IN THE SUPREME COURT OF CALIFORNIA
Plaintiff and Respondent,
DAVID KEITH ROGERS,
Defendant and Appellant. )
A jury convicted defendant David Keith Rogers of the first degree murder
of Tracie Clark and the second degree murder of Janine Benintende (Pen. Code,
§§ 187, 189),1 and found true the special circumstance allegation of multiple
murder (§ 190.2, subd. (a)(3)) and the allegation that defendant personally used a
handgun in the commission of each murder (§ 12022.5). At the penalty phase of
the trial, the jury returned a verdict of death for the Clark murder. The trial court
denied defendant’s automatic motion to modify the verdict (§ 190.4, subd. (e)) and
imposed the death sentence for the Clark murder and 15 years to life in prison for
the Benintende murder.
This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment in
All further statutory references are to the Penal Code unless otherwise
I. FACTUAL BACKGROUND
Defendant, a Kern County Sheriff’s deputy, murdered 20-year-old Janine
Benintende in January 1986 and 15-year-old Tracie Clark on February 8, 1987.
Both of the women had been working as prostitutes on Union Avenue in
Bakersfield when they were killed. Both bodies were found in the Arvin-Edison
Canal. Both had been shot multiple times with bullets from a .38-caliber weapon.
Bullets recovered from the women’s bodies, tire tracks and shoe prints at the scene
of the Clark murder, and an eyewitness account connected defendant to the
murders. Upon his arrest, and after waiving his rights to an attorney and to
silence, defendant confessed to the Clark murder, but not the Benintende murder.
At trial, the defense claimed defendant suffered from a mental illness resulting
from extensive physical and sexual abuse as a child and, as a result, did not form
the mental state or states required for the charged crimes.
At the penalty phase, the prosecution presented evidence of two additional
incidents involving defendant and prostitutes. The defense presented further
evidence of defendant’s background and mental state.
a. The killing of Janine Benintende
In January 1986, 20-year-old Janine Benintende resided in Los Angeles.
Benintende had been using heroin and working as a prostitute. That month,
Benintende began associating with Frank Bybee. Around January 22, 1986,
Benintende appeared nervous and told her mother she needed to leave Los
Angeles for a few days. She left with Bybee and went to Bakersfield.
About 7:30 or 8:00 p.m. on the day of their arrival in Bakersfield,
Benintende went to Union Avenue intending to work as a prostitute. She was
wearing pants, boots, and a white rabbit fur jacket. Bybee never saw Benintende
On February 21, 1986, a farmer noticed a body floating in the Arvin-Edison
Canal near Rock Pile Road. Kern County Sheriff’s Homicide Detective Mike
Lage was called to the scene. He searched the area for footprints or other evidence
but found nothing significant. Three days later, Dr. John E. Holloway, a forensic
pathologist for the Kern County Coroner’s Office, examined the body, which by
that time had undergone extensive decomposition. Among the items worn by the
deceased were a white rabbit fur jacket and jeans. Dr. Holloway concluded the
person had been shot once near the sternum and twice in the back. There was only
one entry wound in the back, just below the left shoulder blade, where both bullets
apparently had entered. The gunshot wounds were the cause of death. Two
bullets were retrieved from the body. The body was identified as Benintende’s
through fingerprint analysis.
Detective Lage contacted Benintende’s relatives and friends as well as the
Los Angeles Police Department, but was unable to come up with any suspects in
b. The killing of Tracie Clark
Connie Zambrano worked as a prostitute on Union Avenue in Bakersfield.
In the early morning hours of February 8, 1987, Zambrano saw a girl, whom she
had not seen before, enter a beige Ford pickup truck with a brown camper shell
and dark bubble windows. The girl appeared to point to a motel, but the truck
instead proceeded straight before stopping for a few minutes on a side street, then
heading out of town. Zambrano recognized the truck and its driver, whom she had
seen and spoken to many times on Union Avenue. Zambrano once had a “date”
with him; he had paid her $20 for sex. At trial, Zambrano identified the driver as
On the afternoon of February 8, 1987, two farmers were shooting squirrels
when they saw a “half-naked” woman’s body submerged in a few feet of water in
the Arvin-Edison Canal a short distance from the Hermosa Road bridge.
Summoned to the scene, sheriff’s investigators saw the body facedown in the
water about 50 feet south of the bridge. Searching the scene, the investigators
found tire tracks and shoe prints in the dirt shoulder of the eastbound lane (on the
south side) of Hermosa Road, east of the canal. A Lifestyle Contour condom and
condom wrapper were on the ground in that area. There was a pool of blood in the
center of the eastbound lane of the road east of the bridge. A bloody shoe print
was in the road near the puddle. Spots of blood led from that pool across the road
to an area near a telephone pole in the dirt shoulder of the westbound lane (on the
north side) of Hermosa Road. There was a “disturbance impression” in the dirt
embankment east of the telephone pole. A trail of smeared blood led from the
pool of blood west to the center of the bridge over the canal. There were blood
spots on the bridge, on the cement curb of the canal, and on the rail of the canal.
A pathologist for the Kern County Coroner’s Office examined the body and
found a number of gunshot wounds. Two shots had entered the front of the chest
near the right breast, penetrating the lungs. One bullet had passed through the
body, while the second had lodged near the center of the back. A third shot had
grazed the right side of the chest. A fourth shot, which had been fired at fairly
close range, had entered the right side of the chest, passed through several organs,
and lodged in the left side of the body. A fifth shot had grazed the right side of the
abdomen near the waistline without entering the body cavity. A sixth shot had
entered the back near the midline and lodged near the right collarbone. There also
were abrasions on the buttocks that were consistent with the body being dragged
after death. The pathologist concluded the victim bled to death from the multiple
gunshot wounds and probably died before her body was placed in the water.
In an attempt to identify the body found in the canal, detectives showed
photographs of it to sheriff’s deputies. Sheriff’s Deputy Martin Williamson
showed a photograph to defendant, who said he did not recognize the person.
The following day, Deputy Williamson and Detective John Soliz, the lead
investigator on the case, went to Union Avenue to learn whether any of the
prostitutes there could identify the body depicted in the photos. Connie Zambrano
told Detective Soliz she recognized the victim as the girl she had seen entering the
truck the night before. Another prostitute identified the victim as Tracie Clark.
That same day, criminalists compared the three bullets recovered from
Clark’s body with the two bullets recovered from Benintende’s body the year
before. The bullets matched: all were .38-caliber semi-copper-clad hollow-point
bullets, all were of the same type as sheriff’s-department-issue ammunition that
was available to all deputies, and all had been fired from the same weapon. The
ammunition also was sold commercially.
Detective Lage and Detective William Nikkel went to defendant’s house
that day and compared the tires on his truck with photos of the tire tracks found at
the Clark murder scene. Finding the tires and tracks matched, the detectives drove
Zambrano past defendant’s house, where she identified defendant’s truck as the
truck she had seen Clark enter. She also picked defendant’s photograph out of a
photo lineup consisting of photos of six sheriff’s deputies. At that time, she did
not know defendant was a deputy sheriff.
Kern County District Attorney’s Office investigator Tam Hodgson obtained
warrants for defendant’s arrest and the search of his house. Officers arrested
defendant soon thereafter. Defendant’s shoes appeared to match photos of the
shoe prints at the scene. Once in custody, defendant agreed to be interviewed.
Investigator Hodgson and Detectives Soliz and Lage questioned defendant on
February 13 and 14, 1987. At the outset of the first interview, defendant waived
his rights under Miranda v. Arizona (1966) 384 U.S. 436, then admitted shooting
Clark and described the following events.
According to defendant, he picked up Clark near the El Don Motel at the
corner of South Union Avenue and Belle Terrace in the early morning hours.
Defendant was driving a Ford pickup truck with a brown-and-white camper shell,
which he had purchased toward the end of the previous year.2 Clark appeared to
him to be a “Mexican female,” about 20 to 30 years old and about 140 to 150
pounds.3 She asked whether he wanted a “date”; he said “I don’t know.” Clark
entered the truck, and defendant drove about one block East on Belle Terrace, then
stopped. They agreed on a price of $30 for oral sex. Defendant wanted to go out
in the “country” rather than to Clark’s motel, and she agreed.
Defendant said he drove for about 15 to 20 minutes.4 On the way, Clark
told defendant her name was Anna and that she was from Cuba or Puerto Rico.
She also began complaining about how far out of town they were going.
Toby Coffey confirmed he sold defendant a beige Ford pickup truck with a
camper shell in December 1986. Defendant took possession of the vehicle a few
According to Clark’s death certificate, she was born on June 10, 1971, and
Investigator Hodgson drove the route defendant described in 14 minutes.
The distance was 11 miles.
Defendant parked at a spot on the south side of Hermosa Road where there was
“nobody around.” He then lay down on the seat of the truck’s cab, and Clark
kneeled over him and began to perform fellatio on him. Defendant could hear
coins or keys rattling in her pockets. Clark had brought a condom, which was
lying in the truck. Defendant’s pants were around his ankles.
After awhile, according to defendant, Clark stopped and demanded to be
paid $50 instead of $30 because they had gone so far out of town and the liaison
was taking so much of her time. When defendant refused, Clark became angry
and started swinging at him. He told her to “knock this shit off.” Instead of
complying, she began yelling and kicking him. Defendant was afraid Clark might
scratch his face with her long fingernails. With his left hand, defendant (who was
right-handed) reached under the front seat and retrieved a .38-caliber revolver he
had stored there. He pulled back the hammer and pointed the gun at Clark, hoping
it would “make her quit,” but it did not. Instead, she continued to swing at him
and kick him. The gun went off, wounding Clark.
According to defendant, Clark then fell back against the truck door,
screaming. Defendant started the truck and began driving, telling her he would get
her back to town. When she continued to scream, defendant stopped the truck,
unlatched the passenger side door, and pushed her out with his feet. She ran
around in front of the headlights, “screaming and hollering.” Defendant noticed
blood on the right side of her rib cage. He put on his pants, got out of the truck,
and told her he would take her to town and get her a cab to go to the hospital. But
she started “going crazy” again and said she was going to “report” him.
Defendant “panicked” and shot her again, this time with the gun in his right hand.
Defendant said Clark then ran up the road. Defendant realized if she turned
him in, he would be arrested and go to jail. As Clark leaned against an
embankment facing him, defendant shot her four more times, “empt[ying] the
gun.” Defendant shot her because she could not testify against him if she were
dead, and “that was the bottom line.” Clark ran into the road, then fell down.
Defendant said he then drove away but came back shortly. He determined
Clark no longer was breathing, and then dragged her body by the ankles to a
nearby bridge and pushed it over the cement railing into the canal. He then drove
home, dropping the shell casings on the way. Once home, he threw the gun into a
black bag in the back of his truck, watched television, and went to bed. The
following day, he drove back to the scene. “It didn’t look good.” There was
blood in the road.
Defendant said he had purchased the murder weapon, a short-barreled .38-
caliber revolver, about six years earlier from a man at the Four Queens bar on
Edison Highway. He had fired it only once before. During the interview, one of
the investigators asked defendant about the Benintende killing. Defendant at first
repeatedly denied having shot anyone other than Clark, but later said he could not
A search of defendant’s home turned up ammunition of the same type
issued by the sheriff’s department to its deputies and used in the killings, as well
as several expended .38-caliber shell casings. Investigators thoroughly examined
defendant’s beige pick-up truck but found no bloodstains. In the camper they
found a black canvas bag with several guns in it, including a .38-caliber Colt
Detective Special. Criminalist Gregory Laskowski test fired that weapon and
compared the resulting bullets to those retrieved from the bodies of Clark and
Benintende. The bullets had matching characteristics, leading him to conclude the
bullets that killed both Clark and Benintende had been fired from that gun. After
comparing crime scene photographs with the tires on defendant’s truck and
defendant’s shoes, Laskowski concluded those tires and shoes made the tracks
depicted in the photos.
Laskowski searched defendant’s green Datsun truck for evidence of the
Benintende killing but found nothing significant. Although Benintende had been
wearing a rabbit fur jacket when she died and there was rabbit fur in the truck, that
fur could have come from a pair of gloves in the truck. Laskowski also examined
Clark’s clothing. Inside the pockets of her blue skirt he found a key, some coins, a
$20 bill, and a package of Contour Lifestyle condoms.
Investigator Hodgson determined the murder weapon had been reported
stolen several years earlier. Defendant had written the theft report. Hodgson then
tracked down the Four Queens bartender from whom defendant said he had
purchased the murder weapon. The bartender, Steven Howell, never had sold
defendant a gun. The murder weapon had belonged to Ahmed Li Ubadi, the
manager of a Stop and Shop Market. He last saw the gun before his store was
burglarized in 1982. A deputy sheriff had gone to the store to investigate the
burglary. When Mr. Ubadi arrived at the store, the only thing missing was the
Katherine Hardie, a prostitute known as “Redbone,” saw Benintende on
Union Avenue shortly before she disappeared in late January 1986. Some time
after August 1986, a man driving a white pickup truck with a camper shell picked
up Hardie on Union Avenue. She asked him whether he wanted a “date.” The
driver would not go where Hardie wanted, and instead tried to drive her “out to the
orchard.” When he would not let her out of the truck, Hardie had to jump out.
e. Motion for partial acquittal
At the close of the prosecution’s case-in-chief, the trial court granted
defendant’s motion for partial acquittal on the Benintende count and reduced that
charge to second degree murder. Thereafter the court instructed the jury it had
“reached a determination that so far as the homicide of Janine Benintende [is]
concerned that the jury could reach no greater verdict than murder in the second
degree. In other words, so far as that second count is concerned, first degree is no
longer a possibility with this jury.”
Defendant testified in his own defense and admitted killing Clark. The
defense centered around defendant’s claim he did not form the intent required for
the charged crimes due to a mental disturbance stemming from the sexual and
physical abuse he had suffered as a child. The defense evidence consisted
primarily of defendant’s testimony and that of three mental health professionals.
Dr. David Bird, a clinical psychologist, began treating defendant for
depression in February 1987 after defendant’s arrest for the Clark murder. Over
the course of a year, Dr. Bird met with defendant approximately 48 times.
According to Dr. Bird, defendant suffered from periods of amnesia regarding his
childhood. Because memory loss is typical for children who have suffered sexual
abuse, Dr. Bird believed there had been a great deal of trauma in defendant’s early
Dr. Bird described defendant’s family history, which he developed by
speaking with defendant and through input from his co-therapist, Dr. Joan Franz.
According to Dr. Bird, defendant’s parents, Juanita and James, both were
alcoholics. When defendant was approximately six months of age, his parents
divorced. Juanita then married Dub Ellis, another alcoholic. From that point
forward, defendant resided in a “house of horrors” of physical and sexual trauma.
Juanita would hit defendant and his brother Dale with a belt. Ellis was a “sexual
sadist.” For example, Ellis would force defendant and Dale to play a game called
“turn and burn” in which the boys, while naked, had to grasp each other either
back to back or face to face. Ellis then hit them with a belt with a silver buckle
whenever one boy could turn the other boy toward Ellis. This caused bruises and
welts on the boys’ buttocks, legs and testicles. Once, after discovering Juanita had
dressed defendant in women’s panties and clothing, Ellis forced defendant to stay
outside, where he was fearful of being seen. Ellis also once threatened to kill
defendant by throwing him into a river.
Dr. Bird testified that when defendant was approximately six or seven years
of age, a new stepfather, William, appeared. William, a homosexual, sodomized
defendant on a nightly basis. Defendant also was sexually abused and sodomized
by other men in the house.
Between the ages of 11 and 16 years, Dr. Bird related, defendant was
seduced by an older female cousin and by his father’s wife, Barbara, an African-
American. Defendant began collecting women’s underwear. When defendant was
17 or 18 years of age, he attempted to reconcile with his father, but Barbara
excluded him from the house when he refused to become sexually involved with
According to Dr. Bird, defendant joined the Navy at the age of 19 years and
began drinking heavily. He left the Navy two years later. Defendant had two
unsuccessful marriages before meeting and marrying his current wife, Joyce. He
had two sons by his first wife. At some point, defendant began compulsively
associating with prostitutes.
In Dr. Bird’s view, defendant had extreme sexual problems due to his
background and suffered from a possible multiple personality disorder,
fragmentation, and dissociation. On standard psychological tests, defendant
scored above average in intelligence but showed suicidal tendencies.
Dr. Joan Franz, a psychotherapist, testified she shared a practice with Dr.
Bird and began seeing defendant to treat him for his depression after his arrest for
the Clark murder. Over the course of a year, Dr. Franz saw defendant once a week
for two to three hours each visit.
Dr. Franz gained information concerning defendant’s background from
defendant, his brother Dale, other family members, and defendant’s investigator.
Based upon that information, Dr. Franz opined defendant’s family had no moral
structure. Emotional abuse, neglect, and abandonment characterized his early
family life. Dr. Franz testified that defendant suffered both overt and covert
sexual abuse; he was cross-dressed by his mother, abused by older cousins, and
sodomized by a man wearing a rubber glove with two of the fingers cut off.
In Dr. Franz’s opinion, defendant fit the profile of a survivor of child sexual
abuse and an adult victim of trauma. The trauma and abuse defendant suffered as
a child led to sexual problems as an adult, including impotence and “acting out”
sexually. Dr. Franz also stated defendant had multiple personalities. She believed
defendant began associating with prostitutes because he identified with them and
also to prove to himself he was heterosexual.
Dr. David Glaser, a psychiatrist, testified he first met defendant in
December of 1987. At that time, defendant could not remember what had
happened from the time he first shot Clark until he saw her lying in a pool of
blood. In order to get at the areas of memory loss, Dr. Glaser administered sodium
amytal, a short-acting barbiturate that “disinhibits” the brain and allows a person
to access repressed information. In interviews conducted both with and without
sodium amytal, defendant recounted “a museum of childhood sexual and physical
abusive traumas” beginning from the age of four or five years. Dr. Glaser
believed defendant’s psychological profile was most consistent with the
phenomenon of “dissociative states” in which a person is not fully in control of his
or her thoughts, feelings, or behavior. Individuals with dissociative disorders are
aware of the occurrence of lost periods of time or memory lapses. Sexual abuse is
a predisposing factor for dissociative disorders.
Defendant testified concerning the Clark killing, stating he independently
could recall only what occurred up until the time he pushed Clark out of the truck
with his feet. After that, his recollection was based upon his viewing of the
videotape of the sodium amytal interview. Defendant related the following.
He testified he was driving his pickup truck along Union Avenue about
2:00 a.m. and observed Clark at the corner of Belle Terrace and Union, a location
frequented by prostitutes. Defendant had not seen Clark before. She appeared to
be between 20 and 30 years of age. He stopped at the corner and opened the
passenger door. Clark entered the vehicle and asked whether he wanted a “date,”
which meant she was looking for a customer. Defendant drove around the corner
and stopped. Clark wanted to go to a motel but defendant did not, because he did
not want to be “rolled” by a pimp. Clark agreed to go out to the “country” instead.
The two decided on $30 for a “half-and-half,” which is half oral sex and half
Defendant stated he drove for approximately 15 to 20 minutes. When they
reached Hermosa Road, defendant stopped and lay down in the front seat of the
truck, and Clark began giving him oral sex. Defendant did not have an erection;
he “sometimes ha[d] problems with that.” When Clark asked what was wrong,
defendant told her to “work at it a little more.” Clark became angry. Defendant
was feeling “sort of embarrassed, sort of crushed.” Clark became abusive and
waved her arms around. She asked whether he preferred little boys. Defendant
said he liked girls and women, and maybe she was not doing her job right.5 Clark
Defendant testified he sometimes feared he was inclined toward
called him “queer” and “faggot.” Defendant opened the passenger door and
pushed her out with his feet. Clark was walking toward him pointing her finger at
him, and he felt threatened, so he pointed a gun at her, pulled the trigger, and shot
her. A second or two later, he shot her five more times. Defendant was thinking
only of protecting himself. He feared her and her reporting him. There was no
argument concerning money.
Defendant testified that after he shot Clark, she said “Oh God.” Then she
walked into the middle of the road, lay down, and died. Defendant drove down
the road and then came back to see whether she was alive. Finding her dead, he
dragged her body to the canal and placed it in the water. Defendant drove home
and threw the gun into the back of his truck. At home, he wandered around the
house and watched some television, feeling confused. Later that same day, he
returned to the scene of the killing to try to figure out what had happened. He saw
a pool of blood in the road, blood spots, tracks, and a body in the canal. At that
point he knew he had killed Clark.
Defendant said he went to work the next few days and did not tell anyone
about the killing. He was arrested the following Friday afternoon. After waiving
his Miranda rights, he gave a statement concerning the Clark killing. He provided
the authorities with “enough” information to ensure he would be convicted and
executed. Some of the things he told them — for example, that he possibly
discussed calling a taxicab after he first shot Clark — were not true. Defendant
was depressed and suicidal at the time.
In Dr. Glaser’s opinion, at the time of the killing defendant “was
overwhelmed with numerous affective states specifically stemming from his
sexual dysfunction and specifically the volley of expletives that followed such
dysfunction from Miss Clark,” and “the actual shooting and killing was an
impulsive heat of passion event” that occurred without planning. In this emotional
state, defendant was incapable of premeditating and deliberating or of coldly
weighing the consequences of killing Clark. Further, defendant’s confession was
“part of his larger scheme to essentially either commit suicide at his own hand or
commit legal suicide by insuring his demise by, as he puts it, coming up with the
perfect first degree murder conviction story.”
Dr. Bird agreed the killing of Clark was an impulsive, emotional act of
passion and fear. It was a sexual incident and had nothing to do with money.
There was no planning or deliberation, just a reaction to a “rush of happenings,”
including being called names by a woman who looked like his stepmother
Barbara. There was no “thoughtful advance planning or anticipation of doing
what he did,” no reasoning or thinking, and no weighing of consequences.
In Dr. Franz’s opinion as well, defendant killed Clark in a very emotional,
anxious state in which he did not have the “skills available” to premeditate and
deliberate. Defendant simply reacted to the names Clark was calling him. The
killing was “not a weighing or a balancing, but simply a defense mechanism to
protect himself,” an emotional act. “It was basically, you would call it survival.”
The only evidence presented by the prosecution in rebuttal was testimony
that in February of 1983, defendant briefly had been terminated from his position
at the sheriff’s department as the result of a complaint by a prostitute, but
subsequently had been reinstated.
C. Penalty phase
case in aggravation
Ellen Martinez, the prostitute whose complaint against defendant was the
subject of the prosecution’s guilt phase rebuttal, testified regarding the events in
early 1983 that led to the complaint. Martinez testified that defendant at that time,
while on duty, had stopped her while she was having sex with a customer in a
cemetery outside Bakersfield. The customer was allowed to leave, but defendant
placed Martinez in his patrol car and told her he was going to take her
“downtown.” When Martinez could not locate her underwear, defendant went to
look for it in the cemetery, but was unsuccessful. Defendant then told Martinez to
undress, and took photographs of her breasts and vaginal area. Afterwards,
defendant dropped Martinez off near her motel room.
Tambri Butler, also a Union Avenue prostitute, testified defendant
assaulted her in February 1986. According to Butler, defendant picked her up in a
white pickup truck, forced her to perform various sex acts by shocking her with a
“stinger” gun and firing an automatic weapon across the bridge of her nose, and
then pushed her out of the truck and tried to run her over.
Investigator Hodgson testified a black Excam brand .25-caliber automatic
pistol, admitted without objection as exhibit 1, was taken from the black bag found
in defendant’s truck.
2. The defense case in mitigation
Dr. Bird testified concerning the videotape of defendant’s interview with
Dr. Glaser conducted while defendant was under the influence of sodium amytal.
