in the legislative history that the
general public calls upon these officers for assistance, and complains that ―Jansing
was not responding to a citizen‘s call for assistance. He was using this provision
to basically ‗take a stroll‘ through a parking lot that was not in a direct route to any
federal property.‖ We find nothing in the language of the statute or the legislative
history indicating an intent to limit the authority of federal employees to those
situations in which a member of the public has requested assistance.
29
defendant served Gashouse Cove, which was ―right next to‖ the national
recreation area, the arrest clearly was made on property ―adjacent‖ to federal
property within the meaning of section 830.8.8
In a related contention, defendant asserts that section 830.8, subdivision (b)
is unenforceable because the term ―adjacent thereto‖ is vague. He relies upon the
statement in Kolender v. Lawson (1983) 461 U.S. 352, that ―[w]here the
legislature fails to provide . . . minimal guidelines [to govern law enforcement], a
criminal statute may permit a ‗standardless sweep [that] allows policemen,
prosecutors, and juries to pursue their personal predilections.‘ [Citation.]‖ (Id. at
p. 358.) Kolender was referring to minimum guidelines concerning the elements
of a crime. As Kolender explained, ―the void-for-vagueness doctrine requires that
a penal statute define the criminal offense with sufficient definiteness that ordinary
people can understand what conduct is prohibited and in a manner that does not
encourage arbitrary and discriminatory enforcement. [Citations.]‖ (Id. at p. 357,
italics added.) In the present case, the alleged vagueness is unrelated to the
definition of any crime.
8
Defendant suggested at oral argument that reliance upon the reference to
―the surrounding community‖ in the legislative history would lead to the
conclusion that federal officers patrolling federal land adjacent to property that
comes within the jurisdiction of the City and County of San Francisco are ―peace
officers‖ throughout the City and County. In context, ―the surrounding
community‖ appears to refer to areas that federal officers might traverse as they
patrol federal land, and does not appear to be synonymous with the surrounding
―jurisdiction.‖ The evidence presented in the trial court as well as maps submitted
by defendant on appeal establish not only that defendant‘s arrest occurred within
the jurisdiction that borders federal land; they also establish that the arrest
occurred in an area, ―right next to‖ federal land, that a federal officer might
traverse on patrol.
30
Third, defendant complains that the prosecution failed to prove that Jansing
was ―certified by [his] agency head[] as having satisfied the training requirements
of Section 832. . . .‖ (§ 830.8, subd. (a).) Although defendant asserted in his
motion to suppress that the prosecution was required to establish that ―Jansing has
satisfied the training requirement or its equivalent of both §§ 830.8(a) and (c),‖ he
raised no issue concerning certification by Jansing‘s agency head. Therefore,
defendant has forfeited this issue. (See Williams, supra, 20 Cal.4th at p. 129.)
Even if defendant had preserved this contention for appeal, it would fail.
The requirement that the agency head certify that the officer has satisfied the
training requirements is found in subdivision (a) of section 830.8, which sets forth
various circumstances under which federal criminal investigators and law
enforcement officials ―may exercise the powers of arrest of a peace officer. . . .‖
As explained above, Jansing was authorized to act pursuant to subdivision (b),
which provides that duly authorized federal employees ―are peace officers‖ when
they enforce state and local laws in specified areas. As originally enacted,
subdivision (b) applied only where the enforcement of state or local laws occurred
on property owned or possessed by the federal government, with the written
consent of the local sheriff or chief of police; the original version did not include
any training requirement. When the Legislature amended subdivision (b) to
extend its reach to federal employees who engage in law enforcement on property
adjacent to federal property, the Legislature restricted the subdivision‘s reach to
federal employees ―who comply with the training requirements set forth in Section
832. . . .‖ It did not, however, include the requirement imposed in the
circumstances addressed in subdivision (a) — that the investigators and officers
―shall have been certified by their agency heads as having satisfied the training
requirements of Section 832. . . .‖ Thus, in order to establish Jansing‘s status as a
―peace officer‖ under subdivision (b), the prosecution was not required to establish
31
that his agency head certified he satisfied the training requirements set forth in
section 832.9
Fourth, defendant contends Jansing did not have authority to use a marked
police vehicle to enforce state laws, citing an opinion of the Attorney General. (80
Ops.Cal.Atty.Gen. 297 (1997).) Defendant did not advance this contention in the
trial court, and therefore has forfeited it. (See Williams, supra, 20 Cal.4th at
p. 129.) Even if defendant had preserved this contention on appeal, it would fail.
The Attorney General opinion upon which defendant relies focused upon
subdivision (a) of section 830.8, and concluded that Federal Protective Service
(FPS) officers ―are not peace officers as that term is defined in sections 830-832.9.
(§ 830.8, subd. (a).) Nothing in section 830.8 authorizes FPS officers to use
marked police vehicles or other emergency equipment when enforcing state or
local laws.‖ (80 Ops.Cal.Atty.Gen. at p. 305.) As noted above, Jansing was not
merely exercising arrest powers under section 830.8, subdivision (a); rather, he
was a ―peace officer‖ under subdivision (b). Furthermore, as the legislative
history set forth above reflects, a principal focus of the amendment was federal
officers who ―spend a considerable amount of time driving on city streets and
highways in marked police vehicles.‖ (Sen. Com. on Judiciary, Report on Assem.
9
Contrary to defendant‘s assertion at oral argument that the requirements of
both subdivisions (a) and (b) of section 830.8 must be satisfied, the plain language
of these two subdivisions reflects that they provide independent bases for
validating a federal officer‘s actions. Not only do the two subdivisions set forth
distinct circumstances in which a federal employee is authorized to act, but
subdivision (a) addresses only the authority to exercise the powers of arrest,
whereas subdivision (b) provides that federal employees who come within its
provisions ―are peace officers.‖ In addition, if the Legislature had intended the
requirements of subdivision (a) to apply when an officer is acting pursuant to the
authority granted in subdivision (b), there would have been no reason to include
the same training requirement in both subdivisions.
32
Bill 3874, supra, pp. 2-3, italics added.) Accordingly, it is clear that among the
federal employees whose actions were to be ratified by the amendment to
subdivision (b) were those who carried out their duties in marked police vehicles.
For these reasons, we reject defendant‘s contention.
Because we conclude Jansing had authority under section 830.8,
subdivision (b), to act as a peace officer when he arrested and searched defendant,
we need not address whether Jansing also may have acted properly pursuant to
subdivision (a) of section 830.8, or as a private citizen.
ii. Validity of the arrest and search
A defendant may move to suppress evidence on the ground that ―[t]he
search or seizure without a warrant was unreasonable.‖ (§ 1538.5, subd.
(a)(1)(A).) A warrantless search is presumed to be unreasonable, and the
prosecution bears the burden of demonstrating a legal justification for the search.
(Williams, supra, 20 Cal.4th 119, 127.) ―The standard of appellate review of a
trial court‘s ruling on a motion to suppress is well established. We defer to the
trial court‘s factual findings, express or implied, where supported by substantial
evidence. In determining whether, on the facts so found, the search or seizure was
reasonable under the Fourth Amendment, we exercise our independent judgment.
[Citations.]‖ (People v. Glaser (1995) 11 Cal.4th 354, 362 (Glaser); People v.
Laiwa (1983) 34 Cal.3d 711, 718.)10 As explained below, we conclude the
prosecution established that the search of defendant and his vehicle was
reasonable.
10
Defendant‘s authority to the contrary is inapposite. The standard of review
set forth in Wiggins v. Smith (2003) 539 U.S. 510, 530-531, and Taylor v. Maddox
(9th Cir. 2004) 366 F.3d 992, 1014, relates to review by federal courts of state
court judgments in the context of habeas corpus proceedings.
33
―Vehicle Code sections 4462 and 12951 long have required that the person
in the immediate control of an automobile present evidence of registration and a
driver‘s license upon proper command of a police officer.‖ (In re Arturo D.
(2002) 27 Cal.4th 60, 67, fn. omitted.) Upon defendant‘s failure to provide a valid
registration and his provision of false identification of himself as ―Richard Redd,‖
Jansing had authority to place defendant under arrest. (See § 148.9, subd. (a) [any
person who falsely identifies himself to a peace officer upon lawful detention or
arrest to evade his proper identification by the investigating officer is guilty of a
misdemeanor]; Veh. Code, § 4000 [no person shall leave standing in an offstreet
public parking facility any vehicle unless it is registered].) Moreover, Jansing had
authority to search defendant incident to this arrest. (United States v. Robinson
(1973) 414 U.S. 218, 235 [―A custodial arrest of a suspect based on probable
cause is a reasonable intrusion under the Fourth Amendment; that intrusion being
lawful, a search incident to the arrest requires no additional justification‖].)11
Defendant asserts, however, that Jansing‘s testimony concerning the arrest
was not credible, and that this court should accept defendant‘s version of the
events, ―which established that Jansing seized the wallet before checking on the
11
We note that even if the arrest were not proper under state law, the search
of defendant incident to the arrest would not be a violation of the Fourth
Amendment. (Virginia v. Moore (2008) 553 U.S.164 [128 S.Ct. 1598, 1604-1607]
[―when an officer has probable cause to believe a person committed even a minor
crime in his presence, . . . [t]he arrest is constitutionally reasonable‖ and ―[t]he
interests justifying search are present whenever an officer makes an arrest‖];
People v. McKay (2002) 27 Cal.4th 601, 618 [―so long as the officer has probable
cause to believe that an individual has committed a criminal offense, a custodial
arrest — even one effected in violation of state arrest procedures — does not
violate the Fourth Amendment‖].) Absent a federal constitutional violation, the
exclusionary rule does not apply. (Cal. Const., art. I, § 28; In re Lance W. (1985)
37 Cal.3d 873, 879, 890.)
34
identification offered by appellant.‖ Defendant‘s testimony does not establish
defendant‘s version of the events.12 Instead, defendant bases his assertion upon
trial counsel‘s calculation that only 26 seconds elapsed between the time the
dispatch office stated that there was no record of ―Richard Redd,‖ and the time
Jansing informed that office of defendant‘s true identity and driver‘s license
number. Because 26 seconds assertedly was too short a period of time for Jansing
to have ordered defendant out of his vehicle, placed him in handcuffs, found
defendant‘s driver‘s license in his pocket, and relayed the information to the
dispatch office, defendant concludes Jansing must have seized the wallet before
Jansing learned there was no record of a driver‘s license for ―Richard Redd‖ and
before he arrested defendant.
In light of the circumstance that Jansing was communicating with the
dispatch office by way of a portable radio while he stood next to the door of
defendant‘s vehicle, we do not find it incredible that only 26 seconds (according to
trial counsel‘s calculations) may have elapsed between the time Jansing ordered
defendant out of his vehicle and the time he radioed defendant‘s true name to the
dispatch office. We also reject defendant‘s contention that we should question
Jansing‘s credibility because he could not recall various facts, such as whether
other vehicles in the parking area were occupied, whether he used a key to open
the vehicle‘s trunk, and whether he contacted the FBI before opening the trunk.
12
As noted above, defendant testified that after Jansing contacted someone on
his radio, Jansing demanded other identification, at which point defendant looked
through his wallet. Defendant also testified that Jansing took the wallet ―either
just prior to him ordering me out of the car or just after. I recall him looking over
me as I was going through the wallet, but I can‘t remember if I was still in the car
or just after I stepped out.‖ Thus, defendant‘s testimony disputed only the details
of how the wallet was seized during the arrest, and did not establish that Jansing
seized the wallet before checking the identification provided by defendant.
35
None of these asserted lapses of memory suggests that Jansing was untruthful with
respect to the facts he recalled. Therefore, we accept the trial court‘s implied
finding that the search was conducted during or after the arrest, a finding
supported by Jansing‘s testimony. (See Glaser, supra, 11 Cal.4th at p. 362 [―We
defer to the trial court‘s factual findings, express or implied, where supported by
substantial evidence.‖].)
In any event, even if Jansing had seized the wallet before he began
effecting the arrest, the evidence thereby obtained would not be subject to
exclusion. It is undisputed that Jansing already had contacted his dispatcher
concerning the birth certificate. Therefore, Jansing would have learned, without
the information gained from the wallet, that defendant was not Richard Redd.
Thus, the wallet inevitably would have been discovered in the search of defendant
incident to the arrest that Jansing effected based upon the Vehicle Code violations
and defendant‘s having provided a false name. (Nix v. Williams (1984) 467 U.S.
431, 444.) Accordingly, even under defendant‘s factual theory on appeal, the
exclusionary rule would not apply.
Because Jansing had arrested defendant, and because the vehicle‘s
registration had expired more than six months earlier, Jansing had authority under
state law to impound defendant‘s vehicle. (Veh. Code, § 22651, subds. (h)(1) [an
officer may remove a vehicle when the officer effects a valid arrest of the person
in control of the vehicle] & (o)(1) [a peace officer may remove a vehicle found on
an off-street parking facility with a registration expiration date in excess of six
months prior to the date the vehicle is found]). Having impounded the vehicle,
Jansing had authority to conduct an inventory of the vehicle‘s contents ―aimed at
securing or protecting the car and its contents.‖ (South Dakota v. Opperman
36
(1976) 428 U.S. 364, 373.)13 The record establishes that Jansing‘s inventory was
conducted for the purpose of securing and protecting the vehicle‘s contents.
Jansing testified that he followed Park Police General Order No. 2501, which
states: ―Inventory procedures serve to protect an owner‘s property while it is in
the custody of the Force, to ensure against claims of lost, stolen or vandalized
property, and to protect officers from danger. A vehicle should not be released to
a crane service until it has been inventoried. The impounding officer shall conduct
a thorough inventory of the vehicle as soon as possible after it is impounded. The
officer shall open closed containers whose contents the officer is unable to
ascertain from the container‘s exterior and characteristics.‖ (Id., § 2501.06(A),
p. 6)This testimony also established that the inventory was conducted pursuant to
standard criteria, and that Jansing was ―not allowed so much latitude that [the
search could turn] into ‗a purposeful and general means of discovering evidence of
crime,‘ [citation].‖ (Florida v. Wells (1990) 495 U.S. 1, 4 (Wells); see also
Colorado v. Bertine (1987) 479 U.S. 367, 374, fn. 6 [―Our decisions have always
adhered to the requirement that inventories be conducted according to
standardized criteria.‖] (Bertine).)
Defendant asserts that because the search occurred on city and county
property, the People were required to establish that the local authorities had a
property inventory search policy and that Jansing complied with that policy. He
fails to cite any pertinent authority in support of this contention. Moreover, the
reasons supporting the requirement that an inventory search be conducted pursuant
to an established policy support the conclusion that Jansing satisfied this
13
Because we conclude Jansing properly impounded the vehicle and
conducted an inventory search, we need not address the issue whether the vehicle
search also would have been proper as incident to defendant‘s arrest.
37
constitutional requirement by following the policy of the Park Police. The
requirement of established procedures ―is based on the principle that an inventory
search must not be a ruse for a general rummaging in order to discover
incriminating evidence. The policy or practice governing inventory searches
should be designed to produce an inventory.‖ (Wells, supra, 495 U.S. at p. 4.) In
addition, in rejecting an argument that the police should weigh whether a thorough
inventory is appropriate, the United States Supreme Court has observed that
― ‗ ―[a] single familiar standard is essential to guide police officers, who have only
limited time and expertise to reflect on and balance the social and individual
interests involved in the specific circumstances they confront.‖ ‘ [Citation.]‖
(Bertine, supra, 479 U.S. at p. 375.) The purpose of countering ―general
rummaging‖ does not require that the Park Police follow the policy of the
jurisdiction in which they temporarily act as peace officers; the purpose of
providing ― ‗ ―a single familiar standard‖ ‘ ‖ is served by a rule requiring that the
Park Police follow the federal policy in all circumstances. Defendant provides no
reason to impose a different requirement.