The videotape was played for the jury. On the tape, defendant told the same story
of the Clark murder he had told at trial. He also stated, “I hurt for the girl [Clark] I
killed.” Dr. Bird reiterated his opinion that defendant was under “extreme
emotional distress” when he shot Clark, and that the lifetime of abuse he had
suffered made it difficult for him to conform his conduct to the law. In Dr. Bird’s
opinion, defendant was an emotionally impaired person.
Defendant’s wife (Joyce Rogers), step-daughter (Carol Truitt), and brother
(Dale Rogers) testified regarding defendant’s qualities as a loving husband, father,
grandfather, and brother. Seven law enforcement officers, including defendant’s
former beat partner, testified defendant was a skilled and conscientious deputy
sheriff who was able to defuse emotionally charged situations, and described him
as a good friend. Several of the officers testified defendant always had appeared
A. The trial court’s failure to conduct a hearing into defendant’s
competence to stand trial
Defendant claims the trial court’s failure (both before and during the trial)
to inquire into, and to conduct a hearing regarding, his competence to stand trial
and to assist counsel in his defense, violated his right to due process of law under
the Fourteenth Amendment to the United States Constitution, as well as his rights
under sections 1367 and 1368. Defendant claims this failure also violated his right
to be mentally present at the proceedings, both under the confrontation clause of
the Sixth Amendment to the federal Constitution and article 1, section 15 of the
California Constitution and state statutory law. (See § 1043; In re Dennis (1959)
51 Cal.2d 666, 672; People v. Berling (1953) 115 Cal.App.2d 255, 267-268.) We
reject these contentions.
Both the due process clause of the Fourteenth Amendment to the United
States Constitution and state law prohibit the state from trying or convicting a
criminal defendant while he is mentally incompetent. (§ 1367; Drope v. Missouri
(1975) 420 U.S. 162, 181; Pate v. Robinson (1966) 383 U.S. 375, 384-386; People
v. Ramos (2004) 34 Cal.4th 494, 507.) A defendant is incompetent to stand trial if
he or she lacks “ ‘a sufficient present ability to consult with his lawyer with a
reasonable degree of rational understanding — and . . . a rational as well as a
factual understanding of the proceedings against him.’ ” (Dusky v. United States
(1964) 362 U.S. 402, 402; see also Godinez v. Moran (1993) 509 U.S. 389, 399-
400; § 1367; People v. Stewart (2004) 33 Cal.4th 425, 513.)
Both federal due process and state law require a trial judge to suspend trial
proceedings and conduct a competency hearing whenever the court is presented
with substantial evidence of incompetence, that is, evidence that raises a
reasonable or bona fide doubt concerning the defendant’s competence to stand
trial. (§ 1368; Drope v. Missouri, supra, 420 U.S. at p. 181; Pate v. Robinson,
supra, 383 U.S. at pp. 384-386; People v. Blair (2005) 36 Cal.4th 686, 711;
People v. Pennington (1967) 66 Cal.2d 508, 516-517.) The court’s duty to
conduct a competency hearing may arise at any time prior to judgment. (People v.
Danielson (1992) 3 Cal.4th 691, 726, overruled on other grounds in Price v.
Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) Evidence of incompetence
may emanate from several sources, including the defendant’s demeanor, irrational
behavior, and prior mental evaluations. (Drope v. Missouri, supra, 420 U.S. at
p. 180; People v. Ramos, supra, 34 Cal.4th at pp. 507-508.) But to be entitled to a
competency hearing, “a defendant must exhibit more than . . . a preexisting
psychiatric condition that has little bearing on the question . . . whether the
defendant can assist his defense counsel.” (People v. Ramos, supra, 34 Cal.4th at
p. 508; see also People v. Danielson, supra, 3 Cal.4th at p. 727.)
A trial court’s decision whether or not to hold a competence hearing is
entitled to deference, because the court has the opportunity to observe the
defendant during trial. (See People v. Danielson, supra, 3 Cal.4th at p. 727; see
also Drope v. Missouri, supra, 420 U.S. at p. 181.) The failure to declare a doubt
and conduct a hearing when there is substantial evidence of incompetence,
however, requires reversal of the judgment of conviction. (Drope v. Missouri,
supra, 420 U.S. at p. 181; Pate v. Robinson, supra, 383 U.S. at pp. 384-386;
People v. Blair, supra, 36 Cal.4th at p. 711.)
Defendant contends there was substantial evidence of his incompetence
before the trial court. Defendant first points to testimony, received both during the
preliminary hearing and later during the guilt phase, indicating that defendant was
depressed and suicidal in jail and had been placed on a suicide watch. Dr. Bird
testified defendant scored extremely high on psychological tests designed to assess
suicide risk. Dr. Glaser and Dr. Franz agreed defendant was an extreme suicide
risk. Although the risk was most elevated immediately following defendant’s
arrest, the summer before trial defendant had hoarded razor blades and strips of
cloth in his jail cell. Dr. Franz testified the suicide risk continued up until the time
Actual suicide attempts or suicidal ideation, in combination with other
factors, may constitute substantial evidence raising a bona fide doubt regarding a
defendant’s competence to stand trial. (See Drope v. Missouri, supra, 420 U.S. at
pp. 166-167, 179-180; Moore v. United States (9th Cir. 1972) 464 F.2d 663, 665-
666; see also Pate v. Robinson, supra, 383 U.S. at p. 381.) Nonetheless, in
contrast to the cases cited above, here defendant’s suicidal tendencies did not
constitute substantial evidence of incompetence, for they were not accompanied
by bizarre behavior, the testimony of a mental health professional regarding
competence, or any other indications of an inability to understand the proceedings
or to assist counsel. (Cf. People v. Ramos, supra, 34 Cal.4th at p. 509
[defendant’s hoarding of medication in apparent preparation for a suicide attempt
did not give rise to a doubt regarding his competence to stand trial].)
Defendant points out that his counsel moved to suppress his tape-recorded
confession on the ground defendant was not “psychologically fit” to waive his
Miranda rights after his arrest and was “not in a position to give free and
voluntary consent.” Defendant also notes his counsel’s argument during opening
statements that defendant suffered from “extreme mental problems.” Counsel
never suggested, however, that defendant’s alleged inability to consent to
interrogation gave rise to a doubt concerning his competence to stand trial.
Although trial counsel’s failure to seek a competency hearing is not determinative
(see Odle v. Woodford (9th Cir. 2000) 238 F.3d 1084, 1088-1089), it is significant
because trial counsel interacts with the defendant on a daily basis and is in the best
position to evaluate whether the defendant is able to participate meaningfully in
the proceedings (see id. at p. 1088).
Defendant argues there was substantial evidence of incompetence in the
guilt phase testimony demonstrating that he suffered from long-standing mental
problems. All three defense mental health experts agreed defendant suffered some
type of dissociative disorder — a “a splitting off of [defendant’s] mind” into
different directions — which possibly rose to the level of a multiple personality
disorder.6 No medical expert, however, testified defendant was likely to dissociate
during the trial. Rather, the testimony suggested defendant’s dissociative states
were triggered by traumatic events such as childhood sexual abuse or Clark’s
verbal abuse. Likewise no medical expert ever related defendant’s alleged
multiple personality disorder to any inability to understand the trial process or
assist his attorneys.
Defendant also points to evidence establishing that he twice was exposed
accidentally to the drug PCP on the job, causing serious temporary brain
The Diagnostic and Statistical Manual of Mental Disorders explains
“dissociative disorders” in part as follows: “The essential feature of the
Dissociative Disorders is a disruption in the usually integrated functions of
consciousness, memory, identity, or perception. The disturbance may be sudden
or gradual, transient or chronic.” (Am. Pyschiatric Assn., Diagnostic and
Statistical Manual of Mental Disorders (4th ed. 2000, text rev.) p. 519).
Dissociative amnesia and dissociative identity disorder (formerly multiple
personality disorder) are examples of dissociative disorders. (Ibid.)
impairment and dissociation. The testimony suggests, however, the effects of the
PCP exposure were temporary. There was no testimony the brief exposure
affected defendant’s competence to stand trial.
Finally, defendant argues that a doubt concerning his competence should
have been raised by the evidence suggesting he could not recall various events in
his childhood and those surrounding the killing of Clark and Benintende. We
never have held that memory loss regarding the charged crime renders a defendant
unable to assist in his or her defense. (Cf. People v. Frye (1998) 18 Cal.4th 894,
948-952 [testimony establishing defendant had a mild memory impairment that
made it difficult for him to recapture memory and to retain information, and also
that he might have brain damage, was not substantial evidence of incompetence].)
Moreover, the question whether defendant genuinely could not remember the
events surrounding the crimes was disputed at trial, and there was evidence
demonstrating defendant had recovered some memories through the sodium
amytal interview. There was no testimony suggesting defendant’s memory loss
affected his ability to understand the proceedings or assist his counsel.
Accordingly, here the mental health testimony was similar to the kind of
“ ‘ “psychiatric testimony . . . with little reference to defendant’s ability to assist in
his own defense” ’ ” that we have found insufficient to raise a doubt regarding a
defendant’s competence to stand trial. (People v. Danielson, supra, 3 Cal.4th at
The trial court had the opportunity to observe defendant’s testimony and
demeanor during the trial. Defendant’s intelligence was above average.
Defendant testified coherently and articulately, and there was nothing in his
testimony that would have caused the trial court to question whether he was
unable to understand the proceedings or cooperate with counsel.
In sum, defendant’s “history, statements and conduct did not approach the
overwhelming indications of incompetence” present in Drope and other cases.
(Davis v. Woodford (9th Cir. 2004) 384 F.3d 628, 646; see also People v. Ramos,
supra, 34 Cal.4th at p. 509.) Considering all the evidence before the trial court,
there was no substantial indication of incompetence requiring the trial court to
declare a doubt and conduct a competence hearing. For the same reasons,
defendant has not shown he was mentally absent from the trial in violation of his
rights under the state or federal Constitutions or state statutory law.7 (See § 1043;
In re Dennis, supra, 51 Cal.2d at p. 672; People v. Berling, supra, 115 Cal.App.2d
at pp. 267-268.)
With respect to this and virtually every other claim raised on appeal,
defendant urges that the error or misconduct he is asserting infringed upon various
additional federal constitutional rights to a fair and reliable trial. In most
instances, insofar as defendant raised the issue at all in the trial court, he failed
explicitly to make some or all of the constitutional arguments he now advances.
In each instance, unless otherwise indicated, it appears that either (1) the appellate
claim is of a kind (for example, failure to declare a doubt concerning defendant’s
competence, failure to instruct sua sponte, or erroneous instruction affecting
defendant’s substantial rights) that required no trial court action by the defendant
to preserve it, or (2) the 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 erroneous for the reasons actually
presented to that court, had the additional legal consequence of violating the
Constitution. To that extent, defendant’s new constitutional arguments are not
forfeited on appeal. (See People v. Partida (2005) 37 Cal.4th 428, 433-439; see
also People v. Cole (2004) 33 Cal.4th 1158, 1195, fn. 6; People v. Yeoman (2003)
31 Cal.4th 93, 117.)
In the latter situation, of course, the rejection, on the merits, of a claim that
the trial court erred regarding the issue actually presented to that court necessarily
leads to rejection of the newly applied constitutional “gloss” as well. No separate
constitutional discussion is required in such instances, and we therefore provide
none. (See People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17.)
B. Joinder of the Clark and Benintende counts
Defendant was charged in a single information with the killings of Clark
and Benintende. Defendant did not move to sever the two counts. Defendant now
claims the joinder of the Clark and Benintende charges resulted in gross unfairness
depriving him of his federal constitutional rights to due process, a fair trial, and
equal protection of the law.
Section 954 governs joinder and severance, providing in pertinent part:
“An accusatory pleading may charge . . . two or more different offenses of the
same class of crimes or offenses, under separate counts . . . provided, that the court
in which a case is triable, in the interests of justice and for good cause shown, may
in its discretion order that the different offenses or counts set forth in the
accusatory pleading be tried separately . . . .” Defendant concedes the statutory
requirements of joinder were met — the two murder counts charged crimes of the
same class (see People v. Catlin (2001) 26 Cal.4th 81, 100) and were connected by
a common murder weapon — and acknowledges his failure to move to sever the
counts at trial forfeited any claim that the trial court abused its discretion in
denying severance. (See People v. Maury (2003) 30 Cal.4th 342, 392; People v.
Hawkins (1995) 10 Cal.4th 920, 939-940.) He further acknowledges the trial court
had no statutory duty to order severance on its own motion. (See ibid.) He
asserts, however, the specific claim that he is entitled to reversal of both murder
convictions because joinder of the Clark and Benintende counts resulted in gross
unfairness violating his right to due process of law under the federal Constitution.
(See Bean v. Calderon (9th Cir. 1998) 163 F.3d 1073, 1083-1086.)
We have held that even if a trial court’s ruling on a motion to sever is
correct at the time it was made, a reviewing court still must determine whether, in
the end, the joinder of counts or defendants for trial resulted in gross unfairness
depriving the defendant of due process of law. (People v. Mendoza (2000) 24
Cal.4th 130, 162; People v. Ochoa (1998) 19 Cal.4th 353, 409; see also People v.
Grant (2003) 113 Cal.App.4th 579, 594 [finding gross unfairness even though trial
court did not err in ruling on motion for severance].) Defendant asserts such
review for gross unfairness is available even when no motion to sever ever was
made. (See People v. Simms (1970) 10 Cal.App.3d 299, 308-309, 317 [reviewing
joint trial for gross unfairness, and finding none, even in the absence of a motion
to sever defendant’s trial from that of codefendant]; People v. Chambers (1964)
231 Cal.App.2d 23, 28, 34 [reversing judgment in the absence of an objection to
joinder of defendant’s trial with that of codefendant, where joinder in combination
with other errors resulted in gross unfairness and denial of due process]; cf. People
v. Burns (1969) 270 Cal.App.2d 238, 251-253 [reviewing for gross unfairness
following an untimely motion to sever]). This court never has adopted the
position urged by defendant, however.
We need not decide whether review for gross unfairness is available in the
absence of a motion to sever or an objection to joinder, for even if such review is
available, gross unfairness did not result in the present case. Ordinarily, “[w]hen
the statutory requirements for joinder are met, a defendant must make a clear
showing of prejudice” to warrant severance.8 (People v. Marshall (1997) 15
Cal.4th 1, 27; see also People v. Sandoval (1992) 4 Cal.4th 155, 172.) “The initial
step in any review of a motion to sever is to examine the issue of cross-
admissibility of evidence. Since cross-admissibility would ordinarily dispel any
inference of prejudice [citations], we must inquire, had the severance motion been
Defendant was tried before the effective date of Proposition 115, adopted
by the voters in 1990. Accordingly, Proposition 115’s changes to the law
affecting joinder and severance (see, e.g., Cal. Const., art. I, § 30, subd. (a); Pen.
Code, § 954.1) are inapplicable to this case. (See People v. Arias (1996) 13
Cal.4th 92, 126, fn. 7.)
granted, would the evidence pertinent to one case have been admissible in the
other under rules of evidence which limit the use of character evidence or prior
similar acts to prove conduct [citations].” (Williams v. Superior Court (1984) 36
Cal.3d 441, 448, fn. omitted.) Under section 1101 of the Evidence Code,
“evidence of a person’s character or a trait of his or her character . . . is
inadmissible when offered to prove his or her conduct on a specified occasion,”
but “evidence that a person committed a crime, civil wrong, or other act” is
admissible “when relevant to prove some fact (such as motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake or accident . . . ) other
than his or her disposition to commit such an act.” (Evid. Code, § 1101, subds. (a)
& (b).) To be admissible, other-crimes evidence must be relevant to a material
fact, and its admission must not be precluded by any rule or policy requiring the
exclusion of relevant evidence. (See People v. Catlin, supra, 26 Cal.4th at p. 146.)
Here, the identity of Benintende’s killer was a disputed material fact.
Defendant testified he had no memory of that killing, and defense counsel did not
concede defendant killed Benintende. Further, evidence of the Clark killing was
relevant to the issue of identity. We have explained: “ ‘To be relevant on the
issue of identity, the uncharged crimes must be highly similar to the charged
offense.’ [Citation]. The similarity, considering the degree of similarity and the
number of common marks, should amount to a signature.” (People v. Catlin,
supra, 26 Cal.4th at p. 111; People v. Ewoldt (1994) 7 Cal.4th 380, 403; Williams
v. Superior Court, supra, 36 Cal.3d at p. 450.) Here, the Clark and Benintende
murders shared a number of common and distinctive marks: both women were
prostitutes who last were seen alive on Union Avenue in Bakersfield; both
suffered multiple gunshot wounds to the torso; both bodies were dumped in the
Arvin-Edison Canal, in rural areas about seven miles from each other; and both
were killed with the same gun, which belonged to defendant. Accordingly, the
evidence of the two attacks was “probative of a common method or approach
sufficient to support cross-admissibility” on the issue of identity. (People v.
Marshall, supra, 15 Cal.4th at p. 28; see also People v. Bradford (1997) 15 Cal.4th
Furthermore, no rule or policy would have required exclusion of the
evidence pertaining to the Clark homicide in a separate trial on the Benintende
count. The evidence was highly probative, and its probative value was not
outweighed by the danger of undue prejudice. (See Evid. Code, §352.) The facts
of the Clark killing, while sordid, were not unduly inflammatory. Accordingly,
any inference that a joint trial prejudiced defendant’s ability to defend against the
Benintende charge is dispelled. (See People v. Catlin, supra, 26 Cal.4th at p. 112;
People v. Marshall, supra, 15 Cal.4th at p. 28.)
Likewise, at a separate trial of the Clark matter, evidence of the Benintende
killing would have been admissible to establish intent to kill. Evidence
demonstrating that defendant had killed another prostitute and dumped her body in
the same canal in which Clark’s body was found would have refuted defendant’s
claim that he killed Clark while in a dissociative state, and supported an inference
that defendant intended to kill Clark. (See People v. Ewoldt, supra, 7 Cal.4th at
p. 402 [“ ‘[T]he recurrence of a similar result . . . tends (increasingly with each
instance) to negative accident or inadvertence or self-defense or good faith or
other innocent mental state, and tends to establish (provisionally, at least, though
not certainly) the presence of the normal, i.e., criminal, intent accompanying such
an act . . .’ ” quoting 2 Wigmore, Evidence (Chadbourne rev. ed. 1979) § 302,
p. 241); see also People v. Robbins (1988) 45 Cal.3d 867, 879-880.) Further, the
evidence was not more prejudicial than probative, because it did not encourage the
jury to prejudge defendant’s case based upon extraneous or irrelevant
considerations. (See People v. Zapien (1993) 4 Cal.4th 929, 958.).
Defendant asserts the joinder prejudiced him because, absent joinder, there
likely would have been no capital charges. (See People v. Catlin, supra, 26
Cal. 4th at p. 110 [prejudice may result from joinder where any one of the charges
carries the death penalty or joinder of them turns the matter into a capital case].)
If the cases had been severed, section 190.2, subdivision (a)(3) would not have
applied, and under section 190.2, subdivision (a)(2), the possibility of a death
sentence would have arisen only if the first case to be tried had been the
Benintende case, and only if there had been a conviction in that case. (Cf.
Williams v. Superior Court, supra, 36 Cal.3d at p. 454.) In view of the cross-
admissibility of the evidence of the Clark homicide in the Benintende matter,
however, conviction on the Benintende charges would have been likely even had
the trials been severed. Accordingly, the joinder did not render the Clark offense a
capital crime where otherwise it would not have been. We thus find that gross
unfairness did not result from the joinder.
Defendant argues the trial court’s failure to instruct the jury it could not
consider evidence of each murder as character evidence to show defendant’s
propensity to commit the other murder contributed to the prejudice resulting from
the joinder. He further asserts this instructional lapse constituted an independent
violation of his rights to due process and a fair trial. (See Panzavecchia v.
Wainwright (5th Cir. 1981) 658 F.2d 337, 341; see generally Spencer v. Texas
(1967) 385 U.S. 557, 561-563.)
We have held a trial court has no “duty to furnish a limiting instruction on
cross-admissible evidence in a trial of multiple crimes” on its own motion. (People
v. Hawkins, supra, 10 Cal.4th at p. 942; see also People v. Sapp (2003) 31 Cal.4th
240, 281; People v. Mendoza, supra, 24 Cal.4th at p. 163.) In the context of
limiting instructions concerning evidence of other crimes, we have recognized a
narrow exception to the general rule not requiring sua sponte instruction: an
objection may not be required in the “occasional extraordinary case in which
unprotested evidence of past offenses is a dominant part of the evidence against
the accused, and is both highly prejudicial and minimally relevant to any
legitimate purpose.” (People v. Collie (1981) 30 Cal.3d 43, 64; see also People v.
Lang (1980) 49 Cal.3d 991, 1020; People v. Milner (1988) 45 Cal.3d 227, 251-
252.) Defendant contends this exception applies to the rule not requiring sua
sponte instruction on the limited admissibility of cross-admissible evidence in
joint trials. Assuming the exception applies, defendant would not benefit from it.
The Benintende evidence was not a “dominant part” of the evidence concerning
the Clark count. Although the Clark evidence was a major part of the evidence
related to the Benintende count, it was neither highly prejudicial nor minimally
relevant. Defendant’s instructional claim thus fails.
Defendant finally contends the joinder violated his Fifth Amendment right
to testify on his own behalf in the Clark case while remaining silent in the
Benintende case, his Sixth Amendment right to present a defense to the
Benintende charges, and state and federal guarantees of equal protection of the
laws (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7). Because defendant
forfeited each of these claims by failing to raise them at trial (see People v.
Carpenter (1997) 15 Cal.4th 312, 362), we decline to address their merits. We
note, however, that we previously have rejected an identical equal protection
claim. (People v. Carpenter, supra, 15 Cal.4th at p. 362.)
C. Defendant’s absence from in-chambers hearings regarding juror
Defendant claims his absence from several unreported in-chambers
conferences regarding juror hardship excusals violated his rights under the
confrontation and due process clauses of the Fifth, Sixth, and Fourteenth
Amendments to the United States Constitution, as well as his rights under Penal
Code sections 977 and 1043 and article I, section 15 of the California Constitution.
At the commencement of the trial, the court agreed to provide the jurors
with a hardship questionnaire prepared by defense counsel, who suggested some
jurors could be eliminated by agreement of the parties based upon their answers to
the questionnaire. In response to a question from the trial court regarding section
190.9,9 defense counsel explained his view that the statute’s requirements would
be satisfied if counsel and the court met informally off the record to discuss the
questionnaires, but then put the results of their conference on the record. The
prosecutor agreed. The court then asked defendant: “Mr. Rogers, is that procedure
all right with you?” Defendant responded “I don’t have an opinion, sir.”