Because the warrantless arrest and search of defendant and the warrantless
search of his vehicle were lawful, we need not address the question whether the
affidavit supporting issuance of the search warrant obtained the following day by
the Brea police would have supported issuance of a search warrant, absent the
information obtained through Jansing‘s search. In light of our conclusion that
Jansing‘s actions were a lawful response to defendant‘s failure to provide a valid
driver‘s license and vehicle registration, we need not address whether the officer‘s
actions also were justified by defendant‘s parole status.
38
2. Defendant’s motion for a lineup
On July 19, 1996, defendant moved for an order compelling the attendance
of Dean Bugbee at a pretrial lineup.14 On appeal, he contends the trial court‘s
denial of the motion was an abuse of discretion and violated his right to due
process of law under the Fifth and Fourteenth Amendments to the United States
Constitution.
We concluded in Evans v. Superior Court (1974) 11 Cal.3d 617 (Evans)
that ―due process requires in an appropriate case that an accused, upon timely
request therefor, be afforded a pretrial lineup in which witnesses to the alleged
criminal conduct can participate. The right to a lineup arises, however, only when
eyewitness identification is shown to be a material issue and there exists a
reasonable likelihood of a mistaken identification which a lineup would tend to
resolve.‖ (Id. at p. 625.) We also concluded that ―[t]he questions whether
eyewitness identification is a material issue and whether fundamental fairness
requires a lineup in a particular case are inquiries which necessarily rest for
determination within the broad discretion of the magistrate or trial judge.‖ (Ibid.)
Finally, with respect to whether such a motion is timely, we stated that the
―motion should normally be made as soon after arrest or arraignment as
14
The motion sought to compel the attendance of ―percipient witnesses.‖ The
declaration of counsel in support of the motion addressed Counts One and Two,
which involved the March 13, 1994, burglary and robbery at the Sav-on drug
store, and referred to both Dean Bugbee and Eric Tomsons, another Sav-on
employee. The proposed order also referred to Bugbee and Tomsons. At the
hearing on the motion, defense counsel referred to ―this particular witness,‖ and to
the issue of whether ―the victim [is] able to make an identification.‖ Thereafter,
both sides referred only to Bugbee. On appeal, defendant describes the motion as
seeking a lineup at which Bugbee would appear, and discusses only Bugbee‘s
testimony. Therefore, we consider only the applicability of our analysis to
Bugbee.
39
practicable. We note that motions which are not made until shortly before trial
should, unless good cause is clearly demonstrated, be denied in most instances by
reason of such delay.‖ (Id. at p. 626.)
In the present case, the trial court denied the motion for a pretrial lineup on
the grounds that there did not exist a reasonable likelihood of mistaken
identification, and that the motion was untimely. As explained below, the record
supports these conclusions, and we find no abuse of discretion in the court‘s
ruling.
Defendant was arrested on March 6, 1995, and made his first court
appearance on March 13, 1995, at which time the public defender was appointed
to represent him. At the preliminary hearing conducted on June 9, 1995, Detective
Sergeant Larry Pore of the Orange Police Department testified concerning Dean
Bugbee‘s identification of defendant in a photographic lineup held on June 16,
1994, in connection with the robbery of Bugbee at the Sav-on drug store in March
1994. Defense counsel cross-examined Pore concerning Bugbee‘s photographic
identification and requested that the original photographic lineup be made
available, stating, ―I‘m unable to assess whether there‘s any suggestiveness within
the spread‖ by viewing only the copy available at the preliminary hearing.
On July 19, 1996, more than a year after these preliminary proceedings,
defendant filed his motion for an order requiring that Bugbee appear at a lineup.
The motion stated that ―the identification procedures used previously by law
enforcement create a reasonable likelihood of mistaken identity.‖ The supporting
declaration of counsel stated that Sav-On employee Eric Tomsons provided a
description of the crime similar to the description provided by Bugbee, but
Tomsons did not identify defendant when shown a photographic lineup. The
declaration also described Bugbee‘s identification of defendant‘s photograph as
―the closest,‖ based upon the shape of the face and Bugbee‘s statement that if dark
40
glasses were added, he would state the subject was the person who robbed him.
The declaration also recited that Bugbee indicated he could positively identify the
suspect if he were to see him in person.
The hearing on the motion was held on August 16, 1996, less than two
months before the October 7 trial date. In response to the prosecution‘s contention
that the motion was untimely, defense counsel stated there was a large amount of
discovery, and ―as a practical matter the defense could not have sifted through that
discovery and made a request [for a lineup] on time.‖ Counsel also theorized that
―timeliness [is] a relative thing because the case was so old by the time it actually
started its journey through the court system, my position would be that the
additional delay to this point doesn‘t really change things.‖ In other words,
according to counsel, Bugbee‘s identification would not have been more accurate
at the time of arraignment than when the motion for a lineup was heard. Counsel
also claimed that ―we do not have any other evidence that links [defendant] to this
crime in terms of physical findings, ballistics, anything of that nature.‖ The
prosecution disputed the contention that it had been impracticable to request a
lineup earlier, and asserted that circumstantial evidence also demonstrated that
defendant committed the crime.
The court concluded Bugbee was a material witness, but denied the request
for a lineup, stating: ―I cannot make a finding there exists a reasonable likelihood
of mistaken identification.‖ The court cited as another basis for its decision the
circumstance that there was sufficient opportunity for defendant to have requested
the lineup at an earlier time. Finally, it noted the approaching trial date.
Defendant does not address the trial court‘s conclusion that there was no
reasonable likelihood of mistaken identification. In any event, the trial court did
not abuse its discretion in so concluding. As set forth in defense counsel‘s
declaration, Bugbee picked defendant‘s photograph from the lineup, said that if
41
dark glasses were added he would state the subject was the person who robbed
him, and indicated he could positively identify the suspect if he saw him in person.
The circumstance that another employee, who was not robbed by defendant, could
not identify defendant from the photographs did not compel the trial court to
conclude there was a reasonable likelihood of mistaken identification by Bugbee.
In the absence of a reasonable likelihood of a mistaken identification, defendant
had no right under Evans, supra, 11 Cal.3d at page 625, to a lineup.
In addition, defendant fails to establish that the trial court abused its
discretion in finding the motion to be untimely. He notes our statement in Evans
that ―[d]ilatory or obstructive tactics made under the guise of seeking discovery but
which tend to defeat the ends of justice will necessarily be weighed heavily on
timeliness grounds against the granting of the motion within discretionary limits‖
(Evans, supra, 11 Cal.3d at p. 626), and states there was no evidence of dilatory or
obstructive tactics. But Evans does not require evidence of such tactics. Rather, we
stated that a motion for a lineup ―should normally be made as soon after arrest or
arraignment as practicable.‖ (Ibid.) Here, the trial court reasonably concluded that
the motion could have been made earlier. We also stated in Evans that ―motions
which are not made until shortly before trial should, unless good cause is clearly
demonstrated, be denied in most instances by reason of such delay.‖ (Ibid.) Here,
the motion was made shortly before trial, and defendant did not clearly demonstrate
good cause for his delay. For all of these reasons, we conclude the trial court did
not abuse its discretion in denying defendant‘s motion for a lineup.
B. Guilt Phase Issues
1. Defense counsel’s reference to defendant during his opening
statement
Defendant contends that during defense counsel‘s opening statement,
counsel conceded defendant‘s guilt with respect to the charges of attempted
42
murder of Shahbakhti and Weidmann, and thereby provided ineffective assistance
of counsel. As explained below, the record establishes that counsel did not
concede defendant‘s guilt, and that counsel‘s reference to defendant during his
opening statement did not constitute ineffective assistance of counsel.
In the course of his opening statement, defendant‘s counsel reviewed some of
the factual allegations surrounding the charges. First, he described the robbery of
Dean Bugbee at the Sav-on drug store, highlighting circumstances that would have
impeded a clear identification of ―the robber,‖ and discrepancies between Bugbee‘s
description of defendant‘s height and age and defendant‘s actual height and age.
Next, he described the incident in front of the Vons market, in which James
Shahbakhti was shot, stating that ―[a] fellow pulled up in a vehicle and drove
through the complex. At first he noticed a man later identified as Stephen Redd
walking in a different part of the strip mall over in front of a karate studio. [¶]
Eventually after a few minutes Mr. Redd is observed walking in front of the Von’s
store. At that point in time the unarmed security guard accosted him, stops him.
Apparently the subject is just walking through and he stops the person. [¶] The
person says hi, leave me alone. The security guard demands he stay there.‖ (Italics
added.) Throughout the rest of this description, defense counsel referred to the
individual as ―the person,‖ ―the stopped person, ―that person,‖ ―him,‖ ―that subject,‖
―he,‖ ―the subject,‖ and ―the gunman.‖15 Defense counsel then described the
15
The rest of counsel‘s description relating to the incident states: ―[The
security guard] in essence detains him if I can use that word. The person is
observed to say a number of times leave me alone, let me go. [¶] Eventually a
second security guard shows up in a separate vehicle, pulls up close to where the
other two men are standing and he hears the stopped person saying I just want to
leave, let me go, let me go and I‘ll go. [¶] Apparently that person gets a little
more excited and agitated. The security guards do not allow him to leave. At
some point that subject produces a handgun. They don‘t see where it comes from,
(Footnote continued on next page)
43
robbery and homicide at the Alpha Beta market, referring to the perpetrator as ―a
man,‖ ―the man,‖ ―he,‖ ―the robber,‖ ―that subject,‖ and ―the gunman.‖
In support of his contention that counsel conceded his guilt, defendant
relies in part upon the prosecutor‘s related comments during his opening
argument. After reviewing how he had laid out his case during his opening
statement, the prosecutor stated that he had listened closely to the defense‘s
opening statement to hear what the defense would be. He stated that defense
counsel carefully had avoided stating who had committed the crimes, but when
counsel had reviewed the attempted murder counts, ―he started off by saying that
Mr. Redd was by a karate studio and he came up and was talking to security
guards, but then he changed what he said about the shooting. He said — he started
calling him this person and that person, never saying it was Mr. Redd. . . . [¶] . . .
He says the gunman rips off a number of shots. He never says that it‘s Mr. Redd.
He always says it‘s a gunman, that person.‖ The prosecutor then stated, ―Well, I
was wondering are they saying it‘s the defendant or not.‖ He then observed that in
reviewing the Alpha Beta incident, defense counsel ―[n]ever [said] it was Mr.
(Footnote continued from previous page)
but he produces a gun. [¶] Now, the security guards, it‘s true, they aren‘t armed.
They are not carrying a side arm the way a regular peace officer does, but they do
have something with them that‘s of concern to the subject. They each have a
vehicle and in each vehicle is a radio that they can use to contact the police. [¶]
The two men at some point in the sequence, it‘s a little unclear, you‘ll hear how
they describe it, run towards their vehicles. The gunman rips off a number of
shots, somewhat wild. One of the fellows is hit in the shoulder and goes down.
The other is untouched, but the gunman achieves his purpose. He‘s able to flee on
foot and get away from the scene. [¶] What you infer about the gunman‘s state of
mind, what he intended, whether he was attempting to kill or just achieve another
objective, keep them away from their radios, make his escape. Those are things to
discuss later. But he does get away.‖
44
Redd.‖ The prosecutor concluded, ―So I don‘t know what the defense is in this
case. I don‘t know if they are saying now it‘s Mr. Redd now that all this evidence
has come in or if they are still saying it‘s some robber, we don‘t know who it is
. . . .‖ The prosecutor then undertook ―to show you why what the attorneys say is
not evidence,‖ and reviewed various statements defense counsel had made during
his opening statement that, according to the prosecutor, were not established by
the evidence. Subsequently, in the course of reviewing the evidence, the
prosecutor stated, ―So I think the defense is going to say he didn‘t do it.‖
Viewed in context, defense counsel‘s reference to the presence of ―Mr.
Redd‖ in front of the Vons market was not a concession that defendant was the
individual involved in that incident. Defense counsel had noted that the individual
seen in front of the karate studio had been identified subsequently as defendant,
and counsel‘s reference to ―Mr. Redd‖ in the next sentence reflected that this was
the same individual who was seen in front of the Vons market. Counsel then
returned to his practice of referring to the perpetrator of the charged crimes
without identifying him. As the prosecutor emphasized in his opening argument,
the defense was careful not to state that defendant was the perpetrator. The
prosecutor‘s arguments did not claim defense counsel had conceded guilt; rather,
the comments highlighted what the prosecutor believed to be uncertainty with
respect to the defense to the charges. Following the prosecutor‘s opening
argument, defense counsel‘s argument emphasized flaws and discrepancies in the
description and identification of the gunman in connection with the shooting in
front of the Vons market, and continued to refer to the gunman generally, without
45
identifying him as defendant. We also note that the jury repeatedly was informed
that the statements of counsel are not evidence.16
In these circumstances, it is doubtful that a reasonable juror would have
understood counsel‘s statement to be a concession that defendant was the individual
involved in the incident that took place in front of Vons market. In addition, even if
a reasonable juror had understood the comment as conceding defendant was the
gunman, the concession would have made no difference to the outcome, because the
evidence identifying defendant as the perpetrator was overwhelming. Not only did
Shahbakhti identify defendant, but Joseph Loya witnessed defendant‘s vehicle
leaving the area; Officer King saw defendant in the vicinity where defendant‘s
vehicle was parked; Detective Harper found bullets in defendant‘s apartment that
matched the type used in the Vons market shooting, and the firearm found in
defendant‘s vehicle matched the shell casings and bullets recovered at the scene.
Therefore, counsel‘s performance in this respect was neither deficient nor
prejudicial. (Strickland v. Washington (1984) 466 U.S. 668, 687.)
2. Out-of-court identifications
Defendant contends the admission of the out-of-court identifications
violated his rights under the confrontation clause of the Sixth Amendment to the
United States Constitution, and Evidence Code section 1238.
16
The trial court emphasized before opening statements that ―what counsel
says during opening statement is not evidence, should not be considered by you as
evidence. [¶] It simply affords them an opportunity to outline for you what they
anticipate the evidence will be.‖ Defense counsel began his opening statement by
stating, ―As the court cautioned earlier what the lawyers say is not evidence.‖ As
noted above, the prosecutor emphasized in his opening argument that what the
lawyers said was not evidence. Finally, the court instructed the jury that
―statements made by the attorneys during the trial are not evidence.‖
46
As set forth above, Dean Bugbee, James Shahbakhti, and Brenda Rambo
testified at trial concerning their out-of-court identifications of defendant in
photographic lineups. When the prosecutor asked Bugbee which of the
photographs he had selected, defense counsel stated, ―[o]bjection under section
1238, not adequate foundation.‖ The court overruled the objection. Defendant did
not object to the subsequent testimony of Shahbakhti and Rambo concerning their
out-of-court identifications of defendant.