The court distributed the questionnaires to the first panel of jurors. After an
in-chambers unreported conference which defendant did not attend, 10 prospective
jurors were excused by stipulation of counsel. The court repeated this process
with each panel of jurors, eventually excusing 133 jurors based upon their
responses to the hardship questionnaires and counsel’s stipulation.10
Defendant now contends his absence from the in-chambers unreported
conferences at which his counsel stipulated to the hardship excusals violated his
At the time of trial, section 190.9 read: “In any case in which a death
sentence may be imposed, all proceedings conducted after the effective date of this
section in the justice, municipal, and superior courts, including proceedings in
chambers, shall be conducted on the record with a court reporter present. [¶] The
court shall assign a court reporter who uses computer-aided transcription
equipment to report all proceedings under this section.” (Stats. 1986, ch. 387, § 3,
The record does not reflect (1) a request by defendant or his counsel for
defendant to be present at these in-chambers conferences, (2) an objection by
either defendant or counsel to defendant’s absence from the conferences, or (3) a
waiver by defendant of his presence.
state and federal rights to be present at all critical stages of his trial. The federal
law governing a defendant’s right to be present at trial is well established. “ ‘A
criminal defendant’s right to be personally present at trial is guaranteed by the
Sixth and Fourteenth Amendments of the federal Constitution . . . . [Citations.] A
defendant, however, “does not have a right to be present at every hearing held in
the course of a trial.” [Citation.] A defendant’s presence is required if it “bears a
reasonable and substantial relation to his full opportunity to defend against the
charges.” [Citation.]’ ” (People v. Lucero (2000) 23 Cal.4th 692, 716-717; see
Kentucky v. Stincer (1987) 482 U.S. 730, 745; Snyder v. Massachusetts (1934) 291
U.S. 97, 105-106.) The standard under sections 977 and 1043 is similar. “ ‘[T]he
accused is not entitled to be personally present during proceedings which bear no
reasonable, substantial relation to his opportunity to defend the charges against
him . . . . [Citation.]’ [Citation.]” (People v. Ervin (2000) 22 Cal.4th 48, 74;
People v. Waidla (2000) 22 Cal.4th 690, 742.)
We previously have rejected claims of error based upon a defendant’s
absence from discussions of juror hardship excusals. (E.g., People v. Ervin, supra,
22 Cal.4th at pp. 72-74; People v. Hardy (1992) 2 Cal.4th 86, 178.) We do so
again here. As in Ervin, “[d]efendant’s presence at counsel’s jury screening
discussions . . . would have served little purpose” (People v. Ervin, supra, 22
Cal.4th at p. 74), and he accordingly had no state statutory or federal constitutional
right to attend those discussions. (Accord, Cohen v. Senkowski (2d Cir. 2002) 290
F.3d 485, 490 [no federal right to presence during discussion of hardship
Defendant contends the cases cited above do not govern here, because the
juror questionnaires ― and hence the in-chambers discussions ⎯ were not
limited to the question of hardship. Although the discussions related to hardship
were not reported, the questionnaires concerning this subject have been made part
of the record. Of the 133 prospective jurors of whom defendant complains, 20
gave answers that extended beyond hardship to areas of potential bias such as
exposure to pretrial publicity, acquaintance with the defendant or with Bakersfield
law enforcement, or other matters.
Defendant contends that, to the extent the prospective jurors’ answers on
the questionnaires regarding hardship extended beyond that subject to other
matters involving potential bias, we may infer the in-chambers discussions
concerning those jurors also extended beyond the routine matter of hardship. We
decline to engage in such speculation. Rather, because the parties stated on the
record that they would examine the questionnaires in chambers to determine
whether there were any “obvious hardship cases that can simply be excused by
agreement of all parties,” we presume that is what occurred.
Defendant asserts his absence from the in-chambers discussions of hardship
excuses prevented him from consulting with counsel, in violation of his Sixth
Amendment right to the effective assistance of counsel. (See Geders v. United
States (1976) 425 U.S. 80, 88-91 [trial court’s order prohibiting counsel from
speaking with defendant during a 17-hour overnight recess during trial violated his
Sixth Amendment rights].) Defendant forfeited this claim by failing to object in
the trial court. Were we to reach the merits, we would find no Sixth Amendment
violation, because the trial court did not prohibit defendant and his counsel from
discussing hardship excuses or any other aspect of the trial.
D. Asserted inadequacy of the record on appeal
Defendant contends his rights under section 190.9 and the Sixth, Eighth,
and Fourteenth Amendments to the United States Constitution to a record
adequate to permit meaningful appellate review were violated by the trial court’s
failure to order that the in-chambers discussions regarding juror hardship be
reported. Defendant contends an adequate record would demonstrate that the trial
court abused its discretion and violated his constitutional rights by improperly
granting hardship excuses.
We are not persuaded. It was defense counsel who initially suggested
having off-the-record discussions of hardship questionnaires followed by on-the-
record excusals. The court and the prosecutor agreed.11 Accordingly, defendant
waived any claim the trial court erred in failing to transcribe these proceedings
(People v. Gaston (1978) 20 Cal.3d 476, 485 [stipulation that no reporter’s
transcript of portion of proceedings was needed waived complaint of inadequate
record on appeal]; see also People v. Cummings (1993) 4 Cal.4th 1233, 1333, fn.
The portion of the record in which defense counsel agreed to the in-
chambers discussions is as follows:
“[Defense counsel] MR. LORENZ: Well, all right. I think that if we have
time to examine the question[n]aires we may be able to eliminate some people by
“There should be some obvious hardship cases that can simply be excused
by stipulation of all parties. That would save us time from questioning those
“THE COURT: All right, can we do that? Can we do that and not violate
section 190.9 in your view?
“MR. LORENZ: My viewpoint of that section is we can still meet
informally and then put the results of our conference on the record.
“THE COURT: Well, I am not sure about that.
“MR. LORENZ: We would simply have whatever conference we have on
the record. I don’t know that that matters.
“THE COURT: Any objection to that, Mrs. Ryals?
“MRS. RYALS [The prosecutor]: As long as it’s on the record, I have no
Defendant contends the record does not show defense counsel agreed to
unreported discussions regarding juror hardship excusals. We disagree. Counsel
suggested having off-the-record discussions followed by reported conferences
memorializing the results, that is, noting which jurors were to be excused. That is
precisely what occurred.
70) and may not complain on appeal (People v. Mickey (1991) 54 Cal.3d 612, 667
[failure to object in trial court forfeits claim of inadequate appellate record of juror
In any event, state law entitles a defendant only to an appellate record
“adequate to permit [him or her] to argue” the points raised in the appeal. (People
v. Howard (1992) 1 Cal.4th 1132, 1165-1166.) Federal constitutional
requirements are similar. The due process and equal protection clauses of the
Fourteenth Amendment require the state to furnish an indigent defendant with a
record sufficient to permit adequate and effective appellate review. (Griffin v.
Illinois (1956) 351 U.S. 12, 16-20 ; Draper v. Washington (1963) 372 U.S. 487,
495-496.) Similarly, the Eighth Amendment requires reversal only where the
record is so deficient as to create a substantial risk the death penalty is being
imposed in an arbitrary and capricious manner. (Stephens v. Zant (5th Cir. 1980)
631 F.2d 397, 403, rehg. den. and opn. mod. (1981) 648 F.2d 446, cert. den. 454
U.S. 1035.) The defendant has the burden of showing the record is inadequate to
permit meaningful appellate review. (People v. Scott (1997) 15 Cal.4th 1188,
1203-1204.) Defendant fails to do so here.
Defendant contends a more complete record would permit him to show the
trial court abused its discretion by improperly granting hardship excusals, resulting
in more than half the prospective jurors being excused for hardship. Defendant
asserts the unwarranted granting of hardship excusals systematically excluded
wage earners in violation of his Sixth and Fourteenth Amendment and state
constitutional rights to an impartial jury drawn from a fair cross-section of the
community. (Turner v. Murray (1986) 476 U.S. 28 [impartial jury requirement of
Sixth Amendment]; Duren v. Missouri (1979) 439 U.S. 357, 363-370 [fair cross-
section requirement of Sixth Amendment]; People v. Wheeler (1978) 22 Cal.3d
258, 272 [Sixth Amendment and article I, section 16 of the California
Constitution]; see also People v. White (1954) 43 Cal.2d 740 [exclusion of wage
earners].) He further contends allowing jurors too easily to opt out of serving on
the present capital case resulted in a jury unconstitutionally skewed in favor of the
death penalty, in violation of his Eighth Amendment right to a reliable penalty
To establish a prima facie violation of the Sixth Amendment’s fair cross-
section requirement, defendant would have to demonstrate: (1) the group allegedly
excluded was a distinctive group in the community; (2) the representation of that
group in the venire from which his jury was selected was not fair and reasonable
in relation to the number of such persons in the community; and (3) the
underrepresentation was due to systematic exclusion of that group in the jury
selection process. (Duren v. Missouri, supra, 439 U.S. at p. 364; People v.
Stansbury (1993) 4 Cal.4th 1017, 1061, revd. on other grounds in Stansbury v.
California (1994) 511 U.S. 318.) He also would have to show he preserved the
claim for appeal by objecting to the excusals on fair cross-section grounds below.
(See People v. Ervin, supra, 22 Cal.4th at p. 73; People v. Champion (1995) 9
Cal.4th 879, 906-907; People v. Mickey, supra, 54 Cal.3d at pp. 663-665.)
Defendant is unable to make either showing.
The questionnaires, along with the clerk’s minutes of the proceedings and
the on-the-record excusals of 133 of the prospective jurors whose hardship
questionnaires were discussed in chambers, have been made part of the record on
appeal. This record is adequate to establish that defense counsel stipulated or
agreed to all but one12 of these 133 excusals. The record thus is adequate to show
It is unclear whether defendant stipulated to the excusal of Prospective
Juror Carol K. In her questionnaire Carol K. noted she worked for the district
attorney’s office, and the court confirmed on the record her employment in that
(footnote continued on next page)
that defendant has waived any claim of error — including his federal
constitutional claims — predicated on these 132 excusals. (See People v. Ervin,
supra, 22 Cal.4th at p. 73; People v. Champion, supra, 9 Cal.4th at p. 906-907;
People v. Mickey, supra, 54 Cal.3d at pp. 663-665.)
As for the one prospective juror whom he did not stipulate to excuse —
Carol K. — defendant fails to demonstrate how a reporter’s transcript of the in-
chambers discussions would aid him in establishing a fair cross-section violation.
The exclusion of one prospective juror from the venire — even if erroneous —
could not demonstrate a distinctive group was systematically or regularly
excluded, resulting in a venire that did not fairly represent the community.
What we have said above holds true as well for defendant’s argument that
the lack of an adequate record has impaired his ability to present his Sixth-
(footnote continued from previous page)
office’s family support division. Her questionnaire contains the notation “cause,”
although the panel sheet simply says “excuse.” The stipulated settled statement
concerning the conference at which she was excused does not mention her,
although it mentions six other jurors who were excused by agreement of counsel
and the court. Only the clerk’s minutes state she was excused by agreement of the
court and counsel. In light of this conflict in the record, we assume Carol K. was
excused for cause. We further note that, because this trial occurred before our
decision in People v. Holt (1997) 15 Cal.4th 619, defendant did not forfeit any
claim that her excusal for cause was erroneous, even assuming he failed to object
in the trial court. (See id. at p. 658.)
Defendant also points to an ambiguity regarding the excusal of Prospective
Juror Jeffrey N. That juror’s questionnaire contains the notation “excused
hardship,” and the panel sheet contains an illegible notation. The reporter’s
transcript simply states he was excused. The court’s minutes and the stipulated
settled statement, however, state he was excused by agreement of counsel and the
court. Because the questionnaire, the panel sheet, and the reporter’s transcript do
not actually conflict with the clerk’s minutes and the settled statement, we assume
the latter two documents are correct. Thus, defendant has forfeited any objection
to the excusal of Jeffrey N.
Amendment-impartial-jury and Eighth-Amendment-reliability claims. The
premise of these claims is that the improper granting of hardship excusals resulted
in a “volunteer” jury. Defendant, however, forfeited any claim of an inadequate
record by agreeing to hold discussions of juror hardship off the record, and in any
event the record is adequate to show defendant stipulated or agreed to every off-
the-record excusal except that of Carol K. Finally, the excusal of that prospective
juror — even if improper — would not establish that the jury venire was
composed of volunteers in violation of defendant’s federal constitutional rights.
Defendant contends the voir dire of additional jurors that occurred on the
record, after the in-chambers hardship discussions, lends support to the inference
that systematic exclusion occurred during the off-the-record discussions of
hardship excuses. The record, however, again shows defendant stipulated or
consented to 131 of the 137 hardship excusals that were granted during on-the-
record voir dire. As for the remaining six excusals of which defendant complains,
they do not establish a pattern of overly generously granting hardship excusals.13
Prospective Juror Charles O. was a self-employed physician who stated on
his questionnaire: “[W]hen I am out of the office there will not be adequate
coverage to serve my patients and I will be financially unable to pay my
employees and carry my overhead.” The court excused Charles O. for financial
hardship after he stated, “my employees are going to be hard to pay if I am out of
the office for a period of time, much less me.” Prospective Juror John B., “the
only pharmacist employed by Kern Valley Hospital,” stated his absence for a long
period adversely could affect the patients he served. John B. said a substitute
pharmacist could work only part time. The court excused him because the “health
of the general public might be endangered by having the pharmacist gone from the
hospital for that length of time.” Prospective Juror Diane M., a health clerk at a
hospital, would be paid for four weeks of jury duty, after which she would be
required to take personal leave, which would present a financial hardship because
she and her husband recently had purchased a new house. She also was pregnant.
Prospective Juror Carl L., an oilfield worker for a temporary agency, was not paid
for days he did not work. He also recently had suffered a head injury and
(footnote continued on next page)
Rather, the trial court “used its practical experience and made pragmatic
evaluations” (People v. Mickey, supra, 54 Cal.3d at p. 666) of the hardship the
prospective jurors would experience should they be required to serve during a
lengthy trial. The court did not excuse the six jurors simply because they did not
wish to serve, but rather evaluated each potential juror’s particular situation before
excusing him or her. The on-the-record voir dire of these jurors lends no support
to defendant’s claim that a more complete record would enable him to demonstrate
lack of a fair cross-section or other error.
Defendant further claims the trial court’s failure to transcribe the in-
chambers discussions in violation of section 190.9 is reversible per se, and urges
us to reconsider our decision in People v. Cummings, supra, 4 Cal.4th at page
1333, footnote 70, rejecting such a claim. We decline to do so. Defendant next
contends the trial court’s failure to adhere to the requirements of section 190.9
arbitrarily denied him a state statutory entitlement in violation of his Fourteenth
Amendment right to due process of law. (Hicks v. Oklahoma (1980) 447 U.S.
343, 346.) As we observed above, this claim was forfeited by defendant’s
agreement to the procedure followed.
(footnote continued from previous page)
experienced frequent headaches. It appears the defense agreed to this excusal.
Prospective Juror Edna H., a self-employed painting and decorating contractor,
owned her own business and would miss work while serving on a jury.
Prospective Juror Jennifer P., a merchandise buyer who supported herself, said her
current employer would pay for jury service but was in the process of being
acquired by another company, and she was uncertain what her future benefits
would be. She said that from January through March, she would be very busy
planning for the holiday season; her job had no “slack season,” and she would be
unable to concentrate on the trial because of her employment duties.
Defendant finally asserts that “if (as it appears) defense counsel improperly
stipulated to systematically and intentionally exclude wage earners from jury
service . . . he may have been acting as ineffective counsel,” which prejudiced
defendant by denying him the right to a representative jury under the Sixth
Amendment, a fair trial under the Fifth and Fourteenth Amendments, and a
reliable verdict under the Eighth Amendment. Defendant fails to show a
reasonable probability that, but for counsel’s errors, the result of the proceedings
would have been different. (See Strickland v. Washington (1984) 466 U.S. 668,
693-694.) Here, nothing in the record suggests it is reasonably probable a jury that
included more wage earners would have found defendant did not commit the
crimes charged against him or would have voted to sentence him to life
imprisonment without the possibility of parole rather than death. (See Thomas v.
Borg (9th Cir. 1998) 159 F.3d 1147, 1152 [counsel’s failure to raise and preserve a
fair cross-section claim at trial did not prejudice defendant, because “the evidence,
both testimonial and physical . . . was so overwhelming that it is hard to believe
that any reasonable juror, black or white, would have voted to acquit him”]; see
also People v. Freeman (1994) 8 Cal.4th 450, 487 [defendant failed to show
prejudice from counsel’s failure to employ peremptory challenges to excuse
prospective jurors, because “[n]othing in the record suggests . . . it is reasonably
probable a different jury would have been more favorably disposed towards
E. Asserted erroneous admission of evidence
Over defendant’s objection that the evidence was irrelevant and collateral,
and impermissibly demonstrated propensity under section 1101 of the Evidence
Code, the trial court admitted rebuttal evidence regarding defendant’s brief
termination from the sheriff’s department in 1983 as a result of a complaint made
by a prostitute. The prosecutor argued the evidence showed defendant had a
motive to kill Clark — to keep her from reporting him, an act that could result in
his termination — and thus rebutted defense testimony suggesting defendant killed
Clark in an emotional state brought on by her taunts.
Lieutenant Paul Kent testified that in February 1983, while serving as a
sergeant in the internal affairs division of the Kern County Sheriff’s Department,
he investigated a complaint against defendant made by a prostitute named Ellen
Martinez. As a result of the investigation, defendant was terminated from the
department, but he appealed and was reinstated.
Investigator Hodgson read into the record a portion of the transcript of the
police interview of defendant conducted after his arrest for the Clark homicide. In
response to a question concerning the Martinez incident, defendant stated: “There
for awhile I was real pissed at her, but you know, I got to a point where I — I just
— I never believed a whore . . . [¶] . . . That hearing just — it just changed my
outlook, I guess.” Defendant felt “done wrong by” Martinez. Clark did not
remind him of Martinez, except that “she’s a whore.”
Defendant contends the evidence of his firing and reinstatement and of the
comments he made about those events was inadmissible under subdivision (a) of
section 1101 of the Evidence Code, because its sole purpose was to show his
propensity to abuse prostitutes, and that in any event it should have been excluded
as more prejudicial than probative under Evidence Code section 352. He asserts
the admission of the evidence violated both state law and his right to due process
under the Fourteenth Amendment to the United States Constitution, warranting
reversal of his convictions for the murders of Clark and Benintende.
The trial court found the evidence admissible under section 1101 of the
Evidence Code. We find no error in the trial court’s ruling. Section 1101 declares
that “evidence of a person’s character or a trait of his or her character (whether in
the form of an opinion, evidence of reputation, or evidence of specific instances of
his or her conduct) is inadmissible when offered to prove his or her conduct on a
specified occasion.” (Evid. Code, § 1101, subd. (a).) But “[n]othing in this
section prohibits the admission of evidence that a person committed a crime, civil
wrong, or other act when relevant to prove some fact (such as motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of mistake or accident . . . )
other than his or her disposition to commit such an act.” (Evid. Code, § 1101,
subd. (b); see also People v. Catlin, supra, 26 Cal.4th at pp. 145-146.) We review
for abuse of discretion a trial court’s ruling under section 1101. (People v. Roldan
(2005) 35 Cal.4th 646, 705.)
Here, the trial court admitted the evidence of defendant’s firing and
reinstatement and his comments about those events on the theory that it was
relevant to defendant’s motive in killing Clark. We agree. The evidence tended to
show defendant had a reason to fear the consequences of any report Clark might
make. It thus was relevant to motive, and therefore inferentially relevant to the
disputed issues of intent, premeditation, and deliberation. (See People v. Roldan,
supra, 35 Cal.4th at p. 707 [“evidence of motive makes the crime understandable
and renders the inferences regarding intent more reasonable”]; see also People v.
Heishman (1988) 45 Cal.3d 147, 167-171.)
Nor did the trial court abuse its discretion in ruling that the evidence was
admissible under Evidence Code section 352 because it was not more prejudicial
than probative. The evidence was probative of motive, and had no prejudicial
effect. At the guilt phase, the jury heard only that defendant had been briefly
terminated, and then rehired, as a result of Martinez’s complaint. The jury did not
hear the details of the complaint until the penalty phase. Because defendant was
reinstated, the jury heard no evidence suggesting that Martinez’s charges were
true. Defendant contends his own statements during police interrogation — for
example, that after the Martinez ordeal he “never believed a whore” and that the
incident “changed [his] outlook” — implied he was hostile to prostitutes and
therefore the admission of these statements was highly prejudicial. We disagree.
Evidence is prejudicial within the meaning of Evidence Code section 352 if it
encourages the jury to prejudge defendant’s case based upon extraneous or
irrelevant considerations. (See People v. Zapien, supra, 4 Cal.4th at p. 958.) The
evidence here did not do so. Rather, defendant’s comments suggesting he
believed all prostitutes were liars and were not to be trusted raised a permissible
inference that he feared a report by Clark would be overblown.
People v. Alcala (1984) 36 Cal.3d 604, defendant argues the
evidence was inadmissible because his motive for killing Clark ⎯ to prevent her
from turning him in ⎯ was obvious, and because the evidence was cumulative of
much more direct evidence of motive: defendant’s statements to the authorities
that he killed Clark because he feared she would report him. In Alcala, the
defendant was convicted of kidnapping and killing a young girl. We held
evidence of prior crimes against young girls inadmissible to prove the defendant’s
motive. We noted: “Common sense indicates that one who commits a felony upon
another wishes to avoid its detection. That may lead to the calculated murder of
his victim.” (People v. Alcala, supra, 36 Cal.3d at p. 634.) We then rejected the
prosecution’s proffered theory that the prior-crimes evidence was admissible to
establish a motive to eliminate the victim as a witness because those crimes might
result in more severe punishment for the current offense. We concluded that if
evidence of past offenses were admissible on that basis, “one’s criminal past could
always be introduced against him when he was accused of premeditated murder in
the course of a subsequent offense. The accused’s mere status as an ex-criminal
would place him under an evidentiary disability not shared by first offenders. The
prejudicial effect of the prior-crimes revelations would vastly outweigh their slight
and speculative probative value.” (Id. at p. 635.) We thus concluded that because
“the issue of witness elimination was before the jury in any event[,] speculation
that defendant was also worried about the implications of his past criminal record
is remote and cumulative.” (Ibid.)
Alcala does not govern here. As the discussion above makes clear, in
Alcala we were concerned with the implications of allowing admission of
evidence of past crimes for the sole purpose of showing the defendant feared
punishment as a repeat offender. We reasoned such a policy would be unfair to
repeat offenders because the highly prejudicial nature of prior-crimes evidence
would make it difficult for such offenders to receive a fair trial, whereas the
probative value of the evidence was slight. Here, the evidence of defendant’s
firing and reinstatement did not suggest defendant was involved in any criminal
activity; thus Alcala’s concerns about the highly prejudicial nature of prior-crimes
evidence are not implicated. Nor was the evidence offered here for the
impermissible and speculative purpose of suggesting defendant “was worried
about the implications of his past criminal record.” Rather, it was offered for the
specific purpose of showing defendant feared what would happen to him if Clark
were allowed to report him (even if, as he claimed in his statement to the
authorities, he initially shot her accidentally). As such, the evidence was highly
probative. Accordingly, the trial court did not abuse its discretion in admitting
evidence of defendant’s firing and reinstatement, as well as his taped comments.
contends he was prejudiced because the trial court gave
no instruction limiting, to proper purposes, the jury’s use of the evidence of his
firing and reinstatement and his taped comments.14 A trial court generally is not
The prosecution requested that the trial court give CALJIC No. 2.50, but
withdrew that request.
obligated to provide such an instruction on its own motion. (People v. Collie,
supra, 30 Cal.3d at p. 64; People v. Ochoa, supra, 19 Cal.4th at p. 411.) As noted
above, we have recognized a narrow exception to this rule in the “occasional
extraordinary case in which unprotested evidence of past offenses is a dominant
part of the evidence against the accused, and is both highly prejudicial and
minimally relevant to any legitimate purpose.” (People v. Collie, supra, 30 Cal.3d
at p. 64; see also People v. Milner, supra, 45 Cal.3d at pp. 251-252.) This
exception was inapplicable here. As explained, the evidence did not establish any
past offense and was not prejudicial. The trial court was not required to instruct
sua sponte on the limited admissibility of the evidence.
F. Asserted erroneous jury instructions — guilt phase
Defendant contends the trial court failed sua sponte to instruct, or
misinstructed, on several lesser included offenses and on other relevant principles,
entitling him to reversal of his convictions for the Clark and Benintende murders.
As explained below, we agree that the trial court erred by giving incomplete
instructions on second degree murder, giving an incorrect instruction on the
principle of concurrence of act and intent, and failing to instruct on the sufficiency
of circumstantial evidence, but conclude these errors were harmless. We find
defendant’s additional claims of prejudicial instructional error at the guilt phase to
be without merit.
1. Adequacy of the record
As a preliminary matter, defendant contends the trial court’s failure to
transcribe the in-chambers discussions of guilt phase jury instructions has deprived
him of meaningful appellate review of his jury instruction claims. We disagree.
It appears that all discussions of guilt phase jury instructions took place at
an unreported conference on March 14, 1988. We thus have no transcript of jury
instruction discussions. A summary of the conference, however, was placed on
the record. As relevant here, the trial court stated: (1) defense counsel had
requested CALJIC No. 8.75 (jury may return partial verdict — homicide),15 which
the trial court had refused; (2) counsel agreed instructions on involuntary
manslaughter need not be given; and (3) defense counsel “has no Geiger counts;
that is to say, no lesser and includeds that fall within the purview of People versus
Geiger at this time.” When the trial court asked defense counsel whether the
summary was correct, counsel stated: “True and accurate, your Honor. Well
stated.” In addition, the clerk’s transcript contains copies of all the printed
instructions requested but not given. The only instruction requested in writing by
defendant and not given was CALJIC No. 8.75.
Defense counsel did not object to the trial court conducting discussions of
proposed jury instructions off the record. When the trial court later went back on
the record to summarize the proceedings that had occurred in chambers, defense
counsel agreed the court’s summary was “true and accurate.” Counsel’s failure to
object to the procedure forfeits any claim that the record is inadequate. (People v.
Gaston, supra, 20 Cal.3d at p. 485; see also People v. Cummings, supra, 4 Cal.4th
at p. 1333, fn. 70; People v. Mickey, supra, 54 Cal.3d at p. 667.) The case of
People v. Young (2005) 34 Cal.4th 1149, upon which defendant relies, is not
controlling. There, we presumed instructional errors were preserved for review
because portions of the record of jury instruction discussions were missing, with
no indication that the lapse was attributable to defendant or his counsel. Here, by
contrast, defendant’s counsel did not object to having jury instruction discussions
Unless otherwise noted, all references to CALJIC are to the versions
applicable at the time of defendant’s trial in 1988, drawn from the fourth edition
published in 1979, along with any pertinent revisions.
off the record. Moreover, as shown above, the record allows us to determine
which jury instructions were requested and which objections were made. It
therefore is adequate to permit meaningful review of defendant’s jury instruction
2. Failure to instruct on the definition of second degree murder with
a. Error in omitting CALJIC No. 8.30
We agree with defendant’s contention that the trial court erred in failing to
instruct the jury on the definition of second degree murder committed with express
malice. Regarding the Clark charge, the court gave the jury the options of
convicting defendant of first degree murder, second degree murder, or voluntary
manslaughter. It instructed the jury on the elements of murder and on the
principle that murder may be committed with either express or implied malice.
(CALJIC Nos. 8.10 and 8.11.) It explained that first degree murder is a willful,
deliberate, and premeditated killing. (CALJIC No. 8.20.) It also instructed that
“[m]urder of the second degree is also the unlawful killing of a human being as a
direct, causal result of an intentional act involving a high degree of probability that
it will result in death, which act is done for a base, antisocial purpose and with
wanton disregard for human life, or the natural consequences of which are
dangerous to life, which act was deliberately performed by a person who knows
that his conduct endangers the life of another, and who acts with conscious
disregard for human life.” (See CALJIC No. 8.31.) It did not, however, instruct
the jury that second degree murder also occurs when “there is manifested an
intention unlawfully to kill a human being but the evidence is insufficient to
establish deliberation and premeditation.” (CALJIC No. 8.30.) The prosecution
initially requested this instruction, but withdrew that request. We agree the trial
court erred by omitting an instruction that second degree murder includes an
intentional but unpremeditated murder.
“The trial court is obligated to instruct the jury on all general principles of
law relevant to the issues raised by the evidence, whether or not the defendant
makes a formal request.” (People v. Blair (2005) 36 Cal.4th 686, 744; see People
v. Breverman (1998) 19 Cal.4th 142, 154 [sua sponte duty]; People v. Flannel
(1979) 25 Cal.3d 668, 684 [duty upon request].) “That obligation encompasses
instructions on lesser included offenses if there is evidence that, if accepted by the
trier of fact, would absolve the defendant of guilt of the greater offense but not of
the lesser.” (People v. Blair, supra, 36 Cal.4th at p. 745; People v. Memro (1995)
11 Cal.4th 786, 871.) Although defendant’s jury was instructed on second degree
murder with implied malice, the trial court had a duty to instruct on “all theories of
a lesser included offense which find substantial support in the evidence.” People v.
Breverman, supra, 19 Cal.4th at p. 162 [defendant was entitled to instruction on
voluntary manslaughter committed as a result of heat of passion, in addition to
instruction on voluntary manslaughter arising from an honest but unreasonable
belief in the need for self defense].)
Defendant’s own testimony provided sufficient evidence from which the
jury could conclude the killing was not premeditated. Defendant testified that
when he killed Clark, he was not making any calculated judgment or weighing
considerations for and against killing her; rather he felt only fear and pulled the
trigger without thinking. Defendant’s experts likewise testified defendant did not
premeditate or deliberate in the killing of Clark. In Dr. Glaser’s opinion, at the
time of the killing defendant was overwhelmed with emotion stemming from his
sexual dysfunction and “the volley of expletives that followed such dysfunction
from Miss Clark,” and “the actual shooting and killing was an impulsive heat of
passion event” that was done without planning. Dr. Glaser believed that in this
emotional state, defendant was incapable of premeditating and deliberating. Dr.
Bird agreed the killing of Clark was an impulsive, emotional act of passion and
fear, and opined there was no “thoughtful advance planning or anticipation of
doing what he did,” no reasoning or thinking, and no weighing of consequences.
In Dr. Franz’s opinion as well, defendant killed Clark in a very emotional, anxious
state in which he did not have the “skills available” to premeditate and deliberate.
The killing was “not a weighing or a balancing, but simply a defense mechanism
to protect himself.”
The jury could have concluded the emotional, impulsive nature of the
killing precluded a finding of premeditation and deliberation but that defendant
nevertheless intended to kill. Based on this evidence, the trial court should have
given CALJIC 8.30. Indeed, the trial court did include references to both express
malice and implied malice in the definition of murder. Although it explained that
murder with implied malice is “also” second degree murder, and that implied
malice does not require an intent to kill, it failed to explain that a murder
committed with express malice could constitute second degree murder. The
omission of CALJIC 8.30 created an obvious gap in the instructions that was not
filled by any of the other instructions given.
The erroneous failure to instruct on a lesser included offense generally is
subject to harmless error review under the standard of People v. Watson (1956) 46
Cal.2d 818, at pages 836-837.16 Reversal is required only if it is reasonably
There is an exception to this rule when the failure to instruct on a lesser
included offense rises to the level of a federal constitutional violation because it
renders the capital verdict unreliable under the Eighth Amendment. (See Beck v.
Alabama (1980) 447 U.S. 625.) There also may be an exception when the error
deprives the defendant of the federal due process right to present a complete
(footnote continued on next page)
probable the jury would have returned a different verdict absent the error or errors
complained of. (People v. Breverman, supra, 19 Cal.4th at pp. 165-179; see also
People v. Seaton (2001) 26 Cal.4th 598, 667.)
In the present case, it does not appear reasonably probable that the jury
would have elected to convict defendant of second degree murder had it been
instructed that an intentional but unpremeditated murder was a second degree
murder. Defendant’s jury was clearly instructed that first degree murder required
not only an intentional killing, but one that is deliberate and premeditated.
(CALJIC No. 8.20.) It also was told “[i]f you are convinced beyond a reasonable
doubt that the crime of murder has been committed by the defendant, but you have
a reasonable doubt whether that murder was of the first or of the second degree,
then you have to give the defendant the benefit of that doubt and return a verdict
affixing the murder as of the second degree.” (See CALJIC No. 8.71.)
Defendant’s claim that the error was prejudicial is premised upon the supposition
that the jury may have concluded the killing was intentional but not premeditated,
yet convicted defendant of first degree murder despite the clear instruction that
first degree murder required premeditation, because the instructions permitted no
viable option for a conviction on a lesser offense. We disagree, for two reasons.
First, if the jury found that defendant shot Clark several times with the
intent to kill her, we see no reasonable probability it would have believed that his
conduct and state of mind did not fit the definition of second degree murder
committed with implied malice, as it was explained to them. The jury was told, in
the language of CALJIC No. 8.31, that second degree murder is a killing that
(footnote continued from previous page)
defense. (See California v. Trombetta (1984) 467 U.S. 479, 485.) We address
these exceptions below.
results from “an intentional act involving a high degree of probability that it will
result in death, which act is done for a base, antisocial purpose and with wanton
disregard for human life,” or an act “the natural consequences of which are
dangerous to life, which act was deliberately performed by a person who knows
that his conduct endangers the life of another, and who acts with conscious
disregard for human life.” Defendant’s act of shooting Clark certainly could be
characterized as one “involving a high degree of probability that it will result in
death” or “the natural consequences of which are dangerous to life.” Nothing in
the instructions precluded the logical conclusion that if defendant intended to kill,
he acted with “wanton disregard for life” or knew “that his conduct endangered
the life of another” and acted “with conscious disregard for human life.” Thus, the
instructions, reasonably understood, did not preclude a finding of second degree
murder if the jury believed the killing was intentional. (Cf. United States v.
McCullah (10th Cir. 1996) 76 F.3d 1087, 1111 -1112 [holding two aggravating
factors in the federal death penalty statute are duplicative because “[a]ny
intentional conduct aimed at producing death is by definition conduct done with
knowledge of grave risk of death”].)
We have stated that implied malice and intent to kill cannot coexist.
(People v. Visciotti (1992) 2 Cal.4th 1, 58; People v. Murtishaw (1981) 29 Cal.3d
733, 764-765.) This statement was made in the context of issues raised when
instructions are given on implied malice and the offense ― such as attempted
murder or assault with the intent to kill ― requires the specific intent to kill. (See
also People v. Lee (1987) 43 Cal.3d 666, 673-674.) In the present context,
however, the issue is not whether instructions on implied malice might have
caused the jury to convict defendant without the required finding of intent to kill,
but instead whether instructions on implied malice would have prevented the jury
from convicting defendant of second degree murder if it did find intent to kill.
Nothing in the instructions told the jury that an intentional killing precluded a
finding of implied malice. Rather, the jury was instructed that when implied
malice is established, “it is not necessary to establish that a defendant intended that
his act would result in a death of a human being.” In other words, the jury would
have understood the instruction to indicate that intent to kill was sufficient to
establish implied malice, although such intent was not required.
Nothing in the arguments of the parties would have created the impression
that the jury could not return a verdict of second degree murder if it found the
killing was intentional but not premeditated. The prosecutor argued the murder of
Benintende was second degree rather than first degree murder because “there’s no
question there was malice, that intent was there,” but it was not clear whether
defendant had “adequate time” to premeditate and deliberate. The prosecutor thus
highlighted premeditation and deliberation as the critical factor distinguishing first
and second degree murder, and indicated that malice without premeditation and
deliberation would establish second degree murder. In addition, in discussing the
second count involving Benintende, the prosecutor clearly stated second degree
murder is “the unlawful killing of a human being with malice aforethought when
there is manifested an intention unlawfully to kill a human being but the evidence
is insufficient to establish deliberation and premeditation.” She thus provided the
jury with the definition of express malice second degree murder lacking in the
instructions. Although the arguments of counsel cannot substitute for correct
instructions from the court (Carter v. Kentucky (1981) 450 U.S. 288, 304), the
arguments here support our conclusion that the jury was not misled (see People v.
Fudge (1994) 7 Cal.4th 1075, 1111).
Second, even assuming the jury did not believe that an intentional killing
could be a second degree murder, we find it unlikely the jury concluded the killing
was intentional but not premeditated. In determining whether a failure to instruct
on a lesser included offense was prejudicial, an appellate court may consider
“whether the evidence supporting the existing judgment is so relatively strong, and
the evidence supporting a different outcome is so comparatively weak, that there is
no reasonable probability the error of which the defendant complains affected the
result.” (People v. Breverman, supra, 19 Cal.4th at p. 177; see also People v.
Sakarias (2000) 22 Cal.4th 596, 621 [error harmless when evidence supporting
lesser offense was weak].) Here, the evidence supporting the jury’s verdict of
guilt of first degree premeditated murder was relatively strong. In his confession,
defendant said he killed Clark to prevent her from reporting him. Defendant said
that after he shot Clark the second time, “she ran up the road and I realized I
was — if she turned me in I was going to be arrested and go to jail, so I shot her
four more times.” Later, defendant said “I knew she couldn’t testify against me” if
she was dead, and “that was the bottom line.” Defendant had time to contemplate
his course of action; he had to pull up his pants and then get out of his truck to
pursue Clark after he shot her the first time. Defendant’s account of the events
was strong evidence establishing that he “weigh[ed] and consider[ed] the question
of killing and the reasons for and against such a choice and, having in mind the
consequences,” decided to kill Clark. (CALJIC No. 8.20.) It also was strong
evidence demonstrating that the killing was not impulsive or emotional, but rather
a calculated decision made only after Clark threatened to make a report and
defendant had adequate time to contemplate the consequences of allowing her to
live and be able to report him.
Moreover, the physical evidence corroborated defendant’s confession. For
example, the pattern of gunshot wounds on Clark’s body matched the description
of the killings in defendant’s confession. The pathologist testified Clark had one
gunshot entry wound on the right side of the ribcage, the bullet passing through
her body and lodging on the left side of her torso; one entry wound to her back;
and four wounds more or less to the front of her torso, two of which had entered
the body and two of which were graze wounds or abrasions. The jury could have
inferred those wounds corresponded to the shots defendant confessed to having
fired: one shot in the cab of the truck after Clark had been on her knees orally
copulating him, one shot while Clark was running around in front of the truck’s
headlights (the only time she could have been shot in the back), and four shots
while Clark was leaning against the embankment facing defendant.
By contrast, the evidence suggesting defendant did not premeditate and
deliberate came largely from defendant and his experts and was comparatively
weak. The experts based their opinions in large part on the account of the Clark
killing described in defendant’s sodium amytal interview conducted 10 months
after the crime. Thus, in order to credit defendant’s expert testimony on his state
of mind, the jurors would have had to conclude that the account of the murders
given by defendant in his trial testimony, which was based on his sodium amytal
interview, was more accurate than the confession he made a few days after the
crime occurred. We do not believe it is reasonably probable the jury so concluded.
At trial, defendant stated he shot Clark once as she was walking toward him,
pointing her finger; there was a “brief second or two” when Clark “backed up”
into a canal bank, and defendant immediately shot her five more times.
Defendant’s testimony did not explain why Clark had a gunshot wound going
from the right side of her torso to the left, as well as an entry wound in her back.
If defendant’s testimony was accurate, one would expect all of the wounds to have
been to the front of her torso.
Moreover, the defense claimed that, until his memory was revived in the
amytal interview, defendant could not remember anything that happened after he
pushed Clark out of the truck. The defense further claimed defendant, in a suicidal
state and mindful of the legal requirements for various offenses, concocted the
confession to ensure he would be convicted of capital murder. That theory did not
explain how defendant was able to confess to details — such as seeing blood on
Clark’s right ribcage when she was in front of the headlights — that could have
been known only to a person who consciously witnessed the shooting. Further, in
his confession defendant lied about how he obtained the murder weapon, denied
killing Benintende, and claimed he first shot Clark accidentally. Those statements
undermine the claim that his confession was an attempt at “legal suicide.”17 In
sum, given the relative strength of the evidence of premeditation and the relative
weakness of the evidence to the contrary, we do not find it reasonably probable
that had the jury been accurately instructed, it would have concluded defendant
intended to kill Clark but did not premeditate or deliberate.
c. Federal constitutional claim
Defendant contends that because the instruction on the express malice form
of second degree murder embodied the defense theory of the case, the trial court’s
instructional failure deprived him of his right to present a complete defense
guaranteed by the Fourteenth Amendment to the United States Constitution.
Defendant relies on cases in which federal courts have held that a trial court’s
failure to give a requested instruction (whether on a lesser included offense, or on
some other subject) embodying the defense theory of the case and around which
the defendant had built his or her defense, violated the defendant’s due process
right to present a complete defense. (Clark v. Brown (9th Cir. 2006) 442 F.3d 708,
713-718 [instruction on felony-murder special circumstance]; Conde v. Henry (9th
Defendant argues that if his confession related a correct account of the
events and he first shot Clark inside the truck, blood would have been found there,
but none was. Defendant, however, had time to clean up any blood in the few
days between the commission of that crime and his arrest.
Cir. 2000) 198 F.3d 734, 739-740 [instruction on simple kidnapping as lesser
included offense of kidnapping for robbery]; United States v. Monger (6th Cir.
1999) 185 F.3d 574, 576-577 [instruction on lesser included offense]; see also
Bradley v. Duncan (9th Cir. 2002) 315 F.3d 1091, 1098-1099 [instruction on
defense of entrapment].)
In these cases, unlike the present one, the instruction at issue was requested
by the defense. The cases do not support the proposition that a trial court’s failure
to instruct on a lesser included offense sua sponte denies due process. Further,
nothing in the record suggests the trial court would not have given the express
malice second degree murder instruction had the defense asked for it. Nor can it
be said that the omitted instruction “embodied the defense theory of the case.”
Rather, in closing argument the only lesser-included-offense verdict that defense
counsel asked the jury to return was manslaughter. Although the defense
presented evidence of lack of premeditation and deliberation and argued the
prosecution’s evidence did not support a finding of premeditation, defense counsel
did not ask the jury to return a verdict of second degree murder.18 Because
defendant was allowed to present the defense he chose, followed by jury
instructions he agreed to, he was not denied due process by being deprived of the
opportunity to present a complete defense.
The closest defense counsel came to arguing for a verdict of second degree
murder was to say “if you feel the killing was done in a state of emotion, we are
not talking about first degree murder and we are probably not even talking about
instruction regarding concurrence of act and specific
We agree with defendant that the instruction given regarding the
concurrence of act and specific intent was erroneous. The trial court gave a
modified concurrence instruction, CALJIC No. 3.31, stating: “In each of the
crimes charged in counts one and two and in the crime of voluntary manslaughter
there must exist a union or joint operation of act or conduct and a certain specific
intent in the mind of the perpetrator, and unless such specific intent exists the
crime to which it relates is not committed. [¶] The specific intent required is
included in the definitions of the crimes charged. However, the crime of murder
requires the specific intent to unlawfully kill a human being, and the crime of
voluntary manslaughter requires the specific intent to unlawfully kill a human
being.” As the Attorney General concedes, the concurrence instruction was
erroneous because implied malice second degree murder, a form of murder, does
not require the specific intent to kill.
Defendant argues that the erroneous concurrence instruction was prejudicial
in several different ways. As explained below, we find the error to be harmless.
a. Effect on the Clark count
The error in the concurrence instruction did not directly affect the jury’s
first degree murder verdict on the Clark count. The concurrence instruction, as it
related to first degree premeditated murder, was correct, for that crime does
require a specific intent to kill. Moreover, the premeditated murder instruction
itself informed the jury of the concurrence requirement for that offense. (CALJIC
No. 8.20; People v. Rodrigues (1994) 8 Cal.4th 1060, 1142-1143.)
Nevertheless, defendant argues, first, that the erroneous concurrence
instruction was prejudicial in relation to the Clark count because it exacerbated the
erroneous absence of an instruction on express malice second degree murder
(discussed above). The concurrence instruction, which stated that all murder
required an intentional killing, conflicted with the implied malice second degree
murder instruction. CALJIC No. 8.31 stated: “When the killing is the direct result
of [an act performed with implied malice], it is not necessary to establish that the
defendant intended that his act would result in the death of a human being.”
Defendant contends that in light of the conflict between these instructions on the
mental state required for implied malice second degree murder, it is likely the jury
ignored the implied malice second degree murder instructions entirely and that
thus (contrary to our conclusion above) it did not view second degree implied
malice murder as a viable option for an intentional, unpremeditated murder.
We disagree. When reviewing ambiguous instructions, we inquire whether
the jury was “reasonably likely” to have construed them in a manner that violates
the defendant’s rights. (Cf. Estelle v. McGuire (1991) 502 U.S. 62, 72.) Applying
the same standard to the conflicting instructions at issue here, we conclude it is not
reasonably likely the jury determined the implied malice second degree murder
instructions meant nothing at all. The jury specifically was instructed that the
Benintende count could result in a conviction no greater than second degree
murder, and it convicted defendant of second degree murder on that count. The
jury must have applied the implied malice second degree murder instructions to
reach that verdict. The jury’s findings refute defendant’s contention that the jury
simply ignored the instructions.
Rather, we believe it is reasonably likely the jury, if it confronted the
conflict between the two instructions, would have concluded that one instruction
prevailed over the other. If the jury concluded the specific-intent-to-kill
instruction prevailed over the implied malice instruction, defendant could not have
been prejudiced. Presuming, as defendant’s argument does, that the jury found
defendant intended to kill Clark, the instruction fit the facts as the jury found them.
Likewise, if the jury concluded the language in the implied malice instruction
stating that intent to kill was not necessary prevailed over the concurrence
instruction, defendant still was not prejudiced. As explained above, the implied
malice instruction did not preclude a second degree murder conviction based on
intent to kill.19
Second, defendant contends the conflicting instructions were prejudicial in
relation to the Clark count because they could have caused the jurors to believe
there was no difference between first degree premeditated murder and second
degree murder, thus inviting them to “impose guilt [for the Clark murder]
randomly rather than on the basis of a meaningful distinction between the crimes.”
(United States v. Lesina (9th Cir. 1987) 833 F.2d 156, 158-159.) We disagree.
Even assuming the jurors would have believed implied malice second degree
murder requires the specific intent to kill, the instructions on first degree
premeditated murder required more: an intent to kill formed after premeditation
and deliberation and a weighing of considerations for and against killing. Nothing
in the implied malice murder instructions, even with an intent-to-kill requirement
superimposed upon them, required anything close to that heightened mental
In the alternative, defendant asserts it was error to instruct at all on implied
malice second degree murder in relation to the Clark killing, because no facts
supported such a theory of murder. (See People v. Guiton (1993) 4 Cal.4th 1116,
1129-1130.) We disagree. Defendant shot Clark six times at close range. These
facts support a finding of at least implied malice.