Evidence Code section 1238 establishes an exception to the hearsay rule for
a statement that identifies a party or other person as a participant in a crime or
other occurrence, ―if the statement would have been admissible if made by [the
witness] while testifying. . . .‖ The statute requires that the statement have been
made when the crime was fresh in the witness‘s memory, and that ―the evidence of
the statement is offered after the witness testifies that he [or she] made the
identification and that it was a true reflection of his [or her] opinion at that time.‖
(Evid. Code, § 1238.)17
Defendant complains that ―[n]one of the witnesses testified, prior to the
introduction of the out-of-court identifications that he or she ‗made the
identification and that it was a true reflection of his [her] opinion at that time.‘ ‖
17
Evidence Code section 1238 provides in full: ―Evidence of a statement
previously made by a witness is not made inadmissible by the hearsay rule if the
statement would have been admissible if made by him while testifying and:
―(a) The statement is an identification of a party or another as a person who
participated in a crime or other occurrence;
―(b) The statement was made at a time when the crime or other occurrence
was fresh in the witness‘s memory; and
―(c) The evidence of the statement is offered after the witness testifies that
he made the identification and that it was a true reflection of his opinion at that
time.‖
47
(Italics as added by defendant.) Our review of the record, however, reflects that
the italicized requirements were met. The prosecutor asked Bugbee, ―were you
able to make an identification of any of the individuals as being . . . the person
who committed the robbery?‖ Bugbee responded, ―Yes.‖ In the course of
reviewing Bugbee‘s out-of-court identification, the prosecutor noted that the
person in the photograph had a beard and mustache, and asked, ―But yet you felt
this was the person, number three?‖ Bugbee responded, ―Yes.‖ The prosecutor
also asked, ―when you made this identification were you trying to be as accurate
as possible in pointing this person out to the police?‖ Again, Bugbee answered,
―Yes.‖ Finally, the prosecutor asked, ―Would you have made this identification if
you didn‘t feel this was the person.‖ Bugbee responded, ―No, I wouldn‘t.‖
Defendant did not object to the testimony of Shahbakhti and Rambo
concerning their out-of-court identifications, and therefore forfeited his contention
as to these witnesses. (Evid. Code, § 353; see People v. Dykes (2009) 46 Cal.4th
732, 756 [―numerous decisions by this court have established the general rule that
trial counsel‘s failure to object to claimed evidentiary error on the same ground
asserted on appeal results in a forfeiture of the issue on appeal‖] (Dykes).)18 These
18
Defendant attempts to excuse his failure to object, claiming that further
objections would have been futile. He cites People v. Hill (1998) 17 Cal.4th 800,
820 (Hill), in which defense counsel ―was subjected to a constant barrage of [the
prosecutor‘s] unethical conduct‖ after having made a number of unsuccessful
objections. (Id. at p. 821.) We noted in Hill that defense counsel ―was thrust upon
the horns of a dilemma‖ — he could continue to object and provoke the trial
court‘s displeasure and derogatory statements in front of the jury, or he could
refrain and risk prejudice to his client. ―Under these unusual circumstances, we
conclude [defense counsel] must be excused from the legal obligation to
continually object, state the grounds of his objection, and ask the jury be
admonished. On this record, we are convinced any additional attempts on his part
to do so would have been futile and counterproductive to his client. [Citations.]‖
(Ibid.) The record in the present case does not establish any basis to excuse the
(Footnote continued on next page)
48
claims also would fail on the merits, because the record establishes that each of
these witnesses testified that he or she made an identification and that the
identification reflected his or her opinion at that time. The prosecutor asked
Shahbakhti, ―After being shown a series of six photographs, were you able to
focus your attention on one of those individuals?‖ Shahbakhti responded, ―Yes,
one looked just pretty much like who the individual was.‖ The prosecutor also
asked him, ―And the person that you were 90 to 95 percent sure of was photo
number three in exhibit ten; is that accurate?‖ Shahbakhti responded, ―That‘s
correct.‖ Similarly, the prosecutor asked Rambo, ―After you looked at these
photographs, did you then circle and date and put your initials on an individual
who you selected as a person being either the person or similar looking to the
person who had robbed you?‖ Rambo, responded, ―Yes.‖ The prosecutor also
asked, ―And when you circled that, who did you circle that to represent? Who was
that person that you selected?‖ Rambo responded, ―The man that robbed me.‖
To the extent defendant‘s challenge rests upon the sequence in which the
testimony was admitted — the trial court admitted the hearsay statements before it
required the declarant to testify that he or she ―made the identification and that it
was a true reflection of his [or her] opinion at that time‖ (Evid. Code, § 1238,
subd. (c)) — the error was harmless, because it is not ―reasonably probable that a
result more favorable to [defendant] would have been reached in the absence of
the error.‖ (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).) The order in
(Footnote continued from previous page)
defense‘s failure to object. Defendant objected on one occasion, stating only
―Objection under section 1238, not adequate foundation,‖ and the trial court stated
only, ―Overrule the objection and permit the witness to testify.‖
49
which the evidence concerning the out-of-court statements was admitted could not
have made any difference in the outcome.
Defendant also contends that the admission of out-of-court identifications
violates a defendant‘s right under the Sixth Amendment to confront witnesses,
even when the declarant testifies. He did not raise an objection below based upon
the confrontation clause, and therefore has forfeited this claim. (Dykes, supra, 46
Cal.4th at p. 756; People v. Raley (1992) 2 Cal.4th 870, 892 [a hearsay objection
did not preserve a claim under the confrontation clause].)19 Even if the claim had
19
Defendant contends he preserved his constitutional claim by stating in a
pretrial pleading, ―[w]ith regard to any motion, objection, request, and/or
exception, [defendant] relies upon the Fourth, Fifth, Sixth, Eighth and Fourteenth
Amendments of the United States Constitution.‖ With respect to this pleading,
defense counsel explained to the trial court, ―some of the federal cases suggest if I
object and simply say hearsay and don‘t add the magic words, it [forfeits] my
client‘s rights according to the Fourth, Fifth, Sixth, Eighth and Fourteenth
Amendments of the U.S. Constitution, some way waiving my right to bring this
up.‖
When ―new arguments do not invoke facts or legal standards different from
those the trial court itself was asked to apply, but merely assert that the trial
court‘s act or omission, insofar as wrong for the reasons actually presented to that
court, had the additional legal consequence of violating the Constitution [] . . . [a]
defendant‘s new constitutional arguments are not forfeited on appeal.‖ (People v.
Boyer (2006) 38 Cal.4th 412, 441, fn. 17.) Defendant‘s objection below,
however — that the testimony did not come within a state-law exception to the
hearsay rule because it lacked an adequate foundation — presented legal issues
different from those underlying an objection that the admission of testimony
would violate the confrontation clause. Therefore, defendant‘s new objection on
appeal is not merely a constitutional ―gloss‖ upon an objection raised below, and
is forfeited.
Defendant also cites People v. Kitchens (1956) 46 Cal.2d 260, 263, which
recognized that a defendant need not anticipate unforeseen changes in the law and
make objections based upon the hope that the law will change. Defendant notes
that Crawford v. Washington (2004) 541 U.S. 36, established a new rule of law
concerning the confrontation clause, requiring the exclusion of ―testimonial‖
statements even if they appear to be reliable. Defendant‘s contention on appeal,
(Footnote continued on next page)
50
been preserved, it would fail. As the United States Supreme Court reiterated in
Crawford v. Washington, supra, 541 U.S. 36, ―when the declarant appears for
cross-examination at trial, the Confrontation Clause places no constraints at all on
the use of his prior testimonial statements. See California v. Green, 399 U.S. 149,
162 (1970).‖ (Id. at p. 60, fn. 9.) Defendant predicts that the United States
Supreme Court will reject this principle of law. Unless and until the high court
alters its position, we apply the long-standing principle reiterated in Crawford and
therefore reject defendant‘s claim on the merits.
3. Victim-impact evidence at the guilt phase
Defendant contends victim-impact evidence was admitted at the guilt phase
in violation of his right to a fair trial under the Fifth, Sixth, Eighth, and Fourteenth
Amendments of the United States Constitution, and article I, sections 7, 15, 17,
and 24 of the California Constitution.
During the guilt phase, after questioning Shahbakhti concerning the
circumstances of the shooting that took place in front of the Vons market, and
concerning his resulting injuries and medical treatment, the prosecutor inquired:
(Footnote continued from previous page)
however, is unrelated to that new rule; rather, as reflected in our discussion of the
merits of his contention, he is challenging a principle that Crawford merely
reiterated: when the declarant is available for cross-examination at trial, the
confrontation clause does not limit the use of the declarant‘s out-of-court
statements. (Crawford v. Washington, supra, 541 U.S. at pp. 59–60, fn. 9.)
Finally, defendant ―suggests that this Court adopt the federal practice of
reviewing erroneous rulings for plain error when no objection has been made.‖
―This court, however, has rejected the claim that the forfeiture rule does not apply
in capital cases. (People v. Benavides (2005) 35 Cal.4th 69, 115) [rejecting a
claim that we should conduct ‗ ―plain error review,‖ ‘ notwithstanding forfeiture,
in capital cases]; People v. Cain (1995) 10 Cal.4th 1, 28.)‖ (Dykes, supra, 46
Cal.4th at p. 757.)
51
―Ha[ve] there been any lasting health problems associated with — or any
psychological problems that you have as a result of this gunshot wound?‖ The
defense objected to the question as compound. After the court overruled that
objection, defense counsel stated, ―Objection, relevance as to a portion of the
question.‖20 The court overruled that objection. Shahbakhti then responded, ―I
still see a psychiatrist because of post-traumatic disorder, which is anxiety, and,
yes, I‘m permanently disabled. I will never get the entire full function of my right
arm back.‖
Shahbakhti‘s testimony that he was permanently disabled and never would
regain the full function of his arm was relevant to the allegation of infliction of
great bodily injury. (§ 12022.7.) The sole aspect of this testimony that was
irrelevant at the guilt phase was the statement that ―I still see a psychiatrist
because of post-traumatic disorder, which is anxiety . . . .‖ The admission of this
evidence was harmless error, however, because it is not ―reasonably probable that
a result more favorable to [defendant] would have been reached in the absence of
the error.‖ (Watson, supra, 46 Cal.2d at p. 836.)21 As noted above, in part II.B.2.,
20
The People assert defendant forfeited his contention that victim-impact
evidence should not have been admitted, because he objected only that the
question called for irrelevant evidence. The circumstance that defendant describes
the testimony as ―victim impact evidence‖ does not alter our analysis; defendant
has not cited any authority for the proposition that the admission of irrelevant
victim-impact evidence constitutes an error different from the admission of any
other irrelevant evidence. Thus, defendant‘s ―relevance‖ objection preserved his
present claim.
21
The sole authority defendant cites in support of his assertion that the
admission of victim-impact evidence at the guilt phase violates his federal
constitutional rights is Payne v. Tennessee (1991) 501 U.S. 808, 830, footnote 2,
which held that such evidence is admissible at the penalty phase. Payne does not
stand for the proposition that the admission of irrelevant evidence at the guilt
phase concerning the suffering of a victim denies a defendant the constitutional
(Footnote continued on next page)
52
the properly admitted evidence establishing that defendant was the individual who
committed the crimes at the Vons market was overwhelming. In addition,
Shahbakhti‘s and Weidmann‘s descriptions of the circumstances of the shooting
were undisputed. Finally, the jurors reasonably would expect that an individual
who was shot and disabled, as Shahbakhti was, would experience anxiety. Thus, it
is not reasonably probable that this brief reference to Shahbakhti‘s psychological
injuries affected the verdicts or any findings made at the guilt phase.
4. Rejection of an instruction on lesser included offenses
Defendant contends the trial court should have instructed the jury
concerning second degree murder and voluntary manslaughter in connection with
the charge of the murder of Timothy McVeigh.
―[I]t is the ‗court‘s duty to instruct the jury not only on the crime with
which the defendant is charged, but also on any lesser offense that is both included
in the offense charged and shown by the evidence to have been committed.‘
[Citation.]‖ (People v. Gutierrez (2009) 45 Cal.4th 789, 826.) ―[W]hen the
evidence unquestionably establishes that the defendant is guilty of a serious,
violent offense — but leaves some doubt with respect to an element that would
justify conviction of a capital offense — the failure to give the jury the ‗third
option‘ of convicting on a lesser included offense would seem inevitably to
enhance the risk of an unwarranted conviction. [¶] Such a risk cannot be tolerated
in a case in which the defendant‘s life is at stake.‖ (Beck v. Alabama (1980) 447
U.S. 625, 637.)
(Footnote continued from previous page)
right to a fair trial. Defendant does not otherwise explain how this fleeting
reference to Shahbakhti‘s continuing anxiety violated any federal constitutional
right.
53
―To warrant [an instruction on a lesser included offense], there must be
substantial evidence of the lesser included offense, that is ‗evidence from which a
rational trier of fact could find beyond a reasonable doubt‘ that the defendant
committed the lesser offense. [Citation.] Speculation is insufficient to require the
giving of an instruction on a lesser included offense. [Citations.] In addition, a
lesser included instruction need not be given when there is no evidence that the
offense is less than that charged. [Citation.]‖ (People v. Mendoza (2000) 24
Cal.4th 130, 174.)
Defendant fails to identify any evidence that would support a finding of
either second degree murder or voluntary manslaughter. Instead, he relies upon
the circumstance that the prosecutor requested instructions concerning second
degree murder and voluntary manslaughter ―to protect the record.‖ When pressed
by the court to explain how the jury might find these offenses, the prosecutor
expressed concern that a juror might conclude that defendant did not enter the
Alpha Beta market to commit a burglary, or defendant did not take any money.
The trial court stated that it would not give the requested instructions, based upon
its assessment of the evidence.
According to defendant, the prosecutor‘s statement ―was not speculation —
it was the opinion of the man prosecuting the case,‖ and ―[i]t was not speculation
for [the prosecutor] to opine that the jury might believe that a robbery had not
taken place or that if it had, it was incidental to the murder.‖ The prosecutor‘s
opinion, however, is not evidence, and there is no evidence in this case to support
a conclusion that the individual who entered the store wearing a wig, and who
quickly proceeded to a cash register and pointed a gun at the clerk, did not enter
the store with a felonious intent, or a conclusion that the individual did not rob
Rambo, or a conclusion that the killing of McVeigh did not occur in the course of
these felonies. The only issue was whether defendant was the individual who
54
killed McVeigh in the course of these felonies, because whoever was the
perpetrator was guilty of felony murder. (§ 189.) Therefore, there was no
evidence to support the giving of instructions on the lesser included offenses of
second degree murder or voluntary manslaughter.
5. Asserted prosecutorial misconduct
Defendant contends numerous statements made by the prosecutor during
his opening and closing arguments constituted misconduct.
― ‗ ―The applicable federal and state standards regarding prosecutorial
misconduct are well established. ‗ ―A prosecutor‘s . . . intemperate behavior
violates the federal Constitution when it comprises a pattern of conduct ‗so
egregious that it infects the trial with such unfairness as to make the conviction a
denial of due process.‘ ‖ ‘ [Citations.] Conduct by a prosecutor that does not
render a criminal trial fundamentally unfair is prosecutorial misconduct under state
law only if it involves ‗ ― ‗the use of deceptive or reprehensible methods to
attempt to persuade either the court or the jury.‘ ‖ ‘ ‖ ‘ [Citations.]‖ (People v.
Abilez (2007) 41 Cal.4th 472, 494.) ―To preserve a claim of prosecutorial
misconduct for appeal, a defendant must object and seek an admonition if an
objection and admonition would have cured the harm.‖ (People v. Kennedy
(2005) 36 Cal. 4th 595, 618.) The objection must be made on the same ground
upon which the defendant now assigns error. (People v. Jones (2003) 29 Cal.4th
1229, 1260.)
a. Denigration of defense counsel
When the prosecutor began his opening argument, he stated that ―Nothing I
say this morning or ever in this trial is meant to reflect poorly on the defense
attorneys.‖ He added that he had ―to be willing to get in there and hit hard, I
cannot be namby-pamby and do my job, but I won‘t be critical of them.‖ He
55
further explained that ―I will be critical of defense position. I‘ll be critical of
[defendant‘s] conduct, but nothing I say is meant to reflect on [defense counsel].
[¶] I want to get that straight from the start but they know, they are both big boys
and they know I‘ll hit them hard and I expect them to hit me hard. [¶] We know
these type of cases, murder cases, death penalty cases are going to be very hotly
contested so I expect them to let me have it. I want them to give me their best
shot. That‘s what makes the system work. [¶] They are here to be diligent
advocates. I appreciate that and I‘m here to do the same thing. No hard feelings.
After this we shake hands and go on to our next cases.‖
Defendant did not object to the prosecutor‘s statements, and therefore has
forfeited his challenge to these comments. His claim also fails on the merits.
Defendant asserts that ―[t]his argument made fun of defense counsel and
denigrated their roles as advocates.‖ ―A prosecutor commits misconduct if he or
she attacks the integrity of defense counsel, or casts aspersions on defense counsel.
[Citations.]‖ (Hill, supra, 17 Cal.4th at p. 832.) Nothing in the prosecutor‘s
comments, however, may be understood to be an attack on the integrity of counsel
or to cast aspersions on counsel.