Defendant contends the failure to instruct on express malice second degree
murder coupled with the conflicting instructions on the mental state for implied
malice murder left the jury without any viable alternative to a verdict of first
degree premeditated murder for the Clark count, in violation of the Eighth
Amendment to the United States Constitution as interpreted in Beck v. Alabama,
supra, 447 U.S. 625. In Beck, the United States Supreme Court held a sentence of
(footnote continued on next page)
b. Effect on the Benintende count
As to the Benintende count, defendant claims that because the concurrence
instruction referred only to the mental state of intent to kill, the court failed to
instruct the jury that the mental state required for implied malice murder —
conscious disregard for life — must exist at the same time as the acts causing
death. This asserted error was one of state law, subject to the Watson standard of
harmless error. (See People v. Alvarez (1994) 14 Cal.4th 155, 219-220 [applying
Watson “reasonable probability” standard to error in failing to instruct on
concurrence requirement for murder].) Any error was harmless. The instructions
on implied malice and second degree murder on an implied malice theory
“substantially covered the concurrence” of act and mental state required for
implied malice murder. (People v. Alvarez, supra, 14 Cal.4th at p. 220.) The
instruction defining malice aforethought told the jury that “malice is implied when
the killing results from an intentional act involving a high degree of probability
that it will result in death, which act is done for a base, antisocial purpose and with
a wanton disregard for human life, or when the killing results from an intentional
(footnote continued from previous page)
death may not be imposed, consistent with the Eighth and Fourteenth
Amendments, when the jury was not permitted to consider a verdict of guilt of a
lesser included noncapital offense supported by the evidence. (Beck v. Alabama,
supra, 447 U.S. at p. 627.) In Schad v. Arizona (1991) 501 U.S. 624, at pages
645-648, the high court clarified the Beck rule, holding the Eighth Amendment is
satisfied if a capital jury is presented with any one applicable lesser included
noncapital offense; the jury need not be instructed on every applicable lesser
included offense. (See People v. Breverman, supra, 19 Cal.4th at p. 167.)
Here, we have concluded the jury properly was instructed on implied
malice second degree murder, and defendant concedes it properly was instructed
on voluntary manslaughter under a heat-of-passion theory. Accordingly, there was
at least one applicable lesser included offense presented to the jury as to the Clark
count. No Beck error occurred.
act, the natural consequences of which are dangerous to life, which act was
deliberately performed by a person who knows that his conduct endangers the life
of another and who acts with conscious disregard for life.” The implied malice
murder instruction contained similar wording. The italicized language in these
instructions adequately informed the jury of the concurrence requirement.21 (See
People v. Cleaves (1991) 229 Cal.App.3d 367, 381; see also People v. Rodrigues,
supra, 8 Cal.4th at pp. 1142-1143.)
Finally, the conflict between the implied malice instruction and the
concurrence instruction was harmless as to the Benintende count. At worst, the
erroneous concurrence instruction might have led the jury to believe it had to find
a mental state more culpable than that required for second degree murder — that
is, specific intent to kill rather than mere implied malice. Because the instruction
at most could have been understood as imposing a burden on the prosecution more
onerous than the law required, defendant could not have been prejudiced under
4. Notes from the jury
Defendant points to the jurors’ questions during deliberations as support for
his argument that he was prejudiced by the asserted instructional errors discussed
above. He also cites the court’s responses to those questions as additional error
requiring reversal. We reject both contentions.
During deliberations, the jury sent the trial court a note seeking, in relevant
part, “definitions of the degrees of murder.” In response, with the agreement of
Such error does not require reversal without an inquiry into prejudice.
People v. Cummings, supra, 4 Cal.4th at pages 1311-1315, upon which defendant
relies, involved a complete failure to instruct on four of the five elements of
robbery. No similar instructional failure occurred here.
both defense counsel and the prosecutor, the court gave the jury written copies of
all of the instructions it had given orally ⎯ those related solely to murder, as well
as those related to all other guilt phase issues.
Defendant contends that the jurors’ question demonstrates they were
confused about the meaning of the degrees of murder, supporting his argument
that errors in the concurrence instruction and the second degree murder instruction
were prejudicial. We disagree. That the jurors requested “definitions of the
degrees of murder” does not demonstrate they were confused; rather, given the
length and complexity of the instructions, the jurors simply may have failed to
recall specifically and completely all the instructions that had been read to them.
The trial court responded by giving the jurors the instructions in written form,
which apparently satisfied them.22
Defendant asserts the trial court’s response to the jury’s question also
violated his rights under section 1138.23 Defendant contends that, rather than
merely furnishing the jury with written copies of the instructions it already had
The trial court read the definition of express malice in CALJIC No. 8.11 to
the jury, but crossed it out on the written version given to the jury. When the trial
court gave the jury the written instructions, it told them: “[P]lease disregard any
deleted part of the instructions and not speculate as to what was or is the reason for
its deletion.” The crossing out of the definition of express malice from the written
instructions was not prejudicial error, in light of our conclusion, above, that the
instructions on implied malice second degree murder (CALJIC No. 8.31)
permitted the jurors to find defendant guilty of second degree murder even if they
concluded he intended to kill Clark.
Section 1138 states: “After the jury have retired for deliberation, if there be
any disagreement between them as to the testimony, or if they desire to be
informed on any point of law arising in the case, they must require the officer to
conduct them into court. Upon being brought into court, the information required
must be given in the presence of, or after notice to, the prosecuting attorney, and
the defendant or his counsel, or after they have been called.”
given orally, the trial court was obligated to provide the instruction on express
malice second degree murder it had failed to provide originally. This argument is
essentially a restatement of the argument previously discussed, that the trial court
erred in omitting the instruction on the first occasion. For the same reasons we
noted in finding the original instructional error to be harmless, the repetition of
that error in the written instructions also was harmless.
To the extent defendant contends the trial court, in response to the jury’s
inquiry regarding the “degrees of murder,” should have provided additional
instructions on express malice second degree murder other than the one discussed
above or should have elaborated on the standard instruction, his counsel’s
acquiescence in the trial court’s response forfeits the claim of error on appeal.
(People v. Delgado (1993) 5 Cal.4th 312, 331; People v. Medina (1990) 51 Cal.3d
870, 902.) In any event, defendant does not identify any respect in which the
standard instruction could have been improved upon. His claim of error therefore
must be rejected.24
The clerk’ transcript contains another jury note inquiring “may we have the
legal definitions of the crimes being charged.” Defendant asserts the trial court
violated section 1138 by not responding to this second note. Unlike the other jury
notes in the clerk’s transcript, the second note is not marked with the date and
time, and there is no indication that counsel or the trial court ever saw or discussed
it. There is no evidence in the record indicating that the note ever was submitted
to the trial court, or if it was, when that occurred. For all we can determine, the
Our rejection here of defendant’s claims based upon section 1138 extends,
for the same reasons, to any claim by him that the trial court, in response to the
jury’s question, failed to instruct or reinstruct adequately on other aspects of
note may have been a rejected first draft of the note considered by the court. We
may not predicate error or prejudice on the bare existence of the second note.
Defendant contends his trial counsel was not informed of the existence of
the second note during trial, and defendant was unaware of it until late 1998 when
he read the brief filed by respondent in this court.25 He argues that the trial court’s
failure to inform defense counsel of the note violated section 1138 and denied him
the assistance of counsel in violation of the Sixth Amendment to the United States
Constitution. (See, e.g., People v. Horton (1995) 11 Cal.4th 1068, 1136-1137;
People v. Hawthorne (1992) 4 Cal.4th 43, 69.) On this record, we are unable to
verify defendant’s assertion that trial counsel was not informed of the existence of
the second note. Accordingly, because error has not been affirmatively shown
(Denham v. Superior Court (1970) 2 Cal.3d 557, 564), defendant’s claims under
section 1138 and the Sixth Amendment must fail.
5. Failure to instruct on provocation
In a related contention, defendant asserts the trial court erred in failing to
instruct on its own motion that provocation inadequate to reduce a killing from
murder to manslaughter nonetheless may suffice to negate premeditation and
deliberation, thus reducing the crime to second degree murder. (See CALJIC No.
8.73; see also People v. Valentine (1946) 28 Cal.2d 121, 132.) CALJIC No. 8.73
explains this concept.26 The Attorney General contends that CALJIC No. 8.73 is a
Defendant’s counsel did not receive a copy of the supplemental clerk’s
transcript containing the note until June of 1999.
CALJIC No. 8.73 provides: “When the evidence shows the existence of
provocation that played a part in inducing the unlawful killing of a human being,
but also shows that such provocation was not such as to reduce the homicide to
manslaughter, and you find that the killing was murder, you may consider the
evidence of provocation for such bearing as it may have on the question of
whether the murder was of the first or second degree.”
“pinpoint” instruction relating particular evidence to an element of the offense,
and therefore need not be given on the court’s own motion. We agree.
We have recently stated, albeit in dicta, that CALJIC No. 8.73 is a pinpoint
instruction. (People v. Ward (2005) 36 Cal.4th 186, 214-215 [where CALJIC No.
8.73 was requested and trial court agreed to give it but for some reason failed to do
so, there was no error because no evidence supported the giving of the requested
instruction]; People v. Mayfield (1997) 14 Cal.4th 668, 778) [on appeal, defendant
could not complain that CALJIC No. 8.73, which was given, was ambiguous or
otherwise inadequate when he failed to request any modifications at trial].) This
conclusion is supported by People v. Saille (1991) 54 Cal.3d 1103, a murder case
in which we held the trial court was not required to instruct on its own motion that
the jury should consider the defendant’s voluntary intoxication in determining
whether defendant premeditated and deliberated. (Id. at pp. 1117-1120.) We
noted that because the defense of diminished capacity had been abolished,
“[i]ntoxication is now relevant only to the extent that it bears on the question of
whether the defendant actually had the requisite specific mental state. Thus, it is
now more like  ‘pinpoint,’ instructions . . . to which a defendant is entitled upon
request. Such instructions relate particular facts to a legal issue in the case or
‘pinpoint’ the crux of a defendant’s case . . . . They are required to be given upon
request when there is evidence supportive of the theory, but they are not required
to be given sua sponte.” (People v. Saille, supra, 54 Cal.3d at p. 1119; see also id.
at p. 1120 [instruction relating evidence of intoxication to premeditation and
deliberation does not involve a general principle of law as that term is used in
cases imposing a sua sponte duty to instruct].)
Similarly, under the principles expressed in CALJIC No. 8.73, provocation
is relevant only to the extent it “bears on the question” whether defendant
premeditated and deliberated. (People v. Saille, supra, 54 Cal.3d at p. 1119.)
Because CALJIC No. 8.73 relates the evidence of provocation to the specific legal
issue of premeditation and deliberation, it is a “pinpoint” instruction as that term
was defined in People v. Saille, supra, 54 Cal.3d at pages 1119-1120, and need not
be given on the court’s own motion. (Accord, People v. Middleton (1997) 52
Cal.App.4th 19, 30-33 [CALJIC No. 8.73 is a pinpoint instruction that need not be
given on the court’s own motion]; People v. Lee (1994) 28 Cal.App.4th 1724,
1732-1734 [same]; Comment to CALJIC No. 8.73 (6th ed. 1998) (July 2002 rev.)
[no sua sponte duty to instruct]; Bench notes to CALCRIM No. 522 (1st ed. 2005)
[no sua sponte duty to instruct with CALCRIM analogue to CALJIC No. 8.73].)
Defendant relies on People v. Johnson (1993) 6 Cal.4th 1. There, we stated
in dictum that “a sua sponte instruction on provocation and second degree murder
must be given ‘where the evidence of provocation would justify a jury
determination that the accused had formed the intent to kill as a direct response to
the provocation and had acted immediately’ to carry it out.” (Id. at pp. 42-43,
quoting People v. Wickersham (1982) 32 Cal.3d 307, 329; see also People v. Perez
(1992) 2 Cal.4th 1117, 1129 [no sua sponte duty to instruct pursuant to CALJIC
No. 8.73 where no evidence supported the instruction]; but see People v. Steele
(2002) 27 Cal.4th 1230, 1250 [noting inconsistency between Johnson and Perez
on the one hand, and Mayfield on the other].)
Johnson cited People v. Wickersham, supra, 32 Cal.3d 307, for the
proposition that the court has a sua sponte duty to instruct on the principles
contained in CALJIC No. 8.73. Wickersham, however, held only that an
instruction on second degree murder must be given when the evidence supports
the theory that the defendant killed in response to provocation and thus without
premeditation and deliberation. Wickersham did not state that the trial court must
explain the principles spelled out in CALJIC No. 8.73. Accordingly, Johnson’s
reliance on Wickersham for the proposition that CALJIC No. 8.73 must be given
on the court’s own motion was erroneous. Indeed, in Johnson the trial court had
instructed on second degree murder; thus, Wickersham was inapposite.
Nor is our conclusion inconsistent with People v. Valentine, upon which
CALJIC No. 8.73 is based. There, the defendant killed the victim during an
argument after the victim accused the defendant of trespassing and, according to
the defense, swore at defendant and shoved him. The defendant was convicted of
first degree murder. We reversed based on a host of instructional errors. (People
v. Valentine, supra, 28 Cal.2d at pp. 137-144.) We also suggested the instructions
on heat-of-passion voluntary manslaughter were misleading because the jury
might have understood them as implying that provocation that was inadequate to
reduce the murder to manslaughter was irrelevant to any issue. But in that case,
the court also had instructed the jury erroneously that: (a) if the defendant
possessed the specific intent to kill, the killing was first degree murder (thus
blurring the distinction between first and second degree murder); and (b) the
defendant bore the burden of raising a reasonable doubt as to the degree of the
murder. (People v. Valentine, supra, 28 Cal.2d at pp. 130-134.)
Valentine does not stand for the general proposition that the standard heat-
of-passion voluntary manslaughter instructions are always misleading in a
homicide case where the jury is instructed on premeditated murder and there is
evidence of provocation, or that such manslaughter instructions always must be
accompanied by instructions on the principle of inadequate provocation set out in
CALJIC No. 8.73. In the absence of instructional errors such as were present in
Valentine, the standard manslaughter instruction is not misleading, because the
jury is told that premeditation and deliberation is the factor distinguishing first and
second degree murder. Further, the manslaughter instruction does not preclude the
defense from arguing that provocation played a role in preventing the defendant
from premeditating and deliberating; nor does it preclude the jury from giving
weight to any evidence of provocation in determining whether premeditation
existed. For the foregoing reasons, we hold that CALJIC No. 8.73 is a pinpoint
instruction that need not be given on the court’s own motion.
6. Failure to instruct on the relationship of mental disease or defect to
premeditation and deliberation
The jury was instructed pursuant to a modified version of former CALJIC
No. 3.36 (now CALJIC No. 3.32), as follows: “Evidence has been received
regarding a mental disease or mental defect or mental disorder of the defendant at
the time of the offenses charged in counts one and two and in the lesser included
offense of voluntary manslaughter. You may consider such evidence solely for
the purpose of determining whether or not the defendant actually formed the
mental state which is an element of the crimes charged in the information and the
crime of voluntary manslaughter.” Defendant contends the trial court erred by
failing to identify the specific mental state or states — namely premeditation and
deliberation — to which defendant’s mental health evidence was relevant.
Defendant points out that the use note accompanying the standard instruction
directs the trial judge to specify the mental state or intent required in each specific
count. (Use Note to CALJIC No. 3.36 (1987 rev.) (4th ed. 1979).) He contends
the trial court exacerbated the error by failing to give CALJIC No. 3.31.5, the
instruction on concurrence of act and mental state, which would have specified
that the necessary mental state required for first degree murder was premeditation
and deliberation. He argues the instructions as a whole would have led the jury to
believe it could not consider the defense mental health evidence in determining
whether the killing of Clark was premeditated and deliberate.27
Defendant further asserts the failure to give CALJIC No. 3.31.5 was itself
error, but he does not contend the error standing alone warrants reversal.
disagree.28 We previously have rejected claims that a trial court
erroneously failed to identify premeditation and deliberation as a mental state to
which evidence of mental disease or defect was relevant, in cases where the trial
court either explained that premeditation and deliberation were mental states
necessary for a conviction of first degree murder (People v. Musselwhite (1998) 17
Cal.4th 1216, 1247-1249; People v. Jones (1991) 53 Cal.3d 1115, 1145) or
instructed that “ ‘the mental state required is included in the definition of the crime
charged’ ” (People v. Smithey (1999) 20 Cal.4th 936, 988). We also have rejected
a similar claim regarding the instruction relating voluntary intoxication to mental
state. (People v. Castillo (1997) 16 Cal.4th 1009, 1014, fn. 2 [pinpoint instruction
relating voluntary intoxication to premeditation and deliberation not required
where jury was fully instructed on first degree premeditated murder and also
instructed that the requisite mental states would be defined “ ‘elsewhere in these
instructions’ ”]). In the foregoing cases, in light of full instructions defining first
degree murder including an explanation of premeditation and deliberation, we
concluded “a reasonable jury would have understood that the requisite mental
states (as set forth in the definitions of the crimes) were the same ‘mental states’
that could be considered in connection with the evidence of defendant’s mental
disease, defect, or disorder.” (People v. Smithey, supra, 20 Cal.4th at p. 989.)
Although, in contrast to the cases cited above, the jury neither was
informed that premeditation and deliberation were mental states, nor told that the
mental state required for each crime was included in the definition of that crime,
We may review this contention under section 1259 even in the absence of
an objection. That statute states in pertinent part: “Upon an appeal taken by the
defendant, . . . the appellate court may . . . review any instruction given, refused or
modified, even though no objection was made thereto in the trial court, if the
substantial rights of the defendant were affected thereby.” (Ibid.)
the instructions as a whole nonetheless adequately informed the jury it could
consider defendant’s evidence of mental disease or defect in deciding whether he
premeditated and deliberated the killing of Clark. As we explained in People v.
Castillo, supra, 16 Cal.4th at page 1017: “Premeditation and deliberation are
clearly mental states; no reasonable juror would assume otherwise. Moreover,
they refer to the quality of the intent to kill.” Similarly here, the instruction on
first degree murder fully explained the concepts of premeditation and deliberation.
The jury would have understood that they are mental states. “By relating [mental
disease or defect] to mental state, the [challenged] instruction necessarily directed
the jury’s attention to evidence of [mental disease or defect] as it related to
premeditation and deliberation.” (People v. Castillo, supra, 16 Cal.4th at p. 1017.)
Moreover, defense counsel’s argument reinforced the notion inherent in the
instructions that premeditation and deliberation are mental states. Several times in
argument, defendant’s counsel equated the concept of mental state with
premeditation and deliberation. Counsel argued the prosecution had to prove
mental state beyond a reasonable doubt, and then asked the jury to consider
whether the prosecution “had proven a state of premeditation and deliberation
beyond a reasonable doubt.” Counsel also asked rhetorically whether defendant
killed Clark “with the high level of mental state of weighing considerations for
and against?” Under all the circumstances, no reasonable juror would have
assumed premeditation and deliberation were not “mental states” as that term was
used in the instruction relating defendant’s evidence of mental disease or defect to
the mental state necessary for the charged crimes. (Cf. People v. Castillo, supra,
16 Cal.4th at p. 1017.)
voluntary manslaughter instruction
Defendant asserts the trial court erred prejudicially in failing to instruct on
its own motion on the lesser included offense of voluntary manslaughter under an
imperfect self defense theory. (See People v. Flannel, supra, 25 Cal.3d at p. 674.)
He contends the error deprived him of rights guaranteed under the United States
Constitution, warranting reversal of his conviction for the Clark murder.
The trial court instructed the jury pursuant to a modified version of CALJIC
No. 8.40 that voluntary manslaughter is “the unlawful killing of a human being
without malice aforethought when there is an intent to kill,” and that “there is no
malice aforethought if the killing occurred upon a sudden quarrel or heat of
passion.” In the written version of CALJIC No. 8.40 given to the jury, the trial
court crossed out the following language explaining imperfect self defense: “there
is no malice aforethought if the killing occurred . . . in the honest but unreasonable
belief in the necessity to defend oneself against imminent peril to life or great
bodily injury.” The trial court gave a similarly modified version of CALJIC No.
8.50 distinguishing murder and manslaughter. It did not give CALJIC No. 5.17,
which further explains the imperfect-self-defense theory of voluntary
People v. Flannel we thus explained the doctrine of imperfect self-
defense: “[a]n honest but unreasonable belief that it is necessary to defend oneself
from imminent peril to life or great bodily injury negates malice aforethought, the
At the time of trial, CALJIC No. 5.17 read in pertinent part: “A person
who kills another person in the honest but unreasonable belief in the necessity to
defend against imminent peril to life or great bodily injury kills unlawfully, but
does not harbor malice aforethought and cannot be found guilty of murder. This
would be so even though a reasonable man in the same situation and knowing the
same facts would not have had the same belief.” (CALJIC No. 5.17 (Jan. 1987
rev.) (4th ed. 1979).)
mental element necessary for murder, so that the chargeable offense is reduced to
manslaughter.” (People v. Flannel, supra, 25 Cal.3d at p. 674, italics omitted; see
also In re Christian S. (1994) 7 Cal.4th 768, 773.) We since have reaffirmed this
doctrine, but have cautioned that it is “narrow” and will apply only when the
defendant has an actual belief in the need for self-defense and only when the
defendant fears immediate harm that “ ‘ “must be instantly dealt with.” ’ ” (In re
Christian S., supra, 7 Cal.4th at p. 783.) We have explained further that imperfect
self-defense is not a true defense; it is rather “a shorthand description” of one form
of the crime of voluntary manslaughter. (People v. Barton (1995) 12 Cal.4th 186,
200.) Thus, a trial court’s duty to instruct on this theory arises “whenever the
evidence is such that a jury could reasonably conclude that the defendant killed the
victim in the unreasonable but good faith belief in having to act in self-defense.”
(People v. Barton, supra, 12 Cal.4th at p. 201.)
Here, there was no substantial evidence from which the jury could have
concluded defendant killed Clark due to an honest but unreasonable belief that he
needed to defend himself from an imminent threat to his life or to his bodily
integrity. Neither defendant nor his experts testified defendant actually believed
he had to kill Clark to defend himself from such an imminent threat. In support of
the instruction, defendant points to his own testimony that when Clark was
walking toward him with her finger pointed at him, he felt “threatened” and
“afraid” and shot her out of a need for “protection.” He also points to his mental
health experts’ testimony that the killing of Clark was an act of “survival.” For
example, Dr. Franz testified the events leading up to the shooting, including
defendant’s failure to perform sexually and Clark’s taunts and physical threats,
caused defendant to react like a frightened, abused child and to fire the gun as “a
defense mechanism to protect himself.” Dr. Bird also explained defendant
associated Clark with his abusive stepmother and shot her “out of fear of not
Contrary to defendant’s contention, we do not read this testimony as
supporting an inference that defendant believed he needed to defend himself from
death or great bodily injury. Rather, Dr. Franz’s and Dr. Bird’s testimony is more
susceptible of the interpretation that defendant feared for his emotional survival
rather than that he feared for his physical survival. For example, Dr. Franz stated
defendant “lost a sense of his body and began to try to protect his essence, his
soul, that last thread that was trying to be moral and solid and sane.” Further,
defendant himself testified only that he felt fear and a need for protection. He did
not state what he feared and certainly never testified he feared his life was in
danger or that he would suffer great bodily injury.