Defendant also perceives denigration in comments by the prosecutor
concerning discrepancies between defense counsel‘s statements and the evidence.
The prosecutor asserted that statements by counsel concerning the events were
speculation, such speculation was intended to aid their client, and the jury should
consider the source of any inferences it drew, in order to ensure that the inferences
were based upon evidence rather than upon impermissible speculation.22 The trial
22
The prosecutor explained, ―I want to show you why what the attorneys say
is not evidence.‖ He then stated that ―[defense counsel] says Mr. McVeigh from
his angle, what is visible from a person at that angle is not the gun held down by
(Footnote continued on next page)
56
court properly overruled defendant‘s objection to these comments. ―[T]he
prosecutor has wide latitude in describing the deficiencies in opposing counsel‘s
tactics and factual account. [Citations.]‖ (People v. Bemore (2000) 22 Cal.4th
809, 846 (Bemore).) For example, we concluded in People v. Medina (1995) 11
Cal.4th 694 that it was unobjectionable for the prosecutor to state that ― ‗any
experienced defense attorney can twist a little, poke a little, try to draw some
speculation, try to get you to buy something . . . .‘ ‖ (Id. at p. 759.) Similarly, the
prosecutor‘s comments in the present case concerning defense counsel‘s
speculation ―[did] not amount to a personal attack on counsel‘s integrity.
[Citations.]‖ (Ibid.) In addition, these comments focused the jury upon the
evidence rather than distracting it from its task. (Cf. Bemore, supra, 22 Cal.4th at
(Footnote continued from previous page)
his right hip. He says they are twisting. Mr. McVeigh had not seen the gun. [¶]
How does he know that[?] How does the defense attorney say to you that Mr.
McVeigh doesn‘t see the gun? . . . [¶] There‘s no evidence that we know of
where Mr. McVeigh was before the shooting, what angle he came at. Certainly
Brenda Rambo had an idea he came from a particular area, but these defense
attorneys are putting forth their views which is not the evidence. They want to put
it in your mind that Tim McVeigh didn‘t see the gun because that helps their
defendant but they were not there. They are speculating . . . in a manner that
plants an idea in your mind that he did not see the gun.‖ Defendant objected ―on
the grounds of misconduct. He‘s addressing attorney‘s conduct and not the facts
or the law.‖ The court responded that it would overrule the objection at that time.
The prosecutor then added, ―My concern is you‘re going to be back in the jury
room and somebody is going to say somebody during the trial said he did not see
the gun. All I ask you to consider is . . . the source of the information. I‘m not
faulting [defense counsel]. They could pull things out of the transcript and say I
did the same thing. [¶] I‘m saying when either of us speak — I‘m not picking on
him because he could do the same thing with me and I invite him to do so if he
wants, but all I‘m suggesting is consider the source, did you hear it from the
attorneys or did you hear it from the witness stand.‖
57
p. 846 [attacks on counsel ―risk focusing the jury‘s attention on irrelevant
matters . . .‖].)
Defendant again perceives denigration of his counsel in the prosecutor‘s
comments regarding defense counsel‘s discussion of the meaning of ―beyond a
reasonable doubt.‖ The prosecutor stated, ―the easy thing to do would be to read
to you from the instructions, like I did. I wrote the instructions out word for word.
[¶] But [defense counsel] didn‘t do that. He decided to create his own chart.
Something from his mind. The judge is not going to give you a chart like this.‖
Defense counsel objected and ―ask[ed] that counsel be restricted to the scope of
my argument and the facts and the law.‖ The court overruled the objection. The
prosecutor then commented that the chart, with a line representing the
―preponderance of the evidence‖ standard at 51 percent and a line ―twice as far
up,‖ implied that the People were required ―to prove their case beyond a hundred
percent.‖
Even if we assume counsel‘s objection encompassed the claim now
asserted by defendant, we find this claim lacking in merit. The prosecutor‘s
comments fell well within the latitude allowed in commenting upon deficiencies in
opposing counsel‘s tactics. (See Bemore, supra, 22 Cal.4th at p. 846; see also
People v. Taylor (2001) 26 Cal.4th 1155, 1166-1167 [prosecutor‘s references to
defense ―tricks‖ or ―moves‖ was not misconduct].) There was nothing deceptive
or reprehensible in the prosecutor‘s comments; rather, they reflected an attempt to
clarify the People‘s burden of proof.
After referencing Officer King‘s testimony concerning her efforts to locate
defendant and his vehicle at his apartment immediately after the shooting at Vons
market, the prosecutor noted that defense counsel had asked King about how
―tough‖ it was to be a police officer, and whether she was afraid when she was in
her patrol car alone. The prosecutor then stated, ―Why was he asking those
58
questions? Does anybody have any idea? What does that have to do with whether
or not his client committed attempted murder that night. What was that about?
What is the purpose of patronizing her. Why are you sitting there —.‖ The
defense ―object[ed] to that remark as being improper, patronizing an officer.‖ The
court overruled the objection, and the prosecutor stated, ―Well, call it what you
like. If that offends [defense counsel], I‘m sorry, I take it back. What is the point
of those questions.‖ Again, these statements fell well within the latitude allowed
for comment upon deficiencies in opposing counsel‘s tactics. (See Bemore, supra,
22 Cal.4th at p. 846.) In addition, in context, the prosecutor‘s comments were
intended to persuade the jury to reject any implication that King‘s testimony
should be discounted because of emotions she might have felt while being placed
in a dangerous situation, and there is no reasonable likelihood that jurors would
view the remark as a personal attack on counsel. (See People v. Young (2005) 34
Cal.4th 1149, 1192 [a review of the entire argument persuaded the court that the
prosecutor‘s comments describing defense counsel‘s discussion of the law as
―unintelligible gibberish‖ and ―garbage‖ were not misconduct; the prosecutor
―was merely determined to correct‖ defense counsel‘s erroneous description of the
law, and ―[t]here [was] no reasonable likelihood that the jury would interpret this
remark as a personal attack on the integrity of counsel‖].)
In reviewing the testimony of Paul Diersing, the prosecutor stated that
defense counsel had asked Diersing ―the question that I found very curious. He
asked him, well, is it company policy to just give [a robber] what he wants. [¶]
And I started thinking about that because it bothered me that he asked that
question and I guess the inference to that question is somehow Mr. McVeigh got
what he deserved for trying to help his friend.‖ Defendant objected; the court
overruled the objection, and defendant requested a sidebar conference. At that
conference, defense counsel asserted that the prosecutor exceeded the latitude
59
allowable in permissible argument ―when he attributes comments to [defense
counsel], some attempt to blame a victim.‖ Defense counsel acknowledged that
the prosecutor was ―entitled to argue that such an inference would be false and
misplaced. . . . But it‘s his reference to the state of mind of the attorneys that‘s
inappropriate.‖ The prosecutor responded, ―I don‘t think I said it that way, but the
question which was asked of the witness by the defense is was he following
company policy. I don‘t know what was the relevance of that question, what the
purpose of the question was other than Mr. McVeigh did something wrong and got
shot because of it.‖
The court responded that defense ―counsel‘s concerns are well taken,‖ and
suggested that the prosecutor ―refrain from doing that.‖ The court also stated that
it would not admonish the jury ―at this stage,‖ but would consider doing so ―at the
conclusion of all the arguments.‖ Nonetheless, immediately following the sidebar
conference, the court explained to the jury that the court gave wide latitude to
counsel, but the jury should focus upon the evidence and the law, and ―the conduct
and thoughts of counsel is not something for you to be looking at and focusing
on.‖ Following these comments, the prosecutor stated: ―I‘m not criticizing
[defense counsel]. It‘s the evidence they are eliciting, the question which was
asked of that witness Mr. Diersing[,] was he following company policy. [¶] Well,
that question, what is that to lead us to believe, that somehow Timothy McVeigh
did something wrong, and because he did something wrong he was killed. That is
ludicrous.‖
Not only did the court admonish the jury immediately following the sidebar
conference, it also addressed this point at the conclusion of the prosecutor‘s
opening argument, stating that ―[t]he district attorney is allowed to comment on
the questions of witnesses that have testified before you and those questions were
put to the witness by counsel for defendant. He‘s entitled to comment on those
60
answers. I think that was the thrust of his comments. [¶] However, I have to be
careful to caution you that the thought processes of the attorneys, whatever those
are, the intent of the attorneys, I don‘t want you speculating about that. That‘s just
something that is not within the ambit of the evidence for your consideration.‖ In
addition, in his argument, defense counsel explained what he believed to be the
relevance of Alpha Beta‘s policy that employees comply with a robber‘s demands
and thereby enhance the safety of employees. Counsel stated: ―Did [McVeigh]
run up and grab a gunman, seeing a gun? No, that‘s not what happened. He‘s
been trained, he knows the store policy. If he‘d seen the gun, he wouldn‘t have
done that. That‘s what this testimony was about.‖
There is no merit in defendant‘s claim that the prosecutor‘s comments
concerning the question posed to Diersing had the effect of denigrating counsel.
The prosecutor‘s comments focused upon the inference to be drawn from the
question, not upon defense counsel‘s state of mind or intent. A prosecutor is not
prohibited from challenging an inference raised by a question merely because
defense counsel thereby may be cast in a poor light for having posed the question.
The prosecutor‘s statement that ―it bothered me that he asked that question‖ did
not add anything to the prosecutor‘s commentary upon the evidence that was not
implicit in his observation that defense counsel‘s question seemed to raise an
unfair inference.23 In addition, even if a juror initially might have construed the
23
Defendant relies upon People v. Pitts (1990) 223 Cal.App.3d 606, which
states that a prosecutor may not portray defense counsel as a villain who is
attacking the victim. (Id. at p. 704.) In Pitts, the prosecutor‘s statements ―in
essence accused defense counsel of contributing to the ruination of [a witness‘s]
life,‖ and ―reasonably [could] be interpreted as a subtle accusation that defense
counsel knowingly presented perjured testimony.‖ (Id. at p. 705.) In contrast, the
prosecutor‘s comments in the present case did not attack defense counsel in any
such manner.
61
comments as critical of defense counsel, the court‘s admonitions clarified that the
prosecutor‘s statements were relevant only as commentary upon the evidence, and
that the jurors were not to speculate concerning counsel‘s thought process or
intentions. (See People v. Friend (2009) 47 Cal.4th 1, 31 (Friend) [the court‘s
admonitions ―insured that the jury understood that [the prosecutor‘s] comments
were irrelevant to its consideration of the case‖].)
b. Shifting the burden of proof
At various times, the prosecutor expressed confusion and lack of
understanding concerning the nature of the defense. Based upon these comments,
defendant claims the prosecutor‘s statements shifted the burden of proof to the
defendant. As noted above, in part II.B.1., the prosecutor observed during his
opening argument that in defendant‘s opening statement, defense counsel had
avoided stating who had committed the charged crimes, but had referred to
defendant twice by name when discussing the incident at the Vons market. The
prosecutor then stated, ―So I don‘t know what the defense is in this case. I don‘t
know if they are saying now it‘s [defendant,] now that all this evidence has come
in[,] or if they are still saying it‘s some robber, we don‘t know who it is, but
there‘s some other interesting things he talked about in his opening statement. I
want to point it out to you to show how the defense tenor has changed during the
point of this trial.‖ Defense counsel then objected, ―This is not a comment on the
facts or the law.‖ The court overruled the objection.
Similarly, after reviewing the evidence, the prosecutor stated: ―So I think
the defense is going to say he didn‘t do it. I don‘t know. I‘ll have to wait. I do
not know what the defense is to this case yet. I‘m waiting to hear.‖ Defendant did
not object.
62
When the prosecutor began to discuss the witnesses‘ identification of
defendant, the prosecutor stated: ―Now just a couple things about identification
because I don‘t know what the defense is going to say when they get up here. I
don‘t know if they are going to concede [defendant] committed these crimes or
not, but you‘ll be given an instruction on how to consider eyewitness testimony.‖
Defendant did not object.
As he reached the end of his opening argument, the prosecutor told the
jurors that he wanted to talk about the defense. He stated: ―I have a blank paper
because I‘m not sure exactly what the defense is yet. I‘m going to sit here like you
and listen to [defense counsel]. I don‘t know what he‘s going to say.‖ The
prosecutor then identified a number of questions he would be waiting to hear
answered by defense counsel — Did defendant rob Bugbee? Did defendant fire a
handgun at Weidmann and Shahbakhti? Why did defendant leave his apartment
on May 31, 1994, with the door open, and the lights on? Why did defendant
possess a .380-caliber handgun and ammunition, sunglasses, a purple hooded
sweatshirt, laser sights, and wigs? Was defendant ―guilty of special circumstance
murder of Timothy McVeigh[?]‖ Defendant did not object.
Following these comments, both the prosecutor and the trial court reminded
the jury that the burden of proof rested upon the prosecution. The prosecutor
ended his opening argument by stating he would take notes as defense counsel
spoke, ―and because I have the burden of proof I do get to rebut what he says. [¶]
I don‘t get to argue everything all over, but I can rebut the points he brings up
because it‘s my burden to prove that this defendant committed these crimes . . . .‖
The court then advised the jury of various principles. As is relevant here, the court
stated: ―There‘s certain legal requirements that go with these types of proceedings
and the burden of proof is on the People, or on the State. The defendant has no
burden of proof in the criminal trial — you‘ll see it again in the instructions, and
63
again I want to be careful that you not misunderstand the comments that were
being made this morning, and I‘m not saying they had any intent other than that.
[¶] The evidence can be commented on and the law can be commented on, but I
thought just at the end the district attorney said the burden of proof is on the
People, and that‘s true. I want to make sure there‘s no misunderstanding about
that.‖
In his closing argument, the prosecutor returned to the theme of ―waiting to
hear what the defense was,‖ and attacked defense counsel‘s argument. He then
stated to the jury: ―I am very concerned, representing the State, that one of you
has missed the focus of this trial. And that is a nightmare to me. That one of the
[jurors] that I‘m looking at just doesn‘t get it.‖ He further stated that ―I lie awake
at night worrying that you people will not get it. It is not about what color his
shoes were, what color his wig was, what hand he held the gun in, whether Brenda
Rambo was emotional. Does that change whether he killed Timothy McVeigh?
Does it matter that he‘s five-eight or six-two? Of course not.‖ Defendant did not
object to these statements.
Defendant failed to object to any of these comments on the ground they
shifted the burden of proof to defendant. Therefore, he has forfeited this claim.
The claim also fails on the merits, because the comments did not indicate that
defendant bore the burden of proof. In the circumstances of this case, in which
there was overwhelming and seemingly irrefutable evidence that defendant
committed the crimes charged, the prosecutor‘s comments merely highlighted his
observation that there seemed to be no coherent defense to the charges. Finally,
had any juror interpreted the comments to indicate that defendant had a burden of
proof, this impression would have been dispelled by the instructions and the
numerous reminding the jurors that the People bore the burden tof proving
defendant‘s guilt. (See People v. Bradford (1997) 15 Cal.4th 1229, 1340 [the
64
court, noting that the prosecutor had reiterated that the prosecution had the burden
of proof, observed that ―[a] distinction clearly exists between the permissible
comment that a defendant has not produced any evidence, and on the other hand
an improper statement that a defendant has a duty or burden to produce evidence,
or a duty or burden to prove his or her innocence‖].)
c. Vouching for the credibility of witnesses
Defendant claims the prosecutor vouched for the credibility of Joseph
Loya, who followed defendant‘s vehicle after the Vons market shooting, Officer
King, who attempted to locate defendant at his apartment after that shooting, and
Officer Jansing, who arrested defendant in San Francisco. ―A prosecutor may
make ‗assurances regarding the apparent honesty or reliability of‘ a witness ‗based
on the ―facts of [the] record and the inferences reasonably drawn therefrom.‖ ‘
[Citation.] But a ‗prosecutor is prohibited from vouching for the credibility of
witnesses or otherwise bolstering the veracity of their testimony by referring to
evidence outside the record.‘ [Citation.]‖ (People v. Turner (2004) 34 Cal.4th
406, 432-433.)