The only testimony suggesting that defendant actually feared for his life
came from Dr. Bird, who acknowledged it is “ridiculous to fear for your own life
when somebody is pointing a finger at you.” That isolated comment did not
constitute substantial evidence — that is, evidence from which a jury composed of
reasonable persons could find (People v. Breverman, supra, 19 Cal.4th at
p. 162) — that defendant (a deputy sheriff armed with a revolver) feared great
bodily injury or death from an unarmed 15-year-old girl. For these reasons, the
trial court did not err in failing to instruct on the doctrine of imperfect self-
8. Failure to instruct on involuntary manslaughter
Defendant asserts the trial court erred in failing to instruct on its own
motion on the lesser included offense of involuntary manslaughter in relation to
count one, the Clark count. Involuntary manslaughter is “the unlawful killing of a
human being without malice aforethought and without an intent to kill.” (CALJIC
No. 8.45 (Jan. 1987 rev.) (4th ed. 1979).) A verdict of involuntary manslaughter is
warranted where the defendant demonstrates “that because of his mental illness
. . . he did not in fact form the intent unlawfully to kill (i.e., did not have malice
aforethought).” (People v. Saille, supra, 54 Cal.3d at p. 1117.) An instruction on
involuntary manslaughter is required whenever there is substantial evidence
indicating the defendant did not actually form the intent to kill. (People v. Webber
(1991) 228 Cal.App.3d 1146, 1162; see People v. Ray (1975) 14 Cal.3d 20, 28-
Assuming the trial court erred in failing to instruct on involuntary
manslaughter, any error was harmless. In addition to being fully instructed on first
degree premeditated murder, the jury also was instructed on the lesser included
offenses of implied malice second degree murder and heat-of-passion voluntary
manslaughter, both of which require higher degrees of culpability than does the
offense of involuntary manslaughter. The jury rejected the lesser options and
found defendant guilty of first degree premeditated murder. Under the
circumstances, there is no reasonable probability that, had the jury been instructed
on involuntary manslaughter, it would have chosen that option.
9. Failure to instruct on the sufficiency of circumstantial evidence
Defendant contends the trial court failed to instruct on the sufficiency of
circumstantial evidence pursuant to CALJIC No. 2.01, an omission that prejudiced
him in relation to the Benintende count.30 The trial court did give CALJIC No.
At the time of trial, CALJIC No. 2.01 provided:
“However, a finding of guilt as to any crime may not be based on
circumstantial evidence unless the proved circumstances are not only
(1) consistent with the theory that the defendant is guilty of the crime, but
(2) cannot be reconciled with any other rational conclusion. [¶] Further, each fact
which is essential to complete a set of circumstances necessary to establish the
(footnote continued on next page)
2.02 on the sufficiency of circumstantial evidence of specific intent or mental
state. An instruction on the principles contained in CALJIC No. 2.01 “must be
given sua sponte when the prosecution substantially relies on circumstantial
evidence to prove guilt. (People v. Wiley (1976) 18 Cal.3d 162, 174 [133
Cal.Rptr. 135, 554 P.2d 881]; People v. Yrigoyen (1955) 45 Cal.2d 46, 49 [286
P.2d 1].)” (People v. Marquez (1992) 1 Cal.4th 553, 577.) “The instruction
should not be given ‘when the problem of inferring guilt from a pattern of
incriminating circumstances is not present.’ ” (People v. Wiley, supra, 18 Cal.3d
at p. 174.)
Here, the prosecution’s case regarding the identity of Benintende’s killer
rested principally on two items of circumstantial evidence ― defendant’s
possession of the murder weapon and his admitted killing of Clark (like
Benintende, a prostitute) a year later. There was no direct evidence linking
defendant to Benintende; no witnesses saw defendant with her and defendant did
not confess to killing her. Accordingly, the trial court erred in failing to instruct
pursuant to CALJIC No. 2.01. The giving of CALJIC No. 2.02 did not cure the
error, for that instruction by its terms applied only to circumstantial evidence of
(footnote continued from previous page)
defendant’s guilt must be proved beyond a reasonable doubt. In other words,
before an inference essential to establish guilt may be found to have been proved
beyond a reasonable doubt, each fact or circumstance upon which such inference
necessarily rests must be proved beyond a reasonable doubt. [¶] Also, if the
circumstantial evidence [as to any particular count] is susceptible of two
reasonable interpretations, one of which points to the defendant’s guilt and the
other to his innocence, it is your duty to adopt that interpretation which points to
the defendant’s innocence, and reject that interpretation which points to his guilt.
[¶] If, on the other hand, one interpretation of such evidence appears to you to be
reasonable and the other interpretation to be unreasonable, it would be your duty
to accept the reasonable interpretation and to reject the unreasonable.”
specific intent or mental state.31 The jury first had to determine the identity of
Benintende’s killer, and CALJIC No. 2.02 did not speak to that issue.
The error, however, was harmless. Because CALJIC No. 2.02 was given,
the failure to give CALJIC No. 2.01 could have affected only the issue of identity.
On that issue, the evidence supporting the jury’s determination that defendant
killed Benintende, while circumstantial, was strong. Both women were killed with
the same gun. Defendant had obtained that weapon in 1982, and there was no
evidence any other person had access to it. Further, defendant’s admission to the
Clark killing provided strong circumstantial evidence he also killed Benintende.
Both women were prostitutes who frequented Union Avenue; defendant admitted
to an affinity for prostitutes. Both women were shot multiple times, and their
bodies were recovered from the same canal (although several miles apart). The
similarities between the two crimes pointed strongly toward defendant as
Benintende’s killer. Indeed, the circumstantial evidence was not “susceptible of
CALJIC No. 2.02, as given to the jury, provided: “The specific intent or
mental state with which an act is done may be shown by the circumstances
surrounding the commission of the act. But you may not find the defendant guilty
of the offenses charged in counts one and two, or the crime of voluntary
manslaughter, unless the proved circumstances are not only consistent with the
theory that he had the required specific intent or mental state, but cannot be
reconciled with any other rational conclusion. [¶] Also, if the evidence as to any
such specific intent or mental state is susceptible of two reasonable interpretations,
one of which points to the existence of the specific intent or mental state, and the
other to the absence of the specific intent or mental state, it is your duty to adopt
that interpretation which points to the absence of the specific intent or the mental
state. [¶] If, on the other hand, one interpretation of the evidence as to such
specific intent or mental state appears to you to be reasonable, and the other
interpretation to be unreasonable, then it would be your duty to accept the
reasonable interpretation and to reject the unreasonable.”
[a] reasonable interpretation . . . which points to the defendant’s . . . innocence.”
(CALJIC No. 2.01.)
Moreover, the direct evidence pointing toward innocence was weak.
Defendant presented no evidence related to the Benintende killing. The
prosecution presented evidence that in his confession defendant first denied, then
said he could not remember, killing Benintende. On the stand, defendant testified
“I have no memory of the Benintende homicide.” Defendant’s testimony that he
could not remember was not inconsistent with the evidence of guilt. The only
direct evidence that defendant did not kill Benintende was his denial in his
confession. Defendant did not repeat that denial in his testimony before the jury.
Under the circumstances, there is no reasonable probability (People v. Watson,
supra, 46 Cal.2d at p. 836) that had the jury been given the circumstantial
evidence instruction, it would have found defendant did not kill Benintende.
Defendant contends the error violated several of his federal constitutional
rights. Insofar as the federal Constitution itself does not require courts to instruct
on the evaluation of circumstantial evidence where, as here, the jury properly was
instructed on reasonable doubt (Holland v. United States (1954) 348 U.S. 121,
140; see also Victor v. Nebraska (1991) 511 U.S. 1, 7-17 [approving California’s
pattern instruction on reasonable doubt]), defendant’s claim necessarily rests on
the asserted arbitrary denial of a state-created liberty interest. (See Hicks v.
Oklahoma, supra, 447 U.S. 343.) We doubt the common law right to a
circumstantial evidence instruction rises to the level of a liberty interest protected
by the due process clause. (Cf. People v. Breverman, supra, 19 Cal.4th at pp. 170-
172 [right under state law to lesser-included-offense instruction does not create
liberty interest under Hicks].) In any event, any federal constitutional error would
be harmless beyond a reasonable doubt for the reasons expressed above.
10. Failure to instruct on unconsciousness
Defendant contends the trial court erred in failing to instruct on its own
motion on the defense of unconsciousness under CALJIC No. 4.30. Among those
persons deemed incapable of committing a crime are individuals who “committed
the act charged without being conscious thereof.” (§ 26, class four.)
Unconsciousness, when not voluntarily induced, is a complete defense to a
charged crime. (People v. Babbitt (1988) 45 Cal.3d 660, 693; People v. Kelly
(1973) 10 Cal.3d 565, 573.) “Unconsciousness does not mean that the actor lies
still and unresponsive. Instead, a person is deemed ‘unconscious’ if he or she
committed the act without being conscious thereof.” (People v. Haley (2004) 34
Cal.4th 283, 313; People v. Ochoa, supra, 19 Cal.4th at pp. 423-424.) A trial
court must instruct on unconsciousness on its own motion if it appears the
defendant is relying on the defense, or if there is substantial evidence supporting
the defense and the defense is not inconsistent with the defendant’s theory of the
case. (See generally People v. Breverman, supra, 19 Cal.4th at p. 157.)
Here, defendant did not apparently rely upon the defense of
unconsciousness. No expert testified that defendant was unconscious during either
killing; nor did defendant himself testify he was unconscious, but only that he
could not later recall the killings. Further, defense counsel during argument did
not articulate a theory of unconsciousness.
Accordingly, the trial court was obligated to instruct on that defense only if
substantial evidence supported it. Defendant contends his testimony that he had
no independent memory of the Clark killing from the time he pushed the victim
out of the truck, coupled with expert testimony suggesting that defendant “blacked
out” and could not remember the incident, warranted an unconsciousness
instruction with respect to the Clark count. (See People v. Wilson (1967) 66
Cal.2d 749, 762-763 [unconsciousness instruction warranted where defendant
testified he did not remember shootings and was “distraught and mentally
exacerbated” by the events preceding the shootings].) The defense experts’
testimony, however, fairly read, does not imply that he was unconscious during
the events. Rather, it suggests he was aware of the events as they were occurring,
but reacted to them emotionally rather than logically. For example, Dr. Glaser
testified the killing was an emotional, “impulsive heat of passion event,” and
Dr. Bird testified the killing was an impulsive, emotional act of passion and fear.
Further, defendant’s own testimony that he could not remember portions of the
events, standing alone, was insufficient to warrant an unconsciousness instruction.
(People v. Froom (1980) 108 Cal.App.3d 820, 829-830 [evidence defendant was
forgetful and told a psychiatrist he “awakened” after the crime was committed did
not entitle defendant to an unconsciousness instruction]; People v. Heffington
(1973) 32 Cal.App.3d 1, 10 [there is no “ineluctable rule” that a defendant’s
inability to remember supplies an evidentiary foundation for an unconsciousness
instruction]; cf. People v. Coston (1947) 82 Cal.App.2d 23, 40 [“a defendant’s
mere statement of forgetfulness, unsupported by any other evidence, is at most
very little evidence of unconsciousness at the time of performing a particular
The only evidence supporting an unconsciousness instruction with regard to
the Benintende count was defendant’s confession and his testimony that he had
“no memory” of that killing. Defendant’s experts did not testify regarding his
mental state during that killing, and there was no other evidence of the
circumstances surrounding that crime. Defendant’s professed inability to recall
the event, without more, was insufficient to warrant an unconsciousness
instruction. (People v. Heffington, supra, 32 Cal.App.3d at p. 10; People v.
Coston, supra, 82 Cal.App.2d at p. 40.)
11. Asserted dilution of the reasonable doubt standard
several then-standard jury instructions given in his
case — on the sufficiency of circumstantial evidence to prove specific intent
(CALJIC No. 2.02), willfully false witnesses (CALJIC No. 2.21), weighing
conflicting testimony (CALJIC No. 2.22), sufficiency of the testimony of one
witness (CALJIC No. 2.27), and motive (CALJIC No. 2.51) — individually and
collectively operated to dilute application of the constitutionally required
reasonable doubt standard. He contends the error violated his rights to due
process, to a jury trial, and to be free from cruel and unusual punishment under the
Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution,
thereby requiring reversal without an inquiry into prejudice. (See In re Winship
(1970) 397 U.S. 358, 364; see also Sullivan v. Louisiana (1993) 508 U.S. 275,
We previously have rejected claims that the challenged instructions, alone
or in combination, somehow dilute or undermine the reasonable doubt standard
and thus deprive defendants of due process. (E.g., People v. Samuels (2005) 36
Cal.4th 96, 131 [CALJIC No. 2.01 does not undermine the requirement of proof
beyond a reasonable doubt]; People v. Stitely (2005) 35 Cal.4th 514, 555-556
[CALJIC No. 2.01 does not diminish prosecution’s burden of proof]; People v.
Stewart, supra, 33 Cal.4th at p. 521 [CALJIC Nos. 2.01 and 2.02 do not
unconstitutionally lessen the prosecution’s burden of proof]; People v. Crew
(2003) 31 Cal.4th 822, 847-848 [CALJIC Nos. 2.21.2 and 2.22 do not improperly
lessen the prosecution’s burden of proof; CALJIC No. 2.51 does not relieve the
prosecution of its burden of proof]; People v. Frye (1998) 18 Cal.4th 894, 958
[CALJIC No. 2.51 does not shift the burden of proof to defendant]; People v.
Noguera (1992) 4 Cal.4th 599, 633-734 [CALJIC Nos. 2.02, 2.21, and 2.27 do not
permit conviction upon proof less than beyond a reasonable doubt].) We decline
to revisit these holdings. Because defendant’s Sixth and Eighth Amendment
claims are intertwined with his due process claim, we reject those claims for the
same reasons. (See People v. Samuels, supra, 36 Cal.4th at p. 131 [CALJIC No.
2.01 does not violate Sixth Amendment]; People v. Stitely, supra, 35 Cal.4th at
pp. 555-556 [CALJIC No. 2.01 does not violate defendant’s rights to trial by jury
and to a reliable verdict].)
Defendant asserts the instructions cumulatively diluted the burden of proof.
As noted above, however, several of our previous cases involved challenges to
multiple instructions and we have rejected such claims. We do so again. Here the
jury was instructed on the presumption of innocence and reasonable doubt under
the then-standard California instruction, CALJIC No. 2.90. The United States
Supreme Court has held that this instruction satisfies due process requirements.
(Victor v. Nebraska, supra, 511 U.S. at pp. 7-17; People v. Millwee (1998) 18
Cal.4th 96, 161.) No federal constitutional violation occurred.
12. Cumulative instructional error
Defendant asserts “the combined effect of the many and critical
instructional lacunae was to preclude the jury from considering any coherent
theory of defense” and to “eliminate from the jury’s consideration any
alternative to a verdict of death eligibility,” in violation of defendant’s rights to
due process, a fair jury trial, and freedom from cruel and unusual punishment
under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States
Constitution. To the extent this claim simply restates defendant’s claim under
Beck v. Alabama, supra, 447 U.S. at page 627, it fails for the same reason the Beck
claim fails: because the jury properly was instructed on implied malice second
degree murder and voluntary manslaughter under a heat-of-passion theory, there
was at least one applicable lesser included offense presented to the jury related to
the Clark count. Thus the instructions in combination neither precluded the jury
from considering any coherent theory of defense, nor eliminated from the jury’s
consideration any alternative to a verdict rendering defendant death eligible.
To the extent defendant contends the combined prejudicial effect of the
instructional errors identified above resulted in the denial of a fundamentally fair
trial in violation of the Fourteenth Amendment’s due process guarantee (see
People v. Hill (1998) 17 Cal.4th 800, 844-848) or brought about a miscarriage of
justice (see People v. Jackson (1991) 235 Cal.App.3d 1670, 1681), we disagree.
We have found only the following errors or assumed errors related to the Clark
count: the failure to instruct on express malice second degree murder and
involuntary manslaughter, and error in the concurrence instruction. We already
have considered the effect of the erroneous concurrence instruction on the failure
to instruct on express malice second degree murder and have found these errors in
combination to be harmless. The assumed error in the failure to instruct on
involuntary manslaughter was independent of the second degree murder and
concurrence instruction errors. Under these circumstances, the errors and assumed
errors in combination did not render defendant’s trial fundamentally unfair. (See
People v. Davis (2005) 36 Cal.4th 510, 572-573; People v. Malone (1988) 47
Cal.3d 1, 56; People v. Bloyd (1987) 43 Cal.3d 333, 356.)
We have found the following errors related to the Benintende count: the
failure to instruct on circumstantial evidence, and error in the concurrence
instruction. The latter of these errors was harmless, because the issue posed by the
incorrect instruction was resolved adversely to defendant under other instructions
and because the erroneous instruction at worst imposed a burden on the
prosecution more onerous than the law required. This error thus did not result in
any prejudice to defendant that could cumulate. The error in the circumstantial
evidence instruction was harmless because the circumstantial evidence supporting
a finding defendant killed Benintende was not reasonably susceptible of an
interpretation consistent with innocence, whereas the evidence supporting a
finding defendant did not kill Benintende was weak or nonexistent. Because this
error standing alone did not render the trial fundamentally unfair, reversal is not
required. (People v. Davis, supra, 36 Cal.4th at pp. 572-573; People v. Malone,
supra, 47 Cal.3d at p. 56; People v. Bloyd, supra, 43 Cal.3d at p. 356.)
G. Asserted erroneous jury instructions — special circumstance
Defendant asserts the trial court erred in failing to instruct that the multiple-
murder special circumstance, section 190.2, subdivision (a)(3), required a finding
of intent to kill for both murders. He points out that these crimes took place in the
“window period” between People v. Turner (1984) 37 Cal.3d 302 and People v.
Anderson (1987) 43 Cal.3d 1104, and therefore an intent to kill was required in
order to impose the death penalty. He acknowledges the jury necessarily found he
intended to kill Clark when it convicted him of deliberate and premeditated
murder, but he asserts the implied malice instructions did not require the jury to
find he intended to kill Benintende.
Carlos v. Superior Court (1983) 35 Cal.3d 131, 153-154, we construed
the felony-murder special circumstance of the 1978 death penalty law, section
190.2, subdivision (a)(17), to require an intent to kill in all instances, even when
the defendant was the actual killer. We did so in part to avoid potential Eighth
Amendment and equal protection problems that might result from a construction
not requiring such intent. (Carlos v. Superior Court, supra, 35 Cal.3d at pp. 147-
153, discussing Enmund v. Florida (1982) 458 U.S. 782.) In People v. Turner, a
case involving two murders tried solely on a felony-murder theory, we applied the
rationale of Carlos to hold that the multiple-murder special circumstance also
requires an intent to kill. (People v. Turner, supra, 37 Cal.3d at pp. 328-329.)
In light of intervening United States Supreme Court authority (Cabana v.
Bullock (1986) 474 U.S. 376 and Tison v. Arizona (1987) 481 U.S. 137), we
partially overruled Carlos and Turner in People v. Anderson. We held in
Anderson that intent to kill is not an element of the felony-murder or multiple-
murder special circumstances, but that when the defendant is an aider and abetter
rather than the actual killer, intent to kill must be proved. (People v. Anderson,
supra, 43 Cal.3d at pp. 1138-1150.) We since have held that due process and ex
post facto principles preclude applying Anderson to defendants who committed
their crimes in the “window period” between Carlos and Anderson. (People v.
Hardy (2004) 34 Cal.4th 283, 309; People v. Fierro (1991) 1 Cal.4th 173, 227.)
We similarly have applied Turner in cases involving crimes committed between
the decisions in Turner and Anderson. (People v. Maury, supra, 30 Cal.4th 342,
430; People v. Johnson, supra, 6 Cal.4th at p. 45.)
This is a “window period” case: the Benintende and Clark homicides
occurred in January 1986 and February 1987, respectively, after we decided
Turner but before our decision in Anderson. Accordingly, for the special
circumstance of multiple-murder to be found true, the jury was required to find
intent to kill for at least one of the murders. As defendant acknowledges,
however, we previously have rejected the precise contention he now makes: that
Turner required an intent-to-kill finding for both murders. (People v. Dennis
(1997) 17 Cal.4th 468, 515-517.) As we explained: “We have never held that the
multiple-murder special circumstance requires a jury to find the defendant
intended to kill every victim. We also have never held that the intent to kill one
victim and the implied malice murder of a second victim is insufficient to establish
a multiple murder special circumstance.” (People v. Dennis, supra, 17 Cal.4th at
Dennis disposes of defendant’s claims. Our state law never has required a
jury to find intent to kill both victims in order for the multiple-murder special
circumstance to be found true.32 Defendant asks us to reconsider Dennis in light
of federal constitutional principles, but we perceive no conflict between those
principles and Dennis. Because the jury necessarily found defendant intended to
kill Clark when it found him guilty of her premeditated murder, none of Turner’s
Eighth Amendment “concerns about imposing the death penalty for an
unintentional killing is involved.” (People v. Dennis, supra, 17 Cal.4th at p. 517.)
H. Constitutionality of the death penalty statute
of California’s death penalty statute
on a number of grounds. We have rejected most of these claims, and we decline to
revisit these holdings. Specifically, we have held: “section 190.2 — setting out
the special circumstances that, if found true, render a defendant eligible for the
death penalty — adequately narrows the category of death-eligible defendants in
conformity with the requirements of the Eighth and Fourteenth Amendments.”
People v. Coddington (2000) 23 Cal.4th 529 and People v. Maury, supra,
30 Cal.4th 342 are not to the contrary. In Coddington, we did not address the
merits of defendant’s claim that the trial court erred in failing to instruct that the
multiple-murder special circumstance required a finding of “specific intent to kill
each victim,” instead finding only that any possible error was harmless. (People v.
Coddington, supra, 23 Cal.4th at pp. 594-595, overruled on other grounds in Price
v. Superior Court, supra, 25 Cal.4th at p. 1069, fn. 13.) In Maury, the trial court
instructed the jury it had to find intent to kill in at least two of the murders of
which defendant was found guilty. Defendant contended the court erroneously
instructed on the intent requirement with respect to aider and abetter liability.
(People v. Maury, supra, 30 Cal.4th at pp. 430-432.) We concluded, based upon
the instructions and the evidence, that if the jury predicated any murder liability on
an aiding-and-abetting theory, it necessarily found defendant intended to kill.
(Ibid.) We did not address the question whether it was correct to require intent to
kill for more than one of the murders.
(People v. Blair, supra, 36 Cal.4th at p. 752; People v. Barnett (1998) 17 Cal.4th
1044, 1179.) The multiple-murder special circumstance, section 190.2,
subdivision (a)(3), is not overly broad and does not focus improperly on the nature
of the act rather than on the defendant’s mental state. (People v. Lucero, supra, 23
Cal.4th at p. 740; see also People v. Sapp, supra, 31 Cal.4th at pp. 286-287.)
“The Eighth and Fourteenth Amendments do not require that a jury
unanimously find the existence of aggravating factors or that it make written
findings regarding aggravating factors.” (People v. Blair, supra, 36 Cal.4th at
p. 753; People v. Davis, supra, 36 Cal.4th at p. 571.) “[N]either the cruel and
unusual punishment clause of the Eighth Amendment, nor the due process clause
of the Fourteenth Amendment, requires a jury to find beyond a reasonable doubt
that aggravating circumstances exist or that aggravating circumstances outweigh
mitigating circumstances or that death is the appropriate penalty. [Citations.]
Indeed, the trial court need not and should not instruct the jury as to any burden of
proof or persuasion at the penalty phase.” (People v. Blair, supra, 36 Cal.4th at
p. 753; People v. Davis, supra, 36 Cal.4th at p. 571.) That certain noncapital
sentencing proceedings may require jury unanimity or proof beyond a reasonable
doubt does not mean the death penalty statute violates the equal protection clause
of the Fourteenth Amendment. (See People v. Blair, supra, 36 Cal.4th at p. 754;
People v. Davis, supra, 36 Cal.4th at pp. 571-572.) Further, the United States
Supreme Court’s recent decisions interpreting the Sixth Amendment’s jury trial
guarantee (Blakely v. Washington (2004) 542 U.S. 961; Ring v. Arizona (2002)
536 U.S. 584; Apprendi v. New Jersey (2000) 530 U.S. 466) do not compel a
different answer to these questions. (People v. Blair, supra, 36 Cal.4th at p. 753;
People v. Davis, supra, 36 Cal.4th at p. 572.)