When the prosecutor began to discuss the testimony of Loya, he referred to
him as ―a nice young man who did something very important in this case. [¶] . . .
[¶] Joseph Loya deserves our thanks. He went to the trouble of chasing after
somebody he felt did something wrong.‖ After reviewing Loya‘s actions and his
role in identifying defendant, the prosecutor stated: ―So these are the kinds of
people we presented to you as witnesses. This is the kind of young man that you
saw here who was willing to put himself out to do what he felt is right. That is the
nature and quality of these witnesses.‖ Defendant did not object to these
comments.
65
After the exchange noted above, in which the prosecutor questioned the
defense‘s purpose in ―patronizing‖ Linda King by asking her questions about how
she felt as a police officer alone in her patrol vehicle, the prosecutor stated: ―Here
is a police woman doing her job. She‘s willing to put herself on the line. She
knows she‘s there to look for[] somebody who has just committed attempted
murder. She‘s sitting there in the dark on her own willing to sacrifice, to be there
to catch people like him. [¶] I don‘t know what the point was of those questions
about her being scared. She was there because she believes in what she does.
She‘s a police officer. She did what she was supposed to do.‖ Other than his
objection to the prosecutor‘s comment concerning the defense‘s―patronizing‖ the
witness, noted above, defendant did not object to these statements.
With respect to Officer Jansing, the prosecutor stated: ―I wanted you to see
the quality of him. I brought him down from San Francisco. I wanted you to see
this is a man who is doing his job. Here‘s a guy — you saw the kind of man he is.
Attention to detail. [¶] He didn‘t have to run that plate. Something didn‘t look
right and fortunately there are people like Officer Jansing who take their job
seriously in life. [¶] It could have been easy for him in the middle of his shift to
drive by a parked car and not think anything of it. A guy like this and a guy like
Mr. Loya are to be given credit. They went the extra distance. To run a plate he
didn‘t have to do and did everything by the book. Fortunately for us and
fortunately for law enforcement there are people like Mr. Jansing who are willing
to do their jobs properly and that is how this man got captured.‖ Defendant did
not object.
At the end of his closing argument, the prosecutor stated: ―I am confident
you will have no problem in quickly resolving this case because there is no
defense. It is indefensible what he did. He just happened to get caught. Thank
you Mr. Loya, thank you Officer Jansing. [¶] That is why we‘re here. He almost
66
got away with it except for people like that who are willing to go the extra
distance.‖ Defendant did not object.
Because the defense did not object that the prosecutor was vouching for the
witnesses‘ credibility, defendant has forfeited this contention. His claim also fails
on the merits, because the prosecutor‘s comments concerning these witnesses were
based upon facts established by the testimony and did not refer to evidence outside
the record. The prosecutor‘s remarks did not improperly vouch for the credibility
of these witnesses.
d. Asking the jury to conduct an experiment
The prosecutor stated that ―[y]ou‘re going to be asked by both sides to look
at the weapon. [¶] I invite you to look at the trigger pull. You can look at it on
single action and double action. It is a significant pull to get the trigger to pull. I
want you to put the safety on. You‘ll see when you put on that safety it‘s
impossible to get that gun to fire.‖ Not only did defendant fail to object to these
comments, but he earlier agreed that the jurors should be permitted to inspect the
weapon in order to allow them to appreciate its mechanical operation.24
Therefore, he has forfeited any claim regarding these comments.
24
Before Dennis Fuller testified concerning the firearm, the court and the
parties discussed the conditions under which the jury should examine the weapon.
Defense counsel stated that ―we‘re going to need them to assess the trigger pull.
That‘s something I want them to do. I want the jurors to understand both actions,
and it‘s certainly relevant in terms of several of the themes in the case both now
and if we get to a penalty phase.‖ The court stated, ―if both of you feel that the
jury should be aware of the mechanics of the weapon, I will permit testimony
about it and also let the jurors see the weapon back in the jury room. . . . If you
want the jurors out here in open court to go through touching the weapon, I can do
that also. What‘s your preference?‖ Defense counsel responded, ―I‘m not so
concerned about when they do it as long as they have the opportunity to both see
how the firearm works and get a physical idea of what the trigger pull is like.
Whether that‘s here or in the jury room doesn‘t matter to me as long as the court‘s
(Footnote continued on next page)
67
This claim also fails on the merits. ― ‗A jury‘s verdict in a criminal case
must be based on the evidence presented at trial, not on extrinsic matters.‘ . . . A
juror commits misconduct if the juror . . . engages in an experiment that produces
new evidence [citation].‖ (People v. Wilson (2008) 44 Cal.4th 758, 829.) The
prosecutor‘s invitation that the jurors examine the firearm was a request that they
consider the evidence presented at trial, not that they produce new evidence
through an experiment. Thus, there was no impropriety in his remarks.
e. Appealing to the jurors’ passion or prejudice
Defendant claims that various statements by the prosecutor were intended
to appeal to the jurors‘ passion or prejudice. ―It is, of course, improper to make
arguments to the jury that give it the impression that ‗emotion may reign over
reason,‘ and to present ‗irrelevant information or inflammatory rhetoric that
diverts the jury's attention from its proper role, or invites an irrational, purely
subjective response.‘ [Citation.]‖ (People v. Padilla (1995) 11 Cal.4th 891, 956-
957, overruled on other grounds in Hill, supra, 17 Cal.4th at p. 823, fn. 1.)
Defendant did not object to any of the prosecutor‘s statements on this basis, and
therefore has forfeited this claim. As explained below, the claim also fails on the
merits.
The first challenged comments were made when the prosecutor argued that
the evidence of defendant‘s guilt was overwhelming, and ―the defense wants you
(Footnote continued from previous page)
satisfied with the safety.‖ Following further discussion, defense counsel added:
―Just so we don‘t slow down the proceedings. I know that handling the weapon
for many people will be very distracting so I would suggest the jurors themselves
not handle it today but upon request it would be available for them later on in the
jury room.‖
68
just to look at the things that will walk [defendant] out of here . . . .‖ As noted
above, the prosecutor expressed concern that one of the jurors would not
understand the relevant facts. ―I am very concerned, representing the State, that
one of you has missed the focus of this trial. And that is a nightmare to me. That
one of the [jurors] that I‘m looking at just doesn’t get it. I know most of you have
common sense. . . . [¶] If this man went to Alpha Beta with the intent to rob and
do a burglary, he is guilty of special-circumstance murder. [¶] I lie awake at night
worrying that you people will not get it. It is not about what color his shoes were,
what color his wig was, what hand he held the gun in, whether Brenda Rambo was
emotional. Does that change whether he killed Timothy McVeigh? Does it matter
that he‘s five-eight or six-two? Of course not.‖ (Italics added.)
Defendant asserts the italicized comments ―engaged the personal pride of
the jurors,‖ ―injected into the case broader issues than [defendant‘s] guilt[,] and
invited the jury to render a verdict based upon their personal pride or public
opinion.‖ Viewed in context, however, the statements merely emphasized the
prosecutor‘s argument that the evidence of guilt was overwhelming, and that
jurors should not become distracted by irrelevant circumstances or arguments.
The prosecutor‘s arguments focused the jury on its role, did not invite an irrational
or emotional response, and did not refer to public opinion. The cases cited by
defendant do not support a contrary conclusion.25
25
Defendant cites People v. Morales (1992) 5 Cal.App.4th 917, in which the
prosecutor told jurors to imagine how they would explain to their spouses or
significant others that they let the defendant go, and asserted the reaction would
be, ―What were you thinking of?‖ The court acknowledged that a prosecutor may
not suggest that jurors consider public opinion in deciding guilt, but concluded the
defendant had forfeited the claim by failing to object. (Id. at p. 928.) In United
States v. Polizzi (9th Cir. 1986) 801 F.2d 1543, the prosecutor urged the jury to
join the war on crime. ―Although improper (for telling the jury it had any
(Footnote continued on next page)
69
The second challenged comment was made in response to an inconsistency
in the defense‘s argument — the defense continued to question the witnesses‘
identification of defendant as the perpetrator of these crimes, but also focused
upon mitigating evidence, such as the circumstance that the perpetrator did not
shoot Rambo. The prosecutor commented, ―They can‘t tell you on the one hand,
. . . some gunman robbed Alpha Beta and Brenda Rambo, yet the defendant is a
nice guy for not shooting Brenda Rambo. . . . [¶] . . . [¶] . . . After he shot her
friend in cold blood, he‘s a good guy now? [¶] Maybe it‘s me. Maybe my
priorities are screwed up, I don‘t know. Maybe you think he is a nice guy.‖
(Italics added.) The prosecutor then noted that the robbery of the Alpha Beta
market occurred six weeks after the shooting of Shahbakhti, ―and they want you to
think he‘s kind, not coldly calculating?‖ Defense counsel then ―object[ed] to this
argument. It is beyond the scope, and it is not in response to anything I said.‖ The
court overruled the objection.
(Footnote continued from previous page)
obligation other than weighing the evidence), whatever prejudice flowed from this
statement was adequately cured when the court later instructed the jury that its
function was ‗to determine the guilt or innocence of the accused from the evidence
in this case‘ and that the ‗statements and argument of counsel are not evidence.‘ ‖
(Id. at p. 1558.) In United States v. Monaghan (D.C. Cir. 1984) 741 F.2d 1434,
the court acknowledged that ―[a] prosecutor may not urge jurors to convict a
criminal defendant in order to protect community values, preserve civil order, or
deter future lawbreaking. The evil lurking in such prosecutorial appeals is that the
defendant will be convicted for reasons wholly irrelevant to his own guilt or
innocence. Jurors may be persuaded by such appeals to believe that, by convicting
a defendant, they will assist in the solution of some pressing social problem. . . .
[¶] But a request that the jury ‗condemn‘ an accused for engaging in illegal
activities is not constitutionally infirm, so long as it is not calculated to excite
prejudice or passion.‖ (Id. at pp. 1441-1442, fns. omitted.)
70
Defendant asserts the italicized comment engaged the jurors‘ personal
pride. Viewed in context, the comment is merely a criticism of the suggestion that
defendant‘s decision not to shoot Brenda Rambo should be considered in resolving
the issues presented. The comment did not invite an irrational or emotional
response from the jury.
Finally, the prosecutor stated: ―If twelve people from this community, after
hearing all this evidence, finding the wigs, the murder weapon, the bullets in his
house, if you cannot reach a decision on this, we are in sad shape. [¶] So that‘s
what I‘m asking you to do. The success of this system depends on people such as
you to work together back there. . . . Don‘t get in there and express an emphatic
opinion. Keep open. You have to work together. This is a deliberation process.‖
(Italics added.)
Defendant does not explain how the italicized comment improperly
appealed to the jury. Therefore, we need not consider this challenge. (See People
v. Catlin (2001) 26 Cal.4th 81, 133 (Catlin) [because defendant ―fails to offer any
authority or argument in support of [his] claim, . . . it is not considered here‖];
People v. Barnett (1998) 17 Cal.4th 1044, 1182 (Barnett) [because defendant
―fails . . . to support that claim with adequate argument[, w]e . . . reject it as not
properly raised‖].) The claim also fails on the merits. The statement emphasized
the strength of the prosecution‘s case and did not invite an irrational or emotional
response from the jury.
f. Futility of objections
Defendant asserts that ―[d]efense counsel objected to the vast majority of
the instances of misconduct‖ and that additional objections would have been futile.
―A defendant will be excused from the necessity of either a timely objection
and/or a request for admonition if either would be futile. [Citations.] In addition,
71
failure to request the jury be admonished does not forfeit the issue for appeal if
‗ ―an admonition would not have cured the harm caused by the misconduct.‘ ‖
[Citation.] Finally, the absence of a request for a curative admonition does not
forfeit the issue for appeal if ‗the court immediately overrules an objection to
alleged prosecutorial misconduct [and as a consequence] the defendant has no
opportunity to make such a request.‘ [Citations.]‖ (Hill, supra, 17 Cal.4th at pp.
820-821.)
As is reflected in our review of the contentions raised concerning the
prosecutor‘s argument at the guilt phase, defendant objected to only six of the 18
instances of claimed misconduct. In addition, other than the objections related to
his claim that certain comments denigrated defense counsel, none of the objections
was voiced on the basis upon which he now relies. Finally, with respect to the
claimed denigration of defense counsel, the trial court admonished the jury that the
conduct and thought processes of counsel were not relevant to the jury‘s task. We
find no support for the assertion that it would have been futile to interpose
objections and request that the jury be admonished.
6. Cumulative error
Defendant contends that the various claimed errors, considered together,
―resulted in convictions which are constitutionally unreliable in violation of the
Fifth, Sixth, Eighth, and Fourteenth Amendments of the federal constitution.‖ The
only errors we have found are (1) the premature admission of evidence concerning
out-of-court identifications (that is, before the witness testified that he or she had
made the identification and that it was a true reflection of his or her opinion at that
time), and (2) the admission of evidence that Shahbakhti suffered anxiety as a
result of being shot. These two errors, considered together, did not result in
constitutionally unreliable verdicts or findings.
72
C. Penalty phase
1. Admission of victim-impact evidence concerning Shahbakhti
As noted above, Shahbakhti testified at the guilt phase concerning the
anxiety he suffered as a result of being shot by defendant. We concluded the
testimony was irrelevant at that phase of the trial, but harmless. Defendant
contends this evidence also was irrelevant at the penalty phase, because it did not
relate directly to the capital offense. We disagree. At the penalty phase, this
testimony was admissible under section 190.3, factor (b), as ―evidence of the
emotional effect of defendant‘s prior violent criminal acts.‖ (People v. Price
(1991) 1 Cal.4th 324, 479; see People v. Davis (2009) 46 Cal.4th 539, 617-618.)
2. Asserted prosecutorial misconduct
Defendant claims the prosecutor committed misconduct in the course of
cross-examining defense expert witnesses and during his argument. As noted
above, in evaluating this claim we consider whether the prosecutor used deceptive
or reprehensible methods to persuade the jury. In addition, as noted, a defendant
must object and request an admonition in order to preserve a claim of
prosecutorial misconduct, and the objection must be made upon the same ground
as that which the defendant assigns as error on appeal.
a. Cross-examination of defense experts
Defendant contends that during the prosecution‘s cross-examination of
Norman Morein and Michael Mantell, the prosecutor improperly elicited evidence
of defendant‘s future dangerousness. He also contends the prosecutor denigrated
Mantell. As explained below, these contentions find no support in the record.
Norman Morein testified that, based upon his review of prison records
related to defendant‘s incarceration during the years 1983 to 1993, in Morein‘s
opinion defendant would adjust very well to prison. During redirect examination,
defense counsel asked Morein whether a probation report prepared at the time a
73
defendant is convicted and sentenced is important in determining the prisoner‘s
classification within the prison. Morein responded, ―Only the offense is the
important thing.‖ The prosecutor began his recross-examination by pursuing this
topic, asking Morein to identify the offenses for which defendant was sentenced to
prison in 1983. Morein identified attempted murder and robbery, but was
uncertain of the number of counts. The prosecutor then inquired whether the
number of offenses was important in classifying a prisoner. The defense objected
that the question was irrelevant to Morein‘s testimony. The objection was
sustained. The prosecutor then asked Morein to confirm he was ―here giving an
opinion [concerning] somebody‘s adjustment.‖ Morein agreed. The prosecutor
followed up by asking, ―And would you not agree with me that you need to look at
the person‘s past in order to determine what type of risk they might be in the
future?‖ Morein responded, ―That‘s true.‖ The prosecutor then asked whether
Morein was aware when he was reviewing defendant‘s prison records that
defendant had attempted to kill three police officers (referring to defendant‘s
conduct during the police chase in 1982). Morein confirmed he was aware of that
fact. The prosecutor then asked, ―How did that factor into your opinion in this
case?‖ Morein responded, ―It didn‘t.‖ At this point, defense counsel objected that
―it‘s not relevant as to his opinion as to adjustment in prison. If it‘s classification,
it‘s another question.‖ The court overruled the objection, and Morein testified that
the prison sentence rather than the nature of the crime was the factor that
determined where a prisoner was assigned.
Defendant asserts the prosecutor improperly introduced evidence of future
dangerousness during this exchange. (See People v. Avila (2007) 38 Cal.4th 491,
610 [― ‗[E]xpert testimony that a capital defendant will pose a danger in the future
if his life is spared is inadmissible.‘ [Citation.] A prosecutor can, however,
‗properly explore on cross-examination the basis for an expert‘s prediction that a
74
capital defendant will pose no future danger if sentenced to life without
parole.‘ ‖].) Defendant did not object that the prosecutor was seeking or eliciting
evidence of future dangerousness, and therefore has forfeited this claim. The
claim also fails on the merits, because the questions did not elicit testimony that
defendant would pose a danger in the future.
Defendant‘s challenge to the prosecutor‘s treatment of Mantell focuses
upon questions concerning defendant‘s deteriorating performance during the time
he served as a Los Angeles County Sheriff‘s deputy. During cross-examination,
the prosecutor asked, ―There are a number of reports that you saw that were very
critical of [defendant‘s] behavior that you talked about, true?‖ The witness
responded, ―That‘s correct. It came later. Not at [the] Firestone [Station],
necessarily.‖ The prosecutor then stated, ―My question — I don‘t want to stand
and argue with you.‖ Defendant then objected that ―[t]he question was so broad it
was responsive.‖ The court interjected, ―Hold on. I think we‘re doing very well.
We just need to continue.‖ The prosecutor then stated: ―If you can, doctor, can
you listen to my question and we‘ll get to it all. [¶] Now, did you in fact see a
number of documents which were critical of this man‘s performance as a [sheriff‘s
deputy]?‖ The witness answered, ―Yes, I did.‖ The prosecutor then asked, ―Now,
in the beginning when he was [assigned to] the jail and Firestone [Station] things
appeared to be fine; is that correct?‖ The witness responded, ―That‘s true.‖
Defendant asserts on appeal that the questions were argumentative, but he
did not object on that basis below. Accordingly, this claim is forfeited. The claim
also fails on the merits. ―An argumentative question is a speech to the jury
masquerading as a question. The questioner is not seeking to elicit relevant
testimony.‖ (People v. Chatman (2006) 38 Cal.4th 344, 384.) In the exchange set
forth above, the prosecutor‘s questions were directed toward obtaining
confirmation of relevant facts, and were not a speech to the jury. The
75
circumstance that the prosecutor confronted the witness, challenged the witness‘s
responses, or attempted to control nonresponsive testimony does not render the
prosecutor‘s questions ―argumentative.‖ Other than citing the questions and
responses set forth above, defendant merely notes that the trial court sustained his
objections that other questions were argumentative. Finally, defendant‘s
contention that the questions were argumentative seems to be made in support of
his claim that the prosecutor denigrated defense experts and introduced evidence
of future dangerousness, but defendant does not explain how the prosecutor‘s
questions to Mantell support that claim. Absent an explanation, we need not
consider this claim on appeal. (See Catlin, supra, 26 Cal.4th at p. 133; Barnett,
supra, 17 Cal.4th at p. 1182.) This claim also fails on the merits, because the
questions concerning defendant‘s performance as a sheriff‘s deputy, and counsel‘s
efforts to focus Mantell‘s responses, did not denigrate the witness or elicit
testimony concerning future dangerousness.
b. Argument
Defendant sets forth 12 statements made by the prosecutor during
argument, and then recites various general principles concerning prosecutorial
misconduct. To the extent we can discern his claims of error, we find them to be
without merit.
First, in the course of his argument, the prosecutor recalled various flippant
remarks defendant had made during the commission of several crimes, and
asserted that these comments disproved the defense theory that defendant acted
out of stress or trauma. He further commented that ―[i]f you were to look at the
defense witnesses, you would think all police officers just retire because of stress,‖
and stated that ―[t]here are . . . thousands and thousands of people, who complete
their jobs as law enforcement officers and don‘t go out and start killing people. [¶]
76
That is how ridiculous the defense is. They want you to believe that because he
was in the Firestone District for two years and saw a person in a car fire, that that
somehow — in some shape or form made him start to go out and shoot people and
commit robberies. It‘s preposterous. [¶] Folks, there are police officers,
dedicated professionals, throughout this entire country working tough jobs. Not
just in Firestone [Station], but in Newark, New Jersey, in Harlem, in the Bronx, in
Detroit, areas that are . . . even tougher than Los Angeles.‖ At this point, defense
counsel stated, ―We need to see you at the bench again, please.‖ The court
responded, ―No, I‘ll sustain the objection as to the last comments.‖ Defense
counsel requested that the jurors be instructed to disregard the comments. The
court responded. ―Please. [¶] Let‘s proceed.‖
Defendant asserts that the references to the defense as ―ridiculous‖ and
―preposterous‖ denigrated counsel. Defendant did not object to these specific
statements, and therefore forfeited this claim. Even if his subsequent objection is
construed to refer to these comments26 however, this claim fails on the merits. ―It
is, of course, improper for the prosecutor ‗to imply that defense counsel has
fabricated evidence or otherwise to portray defense counsel as the villain in the
case. . . . Casting uncalled for aspersions on defense counsel directs attention to
largely irrelevant matters and does not constitute comment on the evidence or
argument as to inferences to be drawn therefrom.‘ ‖ (People v. Fierro (1991)
1 Cal.4th 173, 212.) The prosecutor‘s remarks, however, attacked the defense
26
In light of the circumstances that (1) the only prior objection had been that
certain comments exceeded the scope of what constitutes an aggravating factor,
and (2) this objection followed statements about the service of police officers in
other areas of the country, it appears the objection and the court‘s response related
to the irrelevancy of the prosecutor‘s tangential remarks concerning dedicated
professionals working in areas ―tougher than‖ than Los Angeles.
77
theory, not defense counsel‘s integrity, and did not constitute denigration of
counsel.
Second, defendant complains that the prosecutor stated that ―[defendant]
thinks he‘s smarter than everybody else. [¶] And he is. He is of superior
intelligence. That‘s why I wanted to bring out to you his IQ. He is smarter than
probably 95 percent of the people on the planet.‖ Defendant objected that there
was no evidence to support the statement. The court responded, ―I‘ll let that
comment go and let counsel proceed.‖ The prosecutor then stated, ―I brought out
testimony that his IQ was 123 and he was of superior intellect. Superior intellect.
You decide what that means. That is a very high IQ. You got to be smart to be
able to bust out of a prison cell.‖ Defendant asserts this argument has no
foundation in the record, and he notes that it is misconduct for a prosecutor to
misstate the facts. (See People v. Boyette (2002) 29 Cal.4th 381, 435.) The
argument that defendant is of superior intelligence is, however, supported by
Norman Morein‘s testimony that defendant has an IQ of 123, which is ―in the
superior range.‖ The assertion that ―[h]e is smarter than probably 95 percent of
the people on the planet‖ is an inference the prosecutor drew from the evidence
that would have been obvious to any juror when the prosecutor responded to
defendant‘s objection by referring to the evidence of defendant‘s IQ and stating,
―[y]ou decide what that means.‖
Third, in the course of discussing the actions taken by defendant to evade
law enforcement officers after a prior bank robbery, the prosecutor stated that
defendant was willing to shoot at police officers, but when they returned fire,
defendant ―puts his hands out, waves them. He wants no more.‖ The prosecutor
added, ―Everything is okay with [defendant] when he‘s the one doing the
shooting,‖ but when he was at risk, he did not want to be killed. ―It shows you the
kind of man he is. That is an aggravating factor. When his life is on the line, he
78
doesn‘t like it.‖ Defendant objected that the evidence and argument were
improper with respect to section 190.3, factor (b), which relates to criminal
activity involving the use of force. The court sustained the objection ―as to the
characterization of the defendant under factor (b) and ask[ed] the jury to disregard
that.‖ Defendant asserts the prosecutor‘s comment that, when defendant‘s life was
on the line, ―he doesn‘t like it,‖ appealed to the passions of the jury and asserted
facts that were not in evidence. He did not object on this basis in the trial court,
and therefore has forfeited this claim. In addition, he offers no convincing reason
why the court‘s sustaining of the objection to the prosecutor‘s fleeting comment
and admonition to the jury were inadequate to cure any error. (See Friend, supra,
47 Cal.4th at p. 31 [the court‘s admonitions ―insured that the jury understood that
[the prosecutor‘s] comments were irrelevant to its consideration of the case‖].)
Fourth, the prosecutor stated that ―it seemed to me [that Michael Redd,
defendant‘s son,] tried to exaggerate to make things sound a little better than they
really were.‖ The prosecutor then mentioned various facts to which the son
testified, and stated it was improbable that the witness remembered events from a
very young age, or that the witness could read at two years of age. The prosecutor
also stated that ―[h]e told us his father worked in a mall in Willits. While the other
children said no, they don‘t remember him working at all.‖27 After defendant
objected on the ground that the prosecutor‘s remark ―misstates the evidence,‖ the
27
Michael Redd testified that defendant ―got a job working on a mall [in
Willits], but the funding for the mall ran out and they stopped the project.‖ Sean
Redd testified that defendant did not work in Willits, and specifically that
defendant did not work ―in a mall.‖ Melissa Redd testified that defendant was
unable to find work in Willits. When subsequently asked whether she could recall
whether defendant found ―any particular job up there,‖ she responded, ―No, I was
too young. I can‘t recall.‖
79
court sustained the objection. Defendant claims the prosecutor ―belittled the
mitigation testimony, saying that Michael Redd exaggerated his testimony.‖
Defendant did not object to the prosecutor‘s statement that Michael Redd had
exaggerated. Therefore, he has forfeited his claim. The claim also fails on the
merits. ―Closing argument may be vigorous and may include opprobrious epithets
when they are reasonably warranted by the evidence.‖ (People v. Sandoval (1992)
4 Cal.4th 155, 180.) The prosecutor‘s statements reflected facts and inferences
from the record, and did not constitute misconduct. (See ibid. [―Referring to
testimony as ‗lies‘ is an acceptable practice so long as the prosecutor argues
inferences based on the evidence and not on the prosecutor‘s personal belief‖].)
Fifth, the prosecutor noted Richard Lum‘s testimony that he saw defendant
at a recycling center in San Francisco in August 1994 and thereafter. The
prosecutor stated he did not dispute that testimony, ―[b]ut [Lum] got caught
exaggerating and stretching the truth.‖ When defendant objected on the ground
that this ―misstates the testimony,‖ the court sustained the objection. Defendant
notes only that the prosecutor accused Lum of exaggerating, and does not set forth
any argument as to why this accusation constituted prosecutorial misconduct.
Therefore, we need not consider the propriety of this comment. (See Catlin,
supra, 26 Cal.4th at p. 133; Barnett, supra, 17 Cal.4th at p. 1182.) Moreover,
defendant offers no reason why the trial court‘s sustaining of the objection did not
cure any error, or why an admonition would not have cured any lingering
confusion.
Sixth, with respect to the former sheriff‘s deputies who testified concerning
the Firestone Station, the prosecutor observed: ―And do you remember, it‘s
something interesting, did you notice that all three of the witnesses, the former
[deputies], that knew Mr. Redd, they all used the exact same words, they all said it
was like a war zone?‖ When defendant objected that this argument ―misstates the
80
testimony,‖ the court sustained the objection. In his opening brief, defendant
states that the prosecutor ―noted that all of the ex-police witnesses had said that
Firestone was like a war zone. A defense objection was sustained.‖ In
defendant‘s reply brief, he recites as an instance of misconduct ―[a]rguing that
Firestone was like a war zone, to which an objection was sustained.‖ He does not
otherwise address the prosecutor‘s statement. Assuming defendant‘s complaint is
that the prosecutor misstated the record (one of the three ex-deputies referred to a
―war zone,‖ one referred to a ―combat zone,‖ and the third did not make any
substantially similar comparison), defendant offers no reason why the trial court‘s
sustaining of the objection did not cure any error, or why an admonition would not
have cured any lingering confusion.
Seventh, the prosecutor stated: ―Dr. Klein was paid $1500 per day, and he
talked about the hypothetical police officer. [¶] Now, I am not here to try
hypothetical police officers. I‘m here to try [defendant] . . . . So it is very difficult
to ask direct questions about hypothetical people who don‘t exist. But that is the
way the defense chose to present evidence of hypothetical police officers. So that
I couldn‘t confront him about [defendant], so I could only confront him about
hypothetical police officers.‖ The prosecutor added, ―That is what they give you
as mitigating evidence. Hypothetical police officers.‖ He then complained that
Dr. Klein had based his opinions upon reports and had never spoken with
defendant. Defendant objected that the prosecutor misstated the evidence, and
during a sidebar conference added that ―the tenor of the argument now is an attack
on the defense, that we‘re somehow being duplicitous, doing what we did in the
way we did it. [¶] And he should be admonished and that shouldn‘t be allowed to
continue.‖ The court responded, ―I am concerned that it could be construed as bad
faith on the part of counsel. So I think you have to be careful about that. And so
let‘s go.‖ When the prosecutor resumed his argument, he stated that he may have
81
been incorrect in remarking that Dr. Klein had reviewed reports, and that defense
counsel was correct.
Reciting these facts, defendant asserts that the prosecutor denigrated this
witness. But defendant did not object on this basis, nor did he request that the jury
be instructed; rather, he asked the court to admonish the prosecutor, which the
court did. Therefore, defendant has forfeited this claim. In addition, he does not
explain how the prosecutor‘s statements constituted denigration of the witness.
Absent such an explanation, we need not consider this claim on appeal. (See
Catlin, supra, 26 Cal.4th at p. 133; Barnett, supra, 17 Cal.4th at p. 1182.) Finally,
this claim fails on the merits. ―Prosecutors are allowed ‗wide latitude in penalty
phase argument, so long as the beliefs they express are based on the evidence
presented.‘ [Citations.] Although prosecutorial arguments may not denigrate
opposing counsel’s integrity, ‗harsh and colorful attacks on the credibility of
opposing witnesses are permissible. [Citations.]‘ [Citations.]‖ (People v. Parson
(2008) 44 Cal.4th 332, 360.) Here, although the prosecutor misstated the basis of
the expert‘s opinion, he corrected himself, and we find no impropriety in the
remainder of the prosecutor‘s comments.
Eighth, the prosecutor stated that Dr. Klein ―was the first witness that we
heard about the anniversary-reaction defense.‖28 Defendant objected ―to the last
word counsel used. We have not heard any testimony as to an anniversary-
reaction defense.‖ The court sustained the objection, and the prosecutor then
stated, ―whatever he called it, this anniversary-reaction syndrome, anniversary-
28
On cross-examination, Dr. Klein agreed that being diagnosed with a life-
threatening illness is a ―very serious, stressful incident.‖ The prosecutor then
asked Klein, ―Does that mean that person [who was diagnosed with a life-
threatening illness] is going to go out at an anniversary of that date and . . . commit
robberies?‖ Klein answered, ―Not necessarily, no, sir.‖
82
reaction — whatever word you want to use.‖ Defendant sets forth no argument as
to how these statements constituted prosecutorial misconduct. Therefore, we need
not consider his contention. (See Catlin, supra, 26 Cal.4th at p. 133; Barnett,
supra, 17 Cal.4th at p. 1182.) In addition, defendant did not request that the jury
be admonished. Therefore, he has forfeited this claim. Finally, the prosecutor‘s
characterization of testimony concerning how an individual might behave on the
anniversary of a stressful event as a ―defense‖ does not constitute misconduct.