The use of the qualifier “extreme” in section 190.3, factors (d) (“extreme
mental or emotional disturbance”) and (g) (“extreme duress”) does not
unconstitutionally limit the jury’s consideration of mitigating evidence in violation
of the Eighth or Fourteenth Amendments and does not render those factors
unconstitutionally vague. (People v. Harris (2005) 37 Cal.4th 310, 365; People v.
Blair, supra, 36 Cal.4th at pp. 753-754; People v. Arias, supra, 13 Cal.4th at pp.
188-189.) Nor does the term “reasonable belief” in section 190.3, factor (f)
(reasonable belief in moral justification) unconstitutionally restrict the jury’s
consideration of mitigating evidence. (People v. Jenkins (2000) 22 Cal.4th 900,
1055; People v. Lang (1989) 49 Cal.3d 991, 1037.)
There is no requirement under the jury-trial guarantee of the Sixth
Amendment, the cruel and unusual punishment clause of the Eighth Amendment,
or the due process or equal protection guarantees of the Fourteenth Amendment
that a jury find the existence of unadjudicated criminal activity under section
190.3, factor (b), unanimously or beyond a reasonable doubt. (People v. Blair,
supra, 36 Cal.4th at p. 753; People v. Davis, supra, 36 Cal.4th at p. 571; see also
People v. Prieto (2003) 30 Cal.4th 226, 262-265 [Ring does not require that jury
unanimously find beyond a reasonable doubt that unadjudicated criminal acts
involved force or violence].) Use of the same jury that has adjudged a defendant
guilty of first degree murder with special circumstances to determine at the penalty
phase whether he or she committed unadjudicated criminal acts does not violate
the impartial-jury requirement of the Sixth Amendment. (People v. Stanley (1995)
10 Cal.4th 764, 821-822; People v. Balderas (1985) 41 Cal.3d 144, 204.) The
consideration of unadjudicated criminal acts does not violate defendant’s Sixth
Amendment rights to a speedy trial. (See People v. Stanley, supra, 10 Cal.4th at
pp. 822-823.) Nor did such consideration here violate defendant’s right to
confront the witnesses; defendant was able to confront both Butler and Martinez
when they testified against him. (Cf. People v. Rodrigues, supra, 8 Cal.4th at
p. 1161 [no confrontation violation from use of unadjudicated criminal act at
penalty phase where defendant was able to confront the witnesses who were
The discretion given to prosecutors to decide when to seek the punishment
of death does not render the death penalty statute arbitrary or vague in violation of
the Eighth Amendment, nor does it violate the equal protection or due process
clauses. (People v. Harris, supra, 37 Cal.4th at p. 366; People v. Carter (2005) 36
Cal.4th 1215, 1280; People v. Barnett, supra, 17 Cal.4th at p. 1179.)
Contrary to defendant’s contention, “intercase proportionality review is not
required by the due process, equal protection, fair trial, or cruel and unusual
punishment clauses of the federal Constitution.” (People v. Blair, supra, 36
Cal.4th at p. 753; People v. Anderson (2001) 25 Cal.4th 543, 602.)
On the other hand, a capital defendant is entitled under the California
Constitution to intracase proportionality review to determine whether the penalty
of death is disproportionate to the defendant’s culpability. (People v. Horning
(2004) 34 Cal.4th 871, 913; People v. Lenart (2004) 32 Cal.4th 1107, 1130.)
Defendant argues no “meaningful” intracase proportionality review was conducted
at trial. We interpret defendant’s argument as a request to perform such review on
appeal. (See People v. Horning, supra, 34 Cal.4th at p. 913.) To determine
whether defendant’s sentence is disproportionate to his individual culpability, we
examine the circumstances of the offense, including its motive, the extent of
defendant's involvement, the manner in which the crime was committed, the
consequences of defendant's acts, and defendant’s personal characteristics
including age, prior criminality, and mental capabilities. (People v. Steele (2002)
27 Cal.4th 1230, 1269.) Here, the jury found that defendant, acting alone, shot to
death two young women, one of whom was only 15 years of age, in part to save
himself from embarrassment and the adverse personal and employment
consequences that might have ensued had his involvement with prostitutes become
known. Defendant not only was a mature man in his forties at the time of the
crimes; he also was a deputy sheriff who was knowledgeable concerning the law
and was charged with protecting the public. The jury rejected defendant’s mental
state defense. “These circumstances do not demonstrate that defendant's death
sentence is disproportionate.” (People v. Wilson (2005) 36 Cal.4th 309, 361; see
also People v. Steele, supra, 27 Cal.4th at p. 1269.)
Defendant makes two new arguments. First, defendant contends section
190.3, factor (h), which allows the jury to consider whether “the capacity of the
defendant to appreciate the criminality of his conduct or to conform his conduct to
the requirements of the law was impaired as a result of mental disease or defect”
or intoxication, unconstitutionally limits the jury’s consideration of mitigating
evidence, because the jury would understand it to mean the defendant’s mental
illness may not be considered unless it caused the commission of the crime. We
disagree. First, we do not believe the jury would understand the factor to be so
limited. Even if it did, section 190.3, factor (k) and its corresponding instruction
allow a jury to consider any aspect of the defendant’s character or record that calls
for a sentence less than death, including, in this instance, mental illness of the
defendant that did not cause the crime in question. (See People v. Hughes (2002)
27 Cal.4th 287, 405, fn. 33 [use of temporal language in factor (h) does not
preclude jury from considering constitutionally relevant evidence]; cf. People v.
Jenkins, supra, 22 Cal.3d at p. 1055; People v. Arias, supra, 13 Cal.4th at pp. 188-
189.) Factor (h) therefore does not violate the Eighth Amendment.
section 190.3, factor (g), which allows the jury to
consider whether the defendant acted “under extreme duress or under the
substantial domination of another person,” is an “illusory” factor because it never
could apply under any set of facts in a first degree murder case. Even were we to
accept this argument, defendant would not benefit from such a holding, for duress
was not even arguably an issue in his case. Defendant acted alone in killing
Benintende and Clark. Thus, a finding that factor (g) is somehow deficient would
not cause us to upset the penalty judgment. (Cf. People v. Visciotti, supra, 2
Cal.4th at p. 75 [trial court’s response to jury question concerning the meaning of
“extreme duress” did not prejudice defendant, where no evidence of duress was
phase instructional errors
to the standard penalty phase jury
instructions, and also asserts the instructions actually given in his case were in
error in several specific respects. We find no prejudicial error.
1. Adequacy of the record
There is no record of any discussions regarding the content of penalty phase
jury instructions. According to the settled statement, an unreported discussion
took place in chambers on May 8, 1988, during the guilt phase presentation of
evidence, regarding “procedures for selection of jury instructions for the penalty
phase.” However, “[n]o one recalls the content of any subsequent discussions
concerning selection of death penalty instructions or whether a subsequent
discussion occurred.” There is no indication in the record that any subsequent
discussion of penalty phase jury instructions was held. Further, the clerk’s
transcript indicates there were no instructions submitted by either party that were
not given. A face sheet attached to the penalty phase instructions that were given
states: “The attached INSTRUCTIONS for the above entitled action consist of 9
pages as submitted to the Court by counsel for the respective parties.” Nine pages
of instructions follow. A face sheet regarding penalty phase instructions not given
states: “The attached INSTRUCTIONS for the above entitled action consist of
0 pages as submitted to the Court by counsel for the respective parties.” No pages
of instructions follow.
Defendant contends the record is inadequate to permit meaningful appellate
review of his claims of penalty phase instructional error. We disagree. Here, in
contrast to the discussions shown to have taken place regarding jury instructions to
be given at the conclusion of the guilt phase, there is no affirmative evidence in
the record that any unrecorded discussion of the contents of the penalty phase jury
instructions took place. The settled statement indicates an unrecorded discussion
occurred concerning the procedures for selecting penalty phase instructions, but
not a discussion concerning which instructions would be given or how the
instructions would be worded. Accordingly, we may conclude that no such
discussion took place. Further, the clerk’s transcript shows that defense counsel
did not request any instructions that were not given.
Defendant’s reliance upon People v. Young, supra, 34 Cal.4th 1149, again
is misplaced. There, we presumed instructional errors were preserved for review,
because it was clear that portions of the record regarding discussions of jury
instructions were missing. (People v. Young, supra, 34 Cal.4th at pp. 1202-1203,
1225.) Here, there is no indication that any relevant portion of the record is
missing. The record therefore is adequate to permit meaningful review of
defendant’s jury instruction claims.
2. Asserted errors in the standard instructions
Defendant challenges the standard penalty phase jury instructions, CALJIC
Nos. 8.84.1 and 8.84.2, on several grounds. As defendant acknowledges, we have
rejected many of the precise arguments he raises here. Thus, we have held the
trial court need not identify which particular factors are aggravating and which are
mitigating. (People v. Kennedy (2005) 36 Cal.4th 595, 641; People v. Brown
(2004) 33 Cal.4th 382, 402.) It follows the trial court need not instruct that
background evidence may be considered only in mitigation. Further, the
instructions “need not explicitly label a factor such as extreme mental or emotional
disturbance as mitigating, provided there is no reasonable likelihood jurors
misunderstood the instruction in a way that violated the defendant’s rights.”
(People v. Dunkle (2005) 36 Cal.4th 861, 924; see also People v. McPeters (1992)
2 Cal.4th 1148, 1991.) Here, defense counsel strenuously argued defendant’s
mental and emotional problems were factors in mitigation. The prosecutor did not
argue those same factors were aggravating; rather she argued that the evidence
suggesting defendant suffered from such problems was unconvincing. Under
these circumstances, we find “no reasonable likelihood the jury considered
evidence of defendant’s mental illness as aggravating.” (People v. Dunkle, supra,
36 Cal.4th at pp. 924-925 [no reasonable likelihood jury misconstrued section
190.3, factor (d) to allow it to consider defendant’s mental illness in aggravation,
where nothing in the prosecutor’s argument suggested such a conclusion and some
of the evidence identified by defendant as potentially aggravating was elicited by
The trial court need not instruct that the beyond-a-reasonable-doubt
standard and the requirement of jury unanimity do not apply to mitigating factors.
(See People v. Breaux (1991) 1 Cal.4th 281, 314-315 [jury unanimity].) The trial
court also need not instruct that the absence of a mitigating factor is not
aggravating. (People v. Pollock (2004) 32 Cal.4th 1153, 1193-1194.) The trial
court is not obligated to define the terms “aggravating” and “mitigating,” even
upon request, because they are commonly understood. (People v. Hawkins, supra,
10 Cal.4th at p. 965; People v. Malone, supra, 47 Cal.3d at pp. 54-55.)
The trial court is not required to instruct on its own motion that the only
aggravating factors the jury may consider are those specified in section 190.3.
(E.g., People v. Taylor (2001) 26 Cal.4th 1155, 1180; cf. People v. Earp (1999) 20
Cal.4th 826, 899 [refusal to so instruct did not violate Eighth Amendment’s
Although the trial court should have instructed that section 190.3, factors
(b) (other criminal activity involving force or violence) and (c) (prior felony
convictions) pertain only to criminal activity other than that for which defendant
was convicted in the present proceeding (People v. Sanchez (1995) 12 Cal.4th 1,
78; People v. Fudge, supra, 7 Cal.4th at p. 1125; People v. Montiel (1993) 5
Cal.4th 877, 938; People v. Miranda (1987) 44 Cal.3d 57, 105-106 & fn. 28), the
error in the present case was harmless (see People v. Hardy, supra, 2 Cal.4th at
p. 205). As we have stated, absent an invitation to do so by the prosecutor,
“ ‘jurors are unlikely to give the circumstances of the current crime greater weight
in the penalty determination simply because they appear to be included in two
separate categories of statutory “aggravation.” ’ ” (People v. Webster (1991) 54
Cal.3d 411, 453; see also People v. Hardy, supra, 2 Cal.4th at p. 205.) Here, the
prosecutor did not exploit the potential ambiguity in factor (b); rather, the only
matter she argued as relevant to factor (b) was the assault on Tambri Butler. Thus,
there is no reasonable possibility the instructional error affected the verdict.33
Relying on People v. Lucero (1988) 44 Cal.3d 1006, defendant contends
the absence of an instruction limiting section 190.3, factor (b) may have deprived
him of the potentially mitigating factor of the absence of prior criminal activity
involving force or violence. In that case, we held prosecutorial argument
erroneously urging the jury to consider the circumstances of the crime under factor
(b) may have deprived the defendant of the potentially mitigating factor of the
absence of prior criminal activity, when no additional aggravating evidence was
introduced at the penalty phase. (People v. Lucero, supra, 44 Cal.3d at p. 1031,
fn. 15.) The present case is unlike Lucero. Here, the prosecutor did not argue the
Benintende and Clark incidents could be considered under factor (b). Moreover,
because the prosecutor introduced the Butler incident in aggravation, there was
(footnote continued on next page)
(People v. Fudge, supra, 7 Cal.4th at p. 1126; People v. Hardy, supra, 2 Cal.4th at
The trial court was not required to tell the jury it could consider defendant’s
mental and emotional problems under section 190.3, factors (d) and (h) even
though it had rejected his guilt phase defenses. Defendant contends that absent
such an instruction, the jury would have concluded those factors were not
applicable under the trial court’s instruction to consider each of the listed factors
“if applicable.” We disagree. In argument, the parties extensively discussed the
evidence relevant to factors (d) and (h). No one suggested this evidence could not
be considered simply because it did not establish a defense to the charges. (See
People v. Hernandez (1988) 47 Cal.3d 315, 359-360 [prosecutor’s argument did
not suggest jury could not consider mitigating evidence if such evidence did not
establish insanity or other legal defense].) Accordingly, the jury would not have
been misled to believe factors (d) and (h) were inapplicable. Moreover, even if the
jury determined those factors were inapplicable, it still could consider evidence of
defendant’s mental illness under the expansive language of section 190.3, factor
(k), which allowed it to consider any aspect of defendant’s character or record or
background offered by the defense as a reason to impose a sentence of life
imprisonment without possibility of parole. Under these circumstances, neither
error nor prejudice appears.
The trial court was not required to define the terms “mental or emotional
disturbance” in section 190.3, factor (d). (People v. Holt, supra, 15 Cal.4th at
p. 699.) Defendant argues the court was obligated to instruct that evidence of
(footnote continued from previous page)
only a minimal chance the jury would have found the absence of prior criminal
activity a mitigating factor.
mental or emotional disturbance could be considered in mitigation even if there
was no reasonable explanation or excuse for such disturbance. Although we agree
the scope of factor (d) is broad (see People v. Holt, supra, 15 Cal.4th at p. 695),
defendant cites no authority supporting such a clarifying instruction, and we are
unaware of any.
The trial court was not required to tell the jury it had discretion to impose
the punishment of life imprisonment without possibility of parole even in the
absence of any mitigating factors. (People v. Anderson, supra, 25 Cal.4th at p.
600, fn. 20; cf. People v. Duncan (1991) 53 Cal.3d 955, 979 [jury may return such
a verdict even in the complete absence of mitigating evidence].)
The federal Constitution does not compel a trial court to instruct that a
sentence of life imprisonment without possibility of parole actually signifies the
defendant never will be paroled. (People v. Kennedy, supra, 36 Cal.4th at p. 641.)
The failure to instruct the jury to disregard the guilt phase instruction to
reach a verdict “regardless of the consequences” did not prejudice defendant. (See
People v. Kipp (1998) 18 Cal.4th 349, 379-380; People v. Arias, supra, 13 Cal.4th
at p. 171.) At the penalty phase, the court did not repeat the instruction; the jury
was instructed to consider the statutory sentencing factors — including the
expansive section 190.3, factor (k) — and to disregard any conflicting guilt phase
instructions, and the prosecutor’s argument did not seek to exploit the notion that
the “regardless of the consequences” instruction applied at the penalty phase. The
jury was not misled. (People v. Kipp, supra, 18 Cal.4th at pp. 379-380; People v.
Arias, supra, 13 Cal.4th at p. 171.)
The trial court was not obligated to instruct that the jury had to choose life
imprisonment without possibility of parole if it found the mitigating circumstances
outweighed the aggravating circumstances. (People v. Millwee, supra, 18 Cal.4th
at p. 381; People v. Barnett, supra, 17 Cal.4th at pp. 1176-1177; People v.
Stankewitz (1990) 51 Cal.3d 72, 109.)
The trial court instructed the jury pursuant to CALJIC No. 8.84.2: “To
return a judgment of death, each of you must be persuaded that the aggravating
circumstances are so substantial in comparison with the mitigating circumstances
that it warrants death instead of life without parole.” The trial court was not
required to provide a standard for comparing mitigating and aggravating
circumstances other than the “so substantial” standard. (See People v. Millwee,
supra, 18 Cal.4th at pp. 162-163; People v. Arias, supra, 13 Cal.4th at pp. 170-
171.) The phrase “so substantial” is not unconstitutionally vague. (People v.
Sanchez, supra, 12 Cal.4th at p. 81; People v. Breaux, supra, 1 Cal.4th at pp. 315-
316.) Further, CALJIC No. 8.84.2 is not unconstitutional due to its failure to
instruct that the central penalty phase determination is whether the death penalty is
“appropriate.” (People v. Breaux, supra, 1 Cal.4th at pp. 315-316.)
To the extent our previous cases have not addressed defendant’s
constitutional arguments, we note that the Eighth Amendment places no
constraints on a jury’s discretion in choosing the appropriate sentence between life
imprisonment without possibility of parole and the death penalty, as long as the
special circumstances have narrowed suitably the class of death-eligible
defendants and the sentencing jury is permitted to make an individualized
determination based upon the defendant’s character and record, guided by specific
and relevant factors. (People v. Musselwhite, supra, 17 Cal.4th at pp. 1267-1268,
citing Zant v. Stephens (1983) 462 U.S. 862, 875; see also People v. Bacigalupo
(1993) 6 Cal.4th 457, 477-478.) As we have explained, the California death
penalty law and accompanying jury instructions fulfill those purposes. Moreover,
to the extent defendant argues the instructions denied him due process of law by
arbitrarily depriving him of a benefit provided under state law (see Hicks v.
Oklahoma, supra, 447 U.S. 343), his argument fails because, as we have
explained, state law does not mandate the instructions he seeks.
3. Asserted errors specific to this case
a. The misstating of CALJIC No. 8.84.1, factor (d)
CALJIC No. 8.84.1, factor (d), instructs the jury to consider “[w]hether or
not the offense was committed while the defendant was under the influence of
extreme mental or emotional disturbance.” Here (assuming the correctness of the
reporter’s transcript), the trial court misread the standard instruction, omitting the
word “mental.” Thus, the court instructed the jury to consider “[w]hether or not
the offense was committed while the defendant was under the influence of extreme
or emotional disturbance.” Apparently, neither the trial court nor counsel was
aware of the mistake. Defendant argues the error would have led the jury to
believe it could not consider evidence of his mental disturbance in aggravation,
violating his right to a reliable penalty verdict under the Eighth and Fourteenth
Amendments to the United States Constitution.
State law error at the penalty phase requires reversal when there is a
reasonable possibility the error affected the verdict. (People v. Brown (1988) 46
Cal.3d 432, 447-448.) That standard is “the same, in substance and effect, as the
harmless beyond a reasonable doubt standard of Chapman v. California (1967)
386 U.S. 18, 24.” (People v. Jones (2003) 29 Cal.4th 1229, 1264, fn. 11, italics
omitted; People v. Ochoa, supra, 19 Cal.4th at p. 479.)
Although the trial court erred, the error was harmless under either standard.
We do not believe the jury would have understood the court’s oral instruction to
preclude the consideration of defendant’s mental problems in mitigation. The jury
would not have considered “mental” disturbance to be a separate category from
“emotional” disturbance, which the oral instructions told the jury to consider.
Moreover, the jury requested and received written copies of the instructions. The
written CALJIC No. 8.84.1, factor (d) instruction was correct. In argument, the
prosecutor correctly reiterated that the jury was to consider whether defendant
committed the offense while under the influence of “extreme mental or emotional
disturbance.” Both parties in argument addressed the mitigating force, or lack
thereof, of defendant’s mental and emotional problems. There is no reasonable
possibility the error affected the verdict, and any error was harmless beyond a
b. The modification of CALJIC No. 8.84.1, factors (f), (g), and (h)
Defendant contends the trial court improperly modified CALJIC No. 8.84.1
by striking out portions of factors (f), (g), and (h) that were applicable to his
case.34 Defendant contends this error denied him a fair and reliable sentencing
under the Eighth Amendment, because the jury was prevented from considering all
constitutionally relevant evidence and was deprived of the opportunity to consider
defendant’s conduct in the context of the full range of available factors.
The court altered the standard text of CALJIC No. 8.84.1 by instructing the
jury to consider:
“(f) Whether or not the offense was committed under circumstances which
the defendant reasonably believed to be a moral justification or extenuation for his
“(g) Whether or not the defendant acted under extreme duress or the
substantial domination of another person.
The trial court also deleted portions of CALJIC No. 8.84.1, factors (e) and
(j), but defendant does not challenge these deletions.
“(h) Whether or not at the time of the offense the capacity of the defendant
to appreciate the criminality of his conduct or to conform his conduct to the
requirements of the law was impaired as a result of mental disease or defect or the
affects [sic] of intoxication.”
We have held on numerous occasions that the trial court is not required to
delete inapplicable mitigating factors from the penalty instructions. (E.g., People
v. Carter, supra, 36 Cal.4th at p. 1280; People v. Kennedy, supra, 36 Cal.4th at
p. 641; People v. Miranda, supra, 44 Cal.3d at pp. 104-105.) Conversely, we have
held a trial court is not obligated to instruct on all the statutory penalty factors on
its own motion. (People v. Marshall (1990) 50 Cal.3d 907, 932.) In People v.
Freeman, supra, 8 Cal.4th at page 524, we rejected the contention a trial court had
erred by deleting certain factors, stating: “Although the court need not delete
inapplicable factors [citation], it is not error of which defendant can complain to
do what defendants have long urged.”
Here, instruction on the deleted factors was not required, because no
substantial evidence supported the deleted factors. The factors deleted by the trial
court were whether or not defendant reasonably believed his conduct was morally
justified, whether or not defendant acted under the substantial domination of
another person, and whether or not defendant’s capacity to conform his conduct to
the requirements of the law was impaired by the effects of intoxication. There was
no evidence defendant believed his conduct was morally justified, no evidence any
other person was involved in the murders or forced defendant to commit them, and
no evidence defendant was intoxicated at the time of the crimes.
Defendant contends the jury might have construed his mental health
experts’ testimony to mean he acted under the “substantial domination” of his
abusive mother or stepfathers when he committed the crimes. We consider it
highly unlikely the jury would have so interpreted this evidence. Further,
defendant cites no case, and we are aware of none, construing CALJIC No. 8.84.1,
factor (g)’s “substantial domination” language so broadly as to include the effects
of remote childhood abuse.
Defendant also argues that declining to instruct on the “effects of
intoxication” deprived the jury of the proper context for its penalty decision. He
contends the mitigating impact of his evidence of mental impairment was
diminished because the jury was not told that committing a crime while
voluntarily intoxicated — a more blameworthy state than committing a crime
while mentally impaired — also can be mitigating. Although we reiterate it is “the
better practice for a court to instruct on all the statutory penalty factors” (People v.