Ninth, the prosecutor stated that Dr. Mantell was ―paid $2500 a day. He
was here for two hours. That‘s about $1200 an hour.‖ Defendant objected,
―there‘s no testimony that‘s what he‘s paid per hour.‖ The court sustained the
objection. The prosecutor then stated, ―$2500 per day, $250 per hour to review
documents outside of court. You do the math. [¶] $2500 a day. I saw him here
two hours that day, you do the math.‖ Defendant claims these comments
denigrated the witness. He did not object on this basis to the first comments, and
did not object at all to the second comments. Therefore, he has forfeited this
claim. In addition, defendant does not explain how these comments denigrated the
witness. Finally, it is not inappropriate for the prosecutor to comment upon an
expert witness‘s fee. (See People v. Arias (1996) 13 Cal.4th 92, 162.)
Tenth, the prosecutor stated, ―[l]ife without parole — as you heard, in
prison, he gets to write letters, gets to watch TV.‖ Defendant objected, ―there‘s
been no testimony to that,‖ and the court sustained the objection. Defendant offers
no basis for concluding that the court‘s sustaining of the objection to the
prosecutor‘s comment did not cure any error. In addition, because defendant did
not request that the jury be admonished, he has forfeited his challenge.
Eleventh, the prosecutor stated, ―[h]is choices put him here to where the
community is now going to judge him and his actions. [¶] Our society must not
be willing to overlook these types of aggravated —‖ Defendant objected ―to the
83
language.‖ The court sustained the objection, stating: ―I think one of the
instructions you‘re going to get is you cannot consider public feeling or public
opinion in making your judgment. And I am concerned that that last comment
might be construed that way.‖ In addition, the jurors subsequently were instructed
that they must not be ―swayed by public opinion or public feeling.‖ Thus, any
impropriety in the prosecutor‘s conduct was cured by the trial court‘s admonition
and instructions. (See People v. Carasi (2008) 44 Cal.4th 1263, 1315 [any
impropriety in the prosecutor‘s reference to the electorate ―was cured by the
court‘s admonition to disregard the comment and to follow the sentencing
instructions‖].)
Finally, the prosecutor referred to Officer Jansing as ―the little park officer
ranger who was there and didn‘t like the way the sticker was put on the car.‖
Defendant asserts this statement appealed to the passions of the jury and vouched
for the witness. Defendant did not object to this statement, and therefore he has
forfeited his challenge. In addition, he provides no explanation of his contention,
and we perceive no misconduct in the prosecutor‘s statement.
c. Futility of objections
As noted above, ―[a] defendant will be excused from the necessity of either
a timely objection and/or a request for admonition if either would be futile.
[Citations.]‖ (Hill, supra, 17 Cal.4th at p. 820.)
As reflected in our review of defendant‘s contentions, the trial court
sustained most of the objections interposed by the defense to the challenged
questions and statements, and overruled only three of these objections. In
addition, the court admonished the jury on several occasions, in only one instance
rejecting a request for an admonition. Thus, we find no support for the assertion
84
that it would have been futile to interpose objections to the remaining instances of
alleged prosecutorial misconduct or to request that the jury be admonished.
3. Rejection of various instructions requested by defendant
Defendant assigns as error the trial court‘s rejection of three jury instructions
proposed by the defense. First, he contends the jury should have been instructed
that the special circumstances of burglary-murder and robbery-murder should not
be ―double-counted‖ as factors in aggravation, because they arose from a single
incident. As he acknowledges, we rejected this contention in People v. Pollock
(2004) 32 Cal.4th 1153, 1195-1196. As in Pollock, the jury in the present case was
instructed that ―[t]he weighing of aggravating and mitigating circumstances does
not mean a mere mechanical counting of factors on each side of an imaginary scale,
or the arbitrary assignment of weights to any of them.‖ He presents no reason to
depart from our conclusion that ―[t]here is no reasonable likelihood that a jury so
instructed would be unduly influenced by the mere number of special
circumstances, without regard to the character or quality of the conduct on which
they were based. Accordingly, defendant‘s claim is lacking in merit.‖ (Id. at
p. 1196.)
Second, defendant contends the jury should have been instructed that ―[a]
single mitigating factor is sufficient to support a decision that death is not the
appropriate punishment.‖ Instead, the court instructed that ―[a]ny of the
mitigating factors, standing alone, may support a decision that death is not the
appropriate punishment in this case. [¶] A single mitigating factor, which you
determine to be of sufficient weight, in relation to the aggravating factors, can
support a decision that death is not the appropriate punishment.‖ He asserts that
the court‘s instruction ―precluded the jury from being able to give whatever effect
it wanted to the mitigating factor,‖ and that ―it is likely that one or more jurors did
85
not realize that a single mitigating factor could outweigh all the aggravating
evidence.‖
We rejected a substantially similar contention in People v. Lenart (2004) 32
Cal.4th 1107, noting that ―[t]he [proposed] instruction is argumentative because it
states that any mitigating evidence may support a sentence of life without
possibility of parole, but it does not state that any aggravating evidence may
support a death sentence.‖ (Id. at p. 1134.) In addition, as in Lenhart, ―because
the jury was instructed with CALJIC No. 8.88 that it was not merely to balance the
number of aggravating circumstances against the number of mitigating
circumstances, and advised that it was to choose what weight to assign to any
factor, it received an evenhanded framed instruction that addressed defendant‘s
concern.‖ (Id. at 1134-1135.)
Third, defendant contends the trial court erred in declining to instruct that
―[a]n unintentional or accidental killing, even though criminal, may be considered
to be a mitigating factor in the penalty phase of the case. An intentional killing
may be considered to be an aggravating factor in the penalty phase of the case.‖
In support of this claim, he cites Tennard v. Dretke (2004) 542 U.S. 274, in which
the jury was instructed to resolve two issues in deciding the appropriate
punishment — whether the defendant‘s criminal conduct was deliberate, and
whether there was a probability that the defendant would present a continuing
threat to society. In light of the narrow issues presented in that case, the
prosecutor argued that the defendant‘s low IQ was not relevant to the jury‘s
penalty deliberations. The high court rejected the lower courts‘ narrow view of
the relevant issues and evidence, reiterating that ― ‗ ―[r]elevant mitigating evidence
is evidence which tends logically to prove or disprove some fact or circumstance
which a fact-finder could reasonably deem to have mitigating value.‖ ‘ [Citation.]
Thus, a State cannot bar ‗the consideration of . . . evidence if the sentencer could
86
reasonably find that it warrants a sentence less than death.‘ [Citation.])‖ (Tennard
v. Dretke, supra, 542 U.S. at pp. 284-285.) Based upon this authority, defendant
asserts ―a jury could well have considered that the fact the killing was accidental
had some mitigating value, but it was precluded from considering this evidence
because of the trial court‘s refusal to instruct.‖
The trial court‘s instructions did not preclude the jury from considering
evidence relating to the circumstances of the homicide. The court‘s instructions
stated that ―[i]n the guilt phase of the trial, you were instructed that, in the context
of the felony murder rule, if a killing occurred in the course of a statutory felony, it
did not matter whether the killing was intentional, unintentional or accidental, it
still constituted first degree murder. [¶] For the penalty phase under Factor ‗A‘
how the killing occurred may be considered for the purpose of determining
whether the circumstances of the crime constitutes an aggravating or mitigating
factor. [¶] Your assessment as to the nature of the act that resulted in the killing
of [Timothy McVeigh] may be considered, along with all the other circumstances
attending your determination of first degree murder and the finding the special
circumstances are true.‖ (Italics added.) Thus, the instructions expressly informed
the jury that although it could not consider at the guilt phase whether the killing
was intentional or accidental, it could consider at the penalty phase ―how the
killing occurred‖ and ―the circumstances of the crime‖ in weighing the appropriate
penalty. This instruction clearly encompassed the substance of defendant‘s
proposed instruction. In addition, the trial court‘s instruction properly conveyed
that the circumstances of the homicide could be considered as aggravating or
mitigating. In contrast, defendant‘s proposed instruction was argumentative in
stating only that the circumstances could be considered as mitigating evidence,
without noting that they also could be considered as aggravating evidence.
87
4. Cumulative error
Defendant contends the claimed errors, considered together, ―resulted in
convictions which are constitutionally unreliable in violation of the Fifth, Sixth,
Eighth and Fourteenth Amendments of the federal constitution.‖ We have found
no error at the penalty phase, and thus there is no error to consider cumulatively.
D. General Challenges to California’s Death Penalty Scheme
Defendant raises a number of challenges to the constitutionality of
California‘s death penalty scheme, based upon the Fifth, Sixth, Eighth, and
Fourteenth Amendments of the United States Constitution. As defendant
acknowledges, we have considered and rejected these contentions in prior cases.
Defendant presents no persuasive reason in the present case to reconsider the
conclusions we previously reached.
California‘s death penalty statute adequately narrows the class of murderers
eligible for the death penalty. (Dykes, supra, 46 Cal.4th at pp. 813, 820; People v.
Gurule (2002) 28 Cal.4th 557, 663 [a special circumstance based upon felony
murder adequately narrows the class of persons eligible for the death penalty];
People v. Ochoa (2001) 26 Cal.4th 398, 458-459 [the special circumstance of
murder in the commission of an attempted robbery adequately narrows the class of
persons eligible for the death penalty].) ―In particular, the felony-murder special
circumstance is not overbroad despite the number of different possible predicate
felonies and the lack of a requirement that the killer have had the intent to kill.‖
(People v. Kraft (2000) 23 Cal.4th 978, 1078.)
The trial court need not distinguish between aggravating and mitigating
factors. (People v. Prieto (2003) 30 Cal.4th 226, 271-272.) In addition, the
penalty phase jury is not required to make unanimous findings concerning the
particular aggravating circumstances, to find all aggravating factors beyond a
reasonable doubt, or to find beyond a reasonable doubt that the aggravating factors
88
outweigh the mitigating factors. (Dykes, supra, 46 Cal.4th at p. 813.) ―Because
‗ ―[u]nlike the guilt determination, ‗the sentencing function is inherently moral and
normative, not factual‘ [citation] and, hence, not susceptible to a burden-of-proof
quantification‖ ‘ [citation], it is sufficient that the jury was instructed that ‗ ―[t]o
return a judgment of death, each of you must be persuaded that the aggravating
circumstances are so substantial in comparison with the mitigating circumstances
that it warrants death instead of life without possibility of parole.‖ ‘ [Citation.]
Moreover, ‗[t]he United States Supreme Court decisions rendered in Ring v.
Arizona [(2002)] 536 U.S. 584 and Apprendi v. New Jersey [(2000)] 530 U.S. 466
do not compel a different conclusion.‘ [Citations.]‖ (Dykes, supra, 46 Cal.4th at
p. 814.)
― ‗It is settled . . . that California‘s death penalty law is not unconstitutional
in failing to impose a burden of proof — whether beyond a reasonable doubt or by
a preponderance of the evidence — as to the existence of aggravating
circumstances, the comparative weight of aggravating and mitigating
circumstances, or the appropriateness of a sentence of death. [Citations.]‘
[Citation.] We also have rejected the contention that the jury must be instructed
that no party bears the burden of proof on the matter of punishment. [Citation.]‖
(People v. Lewis (2009) 46 Cal.4th 1255, 1319 (Lewis).) In addition, the jury need
not make written findings. (Dykes, supra, 46 Cal.4th at p. 813; People v. Valencia
(2008) 43 Cal.4th 268, 311.)
― ‗This court‘s refusal to conduct intercase proportionality review of a death
sentence does not violate the federal Constitution. [Citation.]‘ [Citation.]‖
(Lewis, supra, 46 Cal.4th at p. 1320; see also Dykes, supra, 46 Cal.4th at p. 819.)
―Section 190.3, factor (a), which allows the jury to consider ‗[t]he
circumstances of the crime of which the defendant was convicted in the present
proceeding and the existence of any special circumstances found to be true
89
pursuant to Section 190.1,‘ does not violate the Fifth, Sixth, Eighth, or Fourteenth
Amendment to the United States Constitution by allowing arbitrary imposition of
the death penalty. (Tuilaepa v. California (1994) 512 U.S. 967, 975-976; People
v. Stevens [(2007)] 41 Cal.4th [182,] 211.)‖ (People v. Loker (2008) 44 Cal.4th
691, 755.) ―As the United States Supreme Court noted in upholding factor (a)
against an Eighth Amendment challenge, ‗our capital jurisprudence has
established that the sentencer should consider the circumstances of the crime in
deciding whether to impose the death penalty. [Citation.]‘ [Citation.]‖ (People v.
Page (2008) 44 Cal.4th 1, 60.) Nor does the use of the term ―extreme‖ in section
190.3, factor (d) ― ‗act as a barrier to the consideration of mitigating evidence in
violation of the federal Constitution.‘ [Citation.]‖ (People v. Martinez (2009) 47
Cal.4th 399, 455 (Martinez).)
California‘s death penalty law ―is not constitutionally defective because the
prosecutor retains discretion whether or not to seek the death penalty.
[Citations.]‖ (People v. Dickey (2005) 35 Cal.4th 884, 932.) ―Furthermore,
because ‗capital defendants are not similarly situated to noncapital defendants, the
death penalty law does not violate equal protection by denying capital defendants
certain procedural rights given to noncapital defendants. [Citations.]‘ [Citation.]‖
(People v. Carrington (2009) 47 Cal.4th 145, 199.) Nor does California‘s death
penalty scheme violate international law. (Martinez, supra, 47 Cal.4th at p. 456.)
Defendant, incorporating Justice Blackmun‘s opinion dissenting from the
denial of certiorari in Callins v. Collins (1994) 510 U.S. 1141, 1143, and his
concurring opinion in Sawyer v. Whitley (1992) 505 U.S. 333, 357-360, contends
that the increasing barriers to granting habeas corpus relief ―operate to render the
system of review of capital convictions and sentences more arbitrary and less
reliable than was contemplated when capital punishment resumed in 1976
[citation], and more arbitrary and less reliable than is required for there to be
90
meaningful post-conviction review.‖ We have observed, however: ―Defendant‘s
generalized complaints about the difficulty of obtaining relief on habeas corpus
are premature in this direct appellate proceeding and, to the extent they concern
the federal courts, are directed to the wrong tribunal as well.‖ (People v.
Demetrulias (2006) 39 Cal.4th 1, 44 (Demetrulias).)
Citing Judge Noonan‘s dissenting opinion in Jeffers v. Lewis (9th Cir.
1994) 38 F.3d 411, 425-427, defendant contends: ―The circumstances of
California‘s administration of the death penalty, especially as they exist at this
time, are strikingly similar to those in Arizona [where only one of 103 persons
who were sentenced to death during a 15-year period was executed during that
period], and the ultimate selection of who lives and who dies is arbitrary, for those
reasons.‖ ―In People v. Snow [(2003) 30 Cal.4th 43], we rejected a similar
contention, based on the same dissenting opinion, that California‘s pace of
execution, slow in comparison to the number of death judgments, makes our
system arbitrary. We explained: ‗The federal appellate court has rejected this
argument (Woratzeck v. Stewart (9th Cir. 1997) 118 F.3d 648, 652); we do so as
well. ―If Woratzeck‘s death sentence does not violate the Eighth Amendment,
then neither does the scheduling of his execution. Arizona must establish some
order of execution. There has been no prima facie showing that this scheduling
violates the Eighth Amendment.‖ (Ibid.) The same is true here. Defendant does
not face imminent execution and can hardly claim he is being singled out for either
quick or slow treatment of his appeal and habeas corpus proceedings. More
generally, defendant makes no showing that the number of condemned prisoners
executed in California, or the order in which their execution dates are set, is
determined by any invidious means or method, with discriminatory motive or
effect, or indeed according to anything other than the pace at which various
defendants‘ appeals and habeas corpus proceedings are concluded, a matter by no
91
means within the sole control of the state.‘ (People v. Snow, supra, 30 Cal.4th at
p. 127.)‖ (Demetrulias, supra, 39 Cal.4th at pp. 44-45.)
III. CONCLUSION
For the foregoing reasons, the judgment is affirmed in its entirety.
GEORGE, C. J.
WE CONCUR:
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.
92
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Redd
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S059531
Date Filed: April 29, 2010
__________________________________________________________________________________
Court: Superior
County: Orange
Judge: Francisco P. Briseno
__________________________________________________________________________________
Attorneys for Appellant:
Grace Lidia Suarez, under appointment by the Supreme court, for Defendant and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney
General, Gary W. Schons, Assistant Attorney General, Holly D. Wilkens and Jennifer A. Jadovitz, Deputy
Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Grace Lidia Suarez
508 Liberty Street
San Francisco, CA 94114
(888) 825-8748
Jennifer A. Jadovitz
Deputy Attorney General
110 West A Street, Suite 100
San Diego, CA 92101
(619) 645-2204
Automatic appeal from a judgment of death.
Opinion Information
| Date: | Docket Number: | Category: | Status: |
| Thu, 04/29/2010 | S059531 | Automatic Appeal | opinion issued |
Parties
| 1 | The People (Respondent) Represented by Attorney General - San Diego Office Jennifer A. Jadovitz, Deputy Attorney General P.O. Box 85266 San Diego, CA |
| 2 | Redd, Stephen Moreland (Appellant) San Quentin State Prison Represented by Grace Lidia Suarez Attorney at Law 508 Liberty Street San Francisco, CA |
| Disposition | |
| Apr 29 2010 | Opinion: Affirmed |
| Dockets | |
| Feb 28 1997 | Judgment of death |
| Mar 7 1997 | Filed certified copy of Judgment of Death Rendered 2-28-97. |
| Jun 21 2001 | Filed: applt's application for appointment of counsel. (IFP form) |
| Jun 22 2001 | Counsel appointment order filed appointing Grace L. Suarez to represent applt for the direct appeal. |
| Jul 2 2001 | Received: notice from superior court that record was mailed to applt's counsel on 6-27-2001. |
| Aug 22 2001 | Counsel's status report received (confidential) from atty Suarez. |
| Oct 2 2001 | Application for Extension of Time filed By applt. to request corr. of the record. (1st request) |
| Oct 10 2001 | Extension of Time application Granted To 11/30/2001 to applt. to request corr. of the record. |
| Oct 24 2001 | Counsel's status report received (confidential) from atty Suarez. |
| Nov 20 2001 | Compensation awarded counsel Atty Suarez |
| Nov 28 2001 | Request for extension of time filed by applt. to request corr. of the record. (2nd request) |
| Nov 30 2001 | Extension of time granted To 1/29/2002 to applt.to request corr. of the record. Only one further extension totaling 60 additional days will be granted. |
| Dec 28 2001 | Counsel's status report received (confidential) from atty Suarez. |
| Jan 8 2002 | Compensation awarded counsel Atty Suarez |
| Feb 1 2002 | Extension of time granted To 4/2/2002 to applt. to request correction of the record. Counsel anticipates filing the request by 4/2/2002. No further extension is contemplated. |
| Feb 21 2002 | Counsel's status report received (confidential) from atty Suarez. |
| Feb 28 2002 | Compensation awarded counsel Atty Suarez |
| Mar 11 2002 | Received copy of appellant's record correction motion Applt's request for correction of record, augmentation of record, viewing and distribution of sealed record, and preparation of settled statement. (15 pp.) |
| Apr 26 2002 | Counsel's status report received (confidential) from atty Suarez. |
| Jun 12 2002 | Compensation awarded counsel Atty Suarez |
| Jun 13 2002 | Change of Address filed for: Applt. counsel Grace Lidia Suarez. |
| Jul 1 2002 | Counsel's status report received (confidential) from atty Suarez. |
| Oct 3 2002 | Counsel's status report received (confidential) from atty Suarez. |
| Nov 13 2002 | Compensation awarded counsel Atty Suarez |
| Dec 2 2002 | Counsel's status report received (confidential) from atty Suarez. |
| Jan 31 2003 | Counsel's status report received (confidential) from atty Suarez. |
| Mar 19 2003 | Compensation awarded counsel Atty Suarez |
| Apr 9 2003 | Counsel's status report received (confidential) from atty Suarez. |
| Jun 9 2003 | Counsel's status report received (confidential) from atty Suarez. |
| Jul 7 2003 | Counsel's status report received (confidential) (supplemental) from atty Suarez. |
| Jul 8 2003 | Note: record returned, unfiled, to superior court; no alphabetical index in R.T. and no juror key. |
| Aug 27 2003 | Compensation awarded counsel Atty Suarez |
| Aug 28 2003 | Received letter from: Judge Francisco Briseno, dated 8-19-2003, requesting relief from compliance with Code of Civil Procedure section 237 and California Rules of Court, rule 33.6 with respect to the record on appeal. |
| Aug 28 2003 | Letter sent to: Judge Briseno, advising that the superior court must comply with Code of Civil Procedure section 237 and the California Rules of Court, rule 33.6. |
| Sep 9 2003 | Counsel's status report received (confidential) from atty Suarez. |
| Sep 24 2003 | Compensation awarded counsel Atty Suarez |
| Nov 4 2003 | Counsel's status report received (confidential) from atty Suarez. |
| Dec 17 2003 | Record on appeal filed Clerk's transcripts 19 volumes (5,932 pages) and Reporter's transcripts 18 volumes (3,562 pages) including material under seal. Clerk's transcripts includes 2,761 pages of juror questionnaires. |
| Dec 17 2003 | Appellant's opening brief letter sent, due: January 26, 2004 |
| Jan 7 2004 | Counsel's status report received (confidential) from atty Suarez. |
| Jan 14 2004 | Compensation awarded counsel Atty Suarez |
| Jan 22 2004 | Compensation awarded counsel Atty Suarez |
| Feb 2 2004 | Request for extension of time filed to file AOB. (1st request) |
| Feb 20 2004 | Extension of time granted to 3/26/2004 to file appellant's opening brief. The court anticipates that after that date, only five further extensions totaling 300 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it. |
| Mar 3 2004 | Counsel's status report received (confidential) from atty Suarez. |
| Mar 23 2004 | Request for extension of time filed to file appellant's opening brief. (2nd request) |
| Mar 30 2004 | Extension of time granted to 5-25-2004 to file AOB. The court anticipates that after that date, only four further extensions totaling 240 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it. |
| Apr 14 2004 | Compensation awarded counsel Atty Suarez |
| Apr 21 2004 | Compensation awarded counsel Atty Suarez |
| May 6 2004 | Counsel's status report received (confidential) from atty Suarez. |
| May 7 2004 | Request for judicial notice filed (AA) Appellant's request. |
| May 13 2004 | Request for extension of time filed to file appellant's opening brief. (3rd request) |
| May 18 2004 | Extension of time granted to 7/26/2004 to file appellant's opening brief. The court anticipates that after that date, only three further extensions totaling about 180 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it. |
| Jul 6 2004 | Counsel's status report received (confidential) from atty Suarez. |
| Jul 30 2004 | Request for extension of time filed to file AOB. (4th request) |
| Aug 6 2004 | Filed: Supplemental declaration in support of application for extension of time to file opening brief. |
| Aug 10 2004 | Extension of time granted to 9/24/2004 to file appellant's opening brief. After that date, only two further extensions totaling about 120 additional days will be granted. Extension is granted based upon counsel Grace Lidia Suarez's representation that she anticipates filing that brief by 1/20/2005. |
| Aug 11 2004 | Request for judicial notice filed (AA) Appellant's request |
| Aug 11 2004 | Compensation awarded counsel Atty Suarez |
| Sep 8 2004 | Counsel's status report received (confidential) from atty Suarez. |
| Sep 23 2004 | Request for extension of time filed to file AOB. (5th request) |
| Sep 28 2004 | Extension of time granted to 11/23/04 to file appellant's opening brief. After that date, only one further extensions totaling 60 additional days will be granted. Extension is granted based upon Counsel Grace Suarez's representation that she anticipates filing that brief by 01/20/05. |
| Oct 27 2004 | Compensation awarded counsel Atty Suarez |
| Nov 3 2004 | Compensation awarded counsel Atty Suarez |
| Nov 8 2004 | Counsel's status report received (confidential) from atty Suarez. |
| Nov 23 2004 | Request for extension of time filed to file appellant's opening brief. (6th request) |
| Dec 1 2004 | Extension of time granted to January 20, 2005 to file appellant's opening brief. After that date, no further extensions will be granted. Extension is granted based upon counsel Grace Lidia Suarez's representation that she anticipates filing that brief by January 20, 2005. |
| Dec 10 2004 | Request for judicial notice filed (AA) appellant's request. |
| Jan 12 2005 | Appellant's opening brief filed (60,554 words; 283 pp.) |
| Feb 9 2005 | Request for extension of time filed to file respondent's brief. (1st request) |
| Feb 16 2005 | Compensation awarded counsel Atty Suarez |
| Feb 16 2005 | Extension of time granted to 4/15/2005 to file respondent's brief. |
| Apr 5 2005 | Request for extension of time filed to file respondent's brief. (2nd request) |
| Apr 13 2005 | Extension of time granted to 6/14/2005 to file respondent's brief. After that date, only five further extensions totaling about 285 additional days will be granted. Extension is granted based upon Deputy Attorney General Maxine P. Cutler's representation that she anticipates filing that brief by 4/30/2006. |
| Jun 3 2005 | Request for extension of time filed to file respondent's brief. (3rd request) |
| Jun 13 2005 | Extension of time granted to 8-15-2005 to file respondent's brief. After that date, only four further extensions totaling about 225 additional days will be granted. Extension granted based upon Deputy AG Maxine P. Cutler's representation that she anticipates filing the brief by 4-30-2006. |
| Aug 1 2005 | Request for extension of time filed to file respondent's brief. (4th request) |
| Aug 8 2005 | Extension of time granted to 10/13/2005 to file respondent's brief. After that date, only four further extensions totaling about 200 additional days will be granted. Extension is granted based upon Deputy Attorney General Douglas C. S. Lee's representation that he anticipates filing that brief by 4/30/2006. |
| Oct 3 2005 | Request for extension of time filed to file respondent's brief. (5th request) |
| Oct 11 2005 | Extension of time granted to 12/13/2005 to file respondent's brief. After that date, only three further extensions totaling about 140 additional days will be granted. Extension is granted based upon Deputy Attorney General Douglas C. S. Lee's representation that he anticipates filing that brief by 4/30/2006. |
| Dec 5 2005 | Request for extension of time filed to file respondent's brief. (6th request) |
| Dec 9 2005 | Extension of time granted to 2/14/2006 to file respondent's brief. After that date, only two further extensions totaling about 80 additional days will be granted. Extension is granted based upon Deputy Attorney General Jennifer A. Jadovitz's representation that she anticipates filing that brief by 4/30/2006. |
| Feb 9 2006 | Request for extension of time filed to file respondent's brief. (7th request) |
| Feb 10 2006 | Extension of time granted to April 17, 2006 to file the respondent's brief. After that date, only one further extension totaling about 15 additional days will be granted. Extenison is granted based upon Deputy Attorney General Jennifer A. Jadovitz's representation that she anticipates filing that brief by April 30, 2006. |
| Mar 1 2006 | Filed: respondent's correspondence requesting Marsden transcript filed under seal on December 17, 2003. |
| Apr 4 2006 | Request for extension of time filed to file respondent's brief. (8th request) |
| Apr 12 2006 | Motion for access to sealed record granted Good cause appearing therefor (see Cal. Rules of Court, rule 31.2(a)(4)), respondent's "Request for Transcript of the October 23, 1996 Marsden Hearing," filed March 1, 2006, is granted. The clerk is directed to photocopy pages 1257-1281 of the sealed reporter's transcript and transmit them to respondent. On the Court's own motion, the clerk is directed to unseal pages 1257-1281 of the sealed reporter's transcript. Werdegar, J., was absent and did not participate. |
| Apr 13 2006 | Extension of time granted to May 15, 2006 to file the respondent's brief. After that date, no further extension is contemplated. Extension is granted based upon Deputy Attorney General Jennifer A. Jadovitz's representation that she anticipates filing that brief by May 15, 2006. |
| Apr 28 2006 | Respondent's brief filed (29,447 words; 92 pp.) |
| Jun 13 2006 | Application for relief from default filed for failure to file appellant's reply brief. |
| Jun 15 2006 | Extension of time granted Appellant's application for relief from default for failure to file appellant's reply brief or a timely motion for extension of time is granted. It is ordered that the time to serve and file appellant's reply brief is extended to and including July 17, 2006. |
| Jun 15 2006 | Request for extension of time filed to file appellant's reply brief. (1st request) |
| Jul 7 2006 | Request for extension of time filed to file appellant's reply brief. (2nd request) |
| Jul 13 2006 | Extension of time granted to September 8, 2006 to file appellant's reply brief. |
| Sep 5 2006 | Request for extension of time filed to file appellant's reply brief. (3rd request) |
| Sep 11 2006 | Extension of time granted to November 7, 2006 to file appellant's reply brief. |
| Nov 6 2006 | Request for extension of time filed to file appellant's reply brief. (4th request) |
| Nov 9 2006 | Extension of time granted to January 8, 2007 to file the appellant's reply brief. |
| Jan 5 2007 | Note: received request for extension of time to file reply brief; returned to counsel because declaration in support is not in compliance with requirements of CCP, section 2015.5. |
| Jan 10 2007 | Request for extension of time filed to file appellant's reply brief. (5th request) |
| Jan 16 2007 | Extension of time granted to March 9, 2007 to file the appellant's reply brief. After that date, no further extension is contemplated. Extension is granted based upon counsel Grace Lidia Suarez's representation that she anticipates filing that brief by March 9, 2007. |
| Feb 16 2007 | Appellant's reply brief filed by atty Grace Lidia Suarez. (14,560 words; 62 pp.) |
| Mar 8 2007 | Compensation awarded counsel Atty Suarez |
| Aug 12 2009 | Exhibit(s) lodged Court's exhibits - A, B, C; People's Pre-trial exhibits - 1, 2, 3, 4, 5; Defense Pre-trial exhibits - B, C, D, E; People's Trial exhibits - 8, 9, 10, 13, 14, 99, 100, 101, 103, 104, 105. |
| Jan 5 2010 | Oral argument letter sent advising counsel that the court could schedule this case for argument as early as the March calendar, to be held the week of March 1, 2010, in San Francisco. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument. |
| Jan 8 2010 | Received: letter from Deputy Attorney General Jennifer A. Jadovitz, dated January 5, 2010, advising that she has a vacation scheduled for June 2 through 20, 2010. |
| Feb 3 2010 | Case ordered on calendar to be argued Tuesday, March 2, 2010, at 1:30 p.m., in San Francisco |
| Feb 8 2010 | Filed: respondent's focus issues letter, dated February 4, 2010. |
| Feb 9 2010 | Received: appearance sheet from Grace L. Suarez, Attorney at Law, indicating 45 minutes for oral argument for appellant. |
| Feb 16 2010 | Received: appearance sheet from Deputy Attorney General Jennifer Jadovitz, indicating 30 minutes for oral argument for respondent. |
| Feb 19 2010 | Request for judicial notice granted Appellant's requests for judicial notice, filed on May 7, 2004, August 11, 2004, and December 10, 2004, are granted. |
| Feb 18 2010 | Filed: appellant's focus issues letter, dated February 11, 2010. |
| Mar 2 2010 | Cause argued and submitted |
| Mar 18 2010 | Compensation awarded counsel Atty Suarez |
| Apr 28 2010 | Notice of forthcoming opinion posted To be filed Thursday, April 29, 2010 @ 10 a.m. |
| Apr 29 2010 | Opinion filed: Judgment affirmed in full opinion by George, C.J. -----joined by Kennard, Baxter, Werdegar, Chin, Moreno and Corrigan, JJ. |
| Briefs | |
| Jan 12 2005 | Appellant's opening brief filed |
| Apr 28 2006 | Respondent's brief filed |
| Feb 16 2007 | Appellant's reply brief filed |
| Brief Downloads | |
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