Marshall, supra, 50 Cal.3d at p. 932) precisely for reasons such as those invoked
by defendant’s argument, any error was harmless. Despite our inability to know
for certain what mitigating weight the jury assigned to defendant’s evidence of
mental and emotional impairment, we discern no reasonable possibility that the
penalty verdict would have differed had the jury been instructed that impairment
resulting from voluntary intoxication can be mitigating.
c. The failure to instruct sua sponte on general principles
Defendant contends the trial court erred by failing to instruct on several
general principles of law that were applicable at the penalty phase.
failure to testify
Defendant first asserts the trial court erred by failing to instruct on its own
motion pursuant to CALJIC No. 2.60 that the jury should not draw any adverse
inferences from defendant’s failure to testify. As defendant recognizes, we have
rejected this precise argument on numerous occasions. (E.g., People v. Smith
(2003) 30 Cal.4th 581, 639; People v. Holt, supra, 15 Cal.4th at p. 687.)
(ii) Failure to specify applicable instructions
At the guilt phase, the trial court instructed the jury on general principles
applicable to the evaluation of evidence. Defendant contends the trial court erred
by failing to reinstruct on these principles at the penalty phase or, at a minimum,
to tell the jury which guilt phase instructions were applicable at the penalty phase.
He contends this error deprived him of his right to a reliable penalty verdict under
the Eighth Amendment to the federal Constitution.
We have held the trial court is not required to reinstruct on general
principles at the penalty phase when the guilt phase instructions were not limited
to use at the guilt phase and none of the penalty phase instructions contradict the
guilt phase instructions. (People v. Benavides (2005) 35 Cal.4th 69, 112; People
v. Sanders (1995) 11 Cal.4th 475, 561; People v. Hawthorne (1992) 4 Cal.4th 43,
73-74.) Here, at the penalty phase the jury was told to disregard only those guilt
phase instructions that conflicted with the principles outlined in CALJIC No.
8.84.1, factor (k), and nothing in the parties’ arguments or in the other instructions
suggested that the general principles outlined at the guilt phase would not apply at
the penalty phase. No error appears.35
Defendant contends the guilt phase instructions on witness credibility were
incomplete. In giving CALJIC No. 2.20, the trial court deleted the final three
factors: character or reputation for untruthfulness, prior admissions of lying, and
prior felony convictions. Defendant argues these factors were crucial in
evaluating the credibility of Martinez and Butler; therefore he was prejudiced
In People v. Babbitt, supra, 45 Cal.3d at page 718, footnote 26, we
suggested: “[t]o avoid any possible confusion in future cases, trial courts should
expressly inform the jury at the penalty phase which of the instructions previously
given continue to apply.” Babbitt was decided in June 1988, after defendant’s
when the trial court failed to reinstruct pursuant to the full CALJIC No. 2.20 at the
We conclude any error was harmless. There was no evidence of the first
two factors — character or reputation for untruthfulness, or a prior admission of
untruthfulness — regarding Butler or Martinez. And although the jury never was
instructed to consider prior felony convictions in evaluating credibility, both
women were examined and cross-examined on their criminal histories and their
possible motives for testifying against defendant. There is no reasonable
possibility the outcome of the penalty phase would have differed had the jury been
instructed expressly to consider felony convictions in evaluating credibility. No
prejudicial error appears.
(iii) Instructions on reasonable doubt and the presumption
At the penalty phase, the jury was told that in order to consider, in
aggravation, evidence of other criminal activity — that is, the assault on Tambri
Butler with a firearm — it had to find the existence of such activity beyond a
reasonable doubt. Defendant contends the trial court erred in failing to reinstruct
at the penalty phase on the definitions of reasonable doubt and the presumption of
innocence, pursuant to CALJIC No. 2.90. He contends the error affected the
jury’s consideration of the “other-crimes” evidence involving Butler and Ellen
We previously have rejected the contention that a trial court is required to
reinstruct at the penalty phase on the presumption of innocence, the prosecution’s
burden to prove guilt, or the meaning of reasonable doubt.36 (People v.
The United States Supreme Court has not decided whether the federal
Constitution requires the presumption of innocence to attach to other-crimes
(footnote continued on next page)
Kirkpatrick (1994) 7 Cal.4th 988, 1020; People v. Benson (1990) 52 Cal.3d 754,
809-810.) “As we have explained, a reasonable juror would assume that ‘generic’
instructions given at the guilt phase continue to apply at the penalty phase.”
(People v. Kirkpatrick, supra, 7 Cal.4th at p. 1020.) In a recent opinion, we
concluded the trial court should have redefined reasonable doubt at the penalty
phase. (People v. Chatman (2006) 38 Cal.4th 344, 407-408.) In that case,
however, the trial court had instructed the jury at the penalty phase to
“ ‘[d]isregard all other instructions given to you in other phases of this trial.’ ”
(People v. Chatman, supra, 38 Cal.4th at p. 408; see also People v. Holt, supra, 15
Cal.4th at p. 685.) Here, by contrast, at the penalty phase the jury was told to
disregard only those guilt phase instructions that conflicted with the principles of
CALJIC No. 8.84.1, factor (k). The presumption of innocence and reasonable
doubt instructions did not conflict with those principles. Under the circumstances,
the general rule that the trial court is not required to reinstruct on general
principles at the penalty phase applies. (People v. Kirkpatrick, supra, 7 Cal.4th at
p. 1020; see also People v. Benavides, supra, 35 Cal.4th at p. 112; People v.
Sanders, supra, 11 Cal.4th at p. 561; People v. Hawthorne, supra, 4 Cal.4th at
Further, assuming error, it was harmless beyond a reasonable doubt. The
jury was fully and properly instructed on the concepts of reasonable doubt and the
presumption of innocence at the guilt phase. There is no reasonable possibility the
jury, having applied the reasonable doubt and presumption-of-innocence concepts
(footnote continued from previous page)
evidence introduced at the penalty phase of a capital trial. (Delo v. Lashley (1993)
507 U.S. 272, 279.)
at the guilt phase, had forgotten them by the time penalty phase deliberations
began two weeks later.
(iv) Instructions on eyewitness identification
Defendant asserts the trial court erred by failing to instruct on its own
motion on the prosecution’s burden to prove identity based upon eyewitness
testimony (CALJIC No. 2.91) and the factors to consider in evaluating eyewitness
testimony (CALJIC No. 2.92). He asserts these instructions were crucial for the
jury properly to assess the testimony of Tambri Butler.
A trial court has no duty to instruct pursuant to CALJIC Nos. 2.91 and 2.92
on its own motion. (People v. Alcala (1992) 4 Cal.4th 742, 802-803; see also
People v. Ward, supra, 36 Cal.4th at pp. 213-214 [no sua sponte duty to modify
CALJIC No. 2.92].) Defendant’s claim therefore fails.
J. Asserted error in the consideration of the automatic motion to
modify the verdict
Defendant contends the trial court deprived him of meaningful review of
his automatic motion to modify the verdict under section 190.4, subdivision (e), in
violation of his rights to a reliable penalty determination and to due process of law
under the Eighth and Fourteenth Amendments to the United States Constitution.
Subdivision (e) of section 190.4 provides in pertinent part: “In every case in
which the trier of fact has returned a verdict or finding imposing the death penalty,
the defendant shall be deemed to have made an application for modification of
such verdict . . . . In ruling on the application, the judge shall review the evidence,
consider, take into account, and be guided by the aggravating and mitigating
circumstances referred to in Section 190.3, and shall make a determination as to
whether the jury’s findings and verdicts that the aggravating circumstances
outweigh the mitigating circumstances are contrary to law or to the evidence
presented.” We have emphasized that in ruling on the modification application,
“ ‘the trial court must independently reweigh the evidence of aggravating and
mitigating factors presented at trial and determine whether, in its independent
judgment, the evidence supports the death verdict. The court must state the
reasons for its ruling on the record. On appeal, we independently review the trial
court's ruling after reviewing the record, but we do not determine the penalty de
novo.’ (People v. Steele (2002) 27 Cal.4th 1230, 1267.)” (People v.
Cleveland (2004) 32 Cal.4th 704, 766-767.)
Defendant first contends the trial court impermissibly considered the
following two items of evidence before ruling on the motion to modify: (1) a
probation and sentencing report; and (2) the statement of Benintende’s father,
Fredrick Fredrek, which the prosecutor offered pursuant to section 1191.1.37
We first note that defendant did not object to the court considering either
the probation report or Fredrek’s statement. These claims of error therefore are
forfeited. (People v. Ramos (1997) 15 Cal.4th 1133, 1183; People v. Dennis,
supra, 17 Cal.4th at p. 551.) Even were we to reach the merits, we would find no
In ruling on an automatic motion to modify, it is improper for a trial court
to consider matters that were not before the jury. (People v. Holt, supra, 15
Cal.4th at p. 694; People v. Cummings, supra, 4 Cal.4th at p. 1131; People v.
Frank (1990) 51 Cal.3d 718, 742; People v. Lewis (1990) 50 Cal.3d 262, 287.)
At the time of the modification motion, section 1191.1 provided in
pertinent part: “The victim of any crime . . . or the next of kin of the victim if the
victim has died . . . . [¶] . . . has the right to appear, personally or by counsel, at
the sentencing proceeding and to reasonably express his or her views concerning
the crime [and] the person responsible . . . . The court in imposing sentence shall
consider the statements of . . . next of kin made pursuant to this section . . . . ”
(Stats. 1984, ch. 1425, § 1, p. 5008.)
Thus, we recognize the better practice is for the court to rule on the motion to
modify before reading any applicable probation reports (§ 1203, subds. (b), (g)) or
hearing victim statements pursuant to section 1191.1. (People v. Navarette (2003)
30 Cal.4th 458, 526; People v. Lewis, supra, 50 Cal.3d at p. 287.) The failure to
do so is not error, however, where nothing in the record suggests the court relied
on any impermissible material in ruling on the motion to modify. (People v.
Navarette, supra, 30 Cal.4th at p. 526; People v. Dennis, supra, 17 Cal.4th at
p. 551; People v. Holt, supra, 15 Cal.4th at p. 694.)
Here, we find no indication in the record that the court relied on either the
report or Fredrek’s statement in ruling on the motion to modify. Rather, after
reviewing the aggravating and mitigating factors set out in section 190.3, the court
denied the motion to modify, stating: “And when you take into consideration the
circumstances of these crimes charged in this case and the circumstances of other
crimes that came out, I think that the penalty of death is not unreasonable, and the
court will impose it.” In discussing the factors that had informed its decision to
deny the motion, the court made no mention of matters contained in the probation
report or in Fredrek’s statement. Moreover, the court’s explanation of its ruling
demonstrates that it independently considered whether the aggravating and
mitigating circumstances existed, and independently weighed them before denying
the motion. (People v. Navarette, supra, 30 Cal.4th at p. 526; People v. Ramos,
supra, 15 Cal.4th at p. 1184; People v. Holt, supra, 15 Cal.4th at p. 694; People v.
Cummings, supra, 4 Cal.4th at p. 1331.)
Defendant asserts the trial court’s consideration of Fredrek’s statement in
ruling on the motion to modify violated the Eighth Amendment prohibition on the
sentencing authority’s consideration of “characterizations and opinions about the
crime, the defendant, and the appropriate sentence” of a victim’s family member.
(Payne v. Tennessee (1991) 501 U.S. 808, 830, fn. 2.) As we have explained,
however, nothing in the record suggests the trial court relied on Fredrek’s
statement in ruling on the motion to modify. Moreover, as a general matter, this
aspect of the United States Supreme Court’s Eighth Amendment jurisprudence
does not apply to automatic motions to modify a death verdict. (People v. Ramos,
supra, 15 Cal.4th at p. 1184; People v. Benson, supra, 52 Cal.3d at p. 812.)
Defendant next contends the trial court erred by counting the circumstances
of the Benintende and Clark murders under multiple factors. He asserts the trial
court improperly considered the two homicide counts under section 190.3, factor
(b) (other criminal activity involving force or violence), when it stated: “[G]oing
to the second part of 190.3, the presence or absence of criminal activity by the
defendant which involved the use or attempted use of force or violence. [¶] Well,
of course, both of these murders involve the use of force or violence.” Counting
the Clark and Benintende murders under factor (b) was improper, because that
factor is limited to criminal activity other than crimes of which the defendant was
convicted in the capital proceeding. (People v. Montiel, supra, 5 Cal.4th at p.
938.) Here, however, there is “no indication the court believed that this criminal
activity weighed more heavily on the aggravating side of the balance simply
because it was considered under both factor (a) and factor (b) of section 190.3.”
(People v. Holt, supra, 15 Cal.4th at p. 695.) Any error therefore was harmless.
Defendant further argues the trial court improperly counted the Benintende
homicide twice under section 190.3, factor (a) (the circumstances of the crime) by
counting that homicide both as a special circumstance (multiple murder) and as a
“circumstance of the crime.” (See People v. Ashmus (1991) 54 Cal.3d 932, 997
[improper to count the same conduct under both “the circumstances of the crime”
and “the existence of any special circumstances” under section 190.3, factor (a)].)
He contends only the circumstances of the capital crime — that is, the Clark
homicide — could be considered as “circumstances of the crime” under factor (a).
Defendant is mistaken on both counts. The trial court explained: “The first thing
the jury was asked to look at in determining the fate of Mr. Rogers were the
circumstances of the crime of which he was convicted and the existence of any
special circumstances found to be true. [¶] And of course, they did find special
circumstances to be true. [¶] They found the defendant in this proceeding had
been convicted of more than one offense of murder in the first or second degree.”
Then, after reviewing all of the other factors, the court stated: “And when you take
into consideration the circumstances of these crimes charged in this case and the
circumstances of other crimes that came out, I think the penalty of death is not
unreasonable, and the court will impose it.” Accordingly, it is apparent that the
trial court first properly considered simply the existence of the multiple-murder
special circumstance under “the existence of any special circumstances found to
be true.” (See People v. Ashmus, supra, 54 Cal.3d at p. 997 [“under the heading of
‘the existence of any special circumstances found to be true,’ [factor (a)] reaches
merely the presence of any such special circumstances”].) Second, the trial court
properly considered the conduct underlying the Benintende homicide as a
“circumstance of the crime of which the defendant was convicted in the present
proceeding.” As we have explained, “we have assumed that factor (a), though it
speaks in the singular of the ‘crime’ of which the defendant was currently
convicted, covers the ‘circumstances’ of all offenses, singular or plural, that were
adjudicated in the capital proceeding.” (People v. Montiel, supra, 5 Cal.4th at p.
938, fn. 33.) No error appears.
Defendant next asserts the trial court improperly considered whether
defendant in the future would pose a danger to prostitutes. In discussing section
190.3, factor (b) (other criminal activity involving force or violence), the trial
court stated: “But I think that his actions with Tambri Butler shocked me almost
more than any other case I have ever heard. [¶] The use of a cattle prod or the
taser or whatever you call it, and the firing of the shot across the bridge of her
nose, and requiring her to engage in all of these various and sundry sexual
activities, that probably influenced the jury, in my view, and this court more than
any other because not only has it happened once with Janine Benintende, twice
with Tracie Johann Clark; we know it happened with [Ellen] Martinez; we know it
happened with Tambri Butler. [¶] How many more times did it happen? But
even more importantly, how many more times in the future might it happen?”
Then, at the conclusion of its summary of the aggravating and mitigating
circumstances, the trial court stated: “And so, the court weighing all of them has
determined that this man is a danger to a certain segment of society, and maybe all
We believe the trial court’s comments, read in context, properly were
addressed to the circumstances of the crime and defendant’s criminal history.
Defendant argues that the trial court erred because it focused on his dangerousness
to prostitutes, an irrelevant consideration in view of the circumstance that life in
prison without possibility of parole, or the death penalty, were the only possible
penalties. Even if the court erred to the extent it focused on the danger defendant
would pose to prostitutes, defendant was not prejudiced. The trial court mentioned
only briefly defendant’s dangerousness to prostitutes. The court did not place
undue emphasis on this factor. We do not believe there is a reasonable possibility
the trial court would have ruled differently had it not considered defendant’s future
the trial court improperly relied upon the Martinez
incident as an aggravating factor. He contends that incident was not properly
before the jury under section 190.3, factor (b), because it did not constitute a crime
and there was no evidence of force, violence, or the threat to use force or violence.
The Attorney General asserts defendant’s conduct came within the prohibition of
several criminal statutes, including false imprisonment (§§ 236, 237), false arrest
under color of authority (§ 146), and committing a lewd act in public (§ 647, subd.
(a)), and that defendant’s statement to Martinez that he was going to take her
“downtown” was a threatened arrest and thus a threatened use of force. In the
alternative, the Attorney General argues Martinez’s testimony was relevant to
section 190.3, factor (a), the circumstances of the capital crime, because it was the
brief termination of defendant’s employment resulting from Martinez’s complaint
that provided defendant with the motive to murder Clark. We need not resolve
this dispute. Even if the Martinez incident was not properly before the trial court
in the context of its ruling on the automatic motion to modify the verdict, any error
was harmless. The trial court mentioned that incident only once, and then only
briefly, after recounting the facts of the Butler incident. It is evident the trial court
based its ruling primarily upon the circumstances of the Clark murder, the Butler
incident, and the lack of substantial evidence in mitigation. There is no reasonable
possibility any error affected the trial court’s ruling on the motion.
Defendant next asserts the trial court improperly considered a “pattern of
violence.” He contends this is not a proper factor in aggravation, because it does
not fit any of the statutory criteria and also was not supported by the evidence.
We disagree. The trial court mentioned the so-called “pattern of violence” only
after it had denied the motion to modify, when it was discussing the sentencing
considerations outlined in the probation report. No error appears.
Defendant finally contends the trial court disregarded or forgot the bulk of
the mitigating evidence. In discussing such evidence, the trial court stated: “This
man has no criminal record and that is a factor in mitigation. Defendant would
have us believe that he committed these acts while under the influence of extreme
mental or emotional disturbance, and I don’t believe it, and neither did the jury.”
The court then reviewed the other mitigating factors mentioned in section 190.3,
including whether the victim was a participant, whether defendant believed the
killing was morally justified, whether defendant acted under duress or the
domination of another person, whether defendant had the capacity to appreciate
the criminality of his conduct, defendant’s age, and whether defendant was an
accomplice, finding that these circumstances did not mitigate the crimes
committed by defendant. The court then stated: “And I couldn’t think of any
other extenuating circumstance in this case.” Defendant contends the trial court
disregarded the evidence of his record of service as a deputy sheriff, the love
defendant’s family felt for him, and his remorse for the Clark killing. But a trial
court is not required to mention every item of evidence it reviewed in ruling on the
automatic motion to modify. (People v. Frierson (1991) 53 Cal.3d 730, 752.)
Here, as in Frierson, we find no indication in the record that the court ignored or
overlooked defendant’s mitigating evidence. Rather, the court simply found that
the mitigating evidence presented by defendant did not amount to an extenuating
circumstance and thus did not outweigh the aggravating evidence. No error
In sum, there is no reasonable possibility that any errors or assumed errors,
singularly or in combination, affected the trial court’s ruling on the motion to
modify. Thus, any related claimed federal constitutional error would be harmless
beyond a reasonable doubt.
K. Constitutionality of the method of execution
Under subdivision (b) of section 3604, the punishment of death is imposed
by the administration of lethal injection unless the prisoner chooses lethal gas.
Defendant contends both methods of execution constitute cruel and unusual
punishment in violation of the Eighth Amendment to the United States
Constitution. “As this court repeatedly has recognized, however, such claims are
not cognizable on direct appeal, because ‘an imperfection in the method of
execution does not affect the validity of the judgment and is not a basis for
reversal of the judgment on appeal.’ [Citations.] On direct appeal, defendant is
restricted to claims ‘bear[ing] on the validity of the death sentence itself.’
[Citation.]” (People v. Cornwell (2005) 37 Cal.4th 50, 105-106.) Moreover,
defendant’s “attack on illegalities in the execution process that may or may not
exist when his death sentence is carried out is premature.” (People v. Boyer,
supra, 38 Cal.4th at p. 485.)
L. Asserted cumulative error and prejudice
Defendant contends the cumulative effect of errors committed at the guilt
and penalty phases denied him a fair trial and due process of law, requiring
reversal of the penalty judgment. In particular, he points to guilt phase
instructional errors and improper introduction of evidence of his firing over the
Martinez incident. We have concluded the evidence concerning the Martinez
incident properly was introduced, and the instructional errors cumulatively did not
affect the result at the guilt phase. With regard to the penalty phase, the sole errors
or assumed errors we have found involved jury instructions. Each was harmless
individually. When considered cumulatively with the guilt phase errors, we
likewise find no reasonable possibility that a different penalty verdict would have
been rendered absent these errors. The errors therefore were harmless beyond a
reasonable doubt. Finally, the errors or assumed errors committed in ruling on the
automatic motion to modify the verdict provide no basis for reversal.
We affirm the judgment in its entirety.
GEORGE, C. J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Rogers
Original Appeal XXX
Opinion No. S005502
Date Filed: August 21, 2006
Judge: Gerald K. Davis
Attorneys for Appellant:
A. J. Kuchins, under appointment by the Supreme Court; Denise Anton; Howard, Rice, Nemerovski,
Canady, Falk & Rabkin and Alan W. Sparer for Defendant and Appellant.
Attorneys for Respondent:
Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson, Chief Assistant Attorney
General, Robert R. Anderson, Assistant Attorney General, Harry Joseph Colombo and George M.
Hendrickson, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
A. J. Kutchins
P.O. Box 5138
Berkeley, CA 94705
George M. Hendrickson
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
|1||The People (Respondent)|
Represented by Attorney General - Sacramento Office
George M. Hendrickson, Deputy Attorney General
P.O. Box 944255
|2||Rogers, David Keith (Appellant)|
Represented by Albert J. Kutchins
Attorney at Law
P.O. Box 5138
|3||Rogers, David Keith (Appellant)|
Represented by Alan W. Sparer
Law Office of Alan W. Sparer
100 Pine Street, 33rd Floor
San Francisco, CA
|Aug 21 2006||Opinion: Affirmed|
|May 2 1988||Judgment of death|
|May 6 1988||Filed certified copy of Judgment of Death Rendered|
|May 19 1988||Application for Extension of Time filed|
By Court Reporters Davis & Maienschein to Complete R.T.
|May 20 1988||Extension of Time application Granted|
To Court Reporters To 7-21-88 To Complete R.T.
|Jan 13 1989||Counsel appointment order filed|
Upon request of appellant for appointment of counsel, Alan Sparer, Esq., is hereby appointed to represent appellant on his automatic appeal now pending in this court.
|Feb 8 1989||Application for Extension of Time filed|
By Applt to request correction of Record.
|Feb 9 1989||Extension of Time application Granted|
To Applt To 4-14-89 To request correction of Record.
|Apr 14 1989||Application for Extension of Time filed|
By Applt to request correction of Record.
|Apr 17 1989||Extension of Time application Granted|
To Applt To 6-13-89 To request correction of Record.
|May 26 1989||Application for Extension of Time filed|
By Applt to request correction of Record.
|May 30 1989||Extension of Time application Granted|
To Applt To 7-13-89 To request correction of Record.
|Jun 7 1994||Record on appeal filed|
C-6 (2,700 Pp.) and R-29 (6,324 Pp.); Clerk's Transcript includes 529 pages of Juror Questionnaires.
|Jun 7 1994||Appellant's opening brief letter sent, due:|
|Jul 13 1994||Application for Extension of Time filed|
To file Aob.
|Jul 14 1994||Extension of Time application Granted|
To 9-16-94 To file Aob.
|Sep 12 1994||Application for Extension of Time filed|
To file Aob.
|Sep 14 1994||Extension of Time application Granted|
To 11-15-94 To file Aob.
|Nov 9 1994||Application for Extension of Time filed|
To file Aob.
|Nov 10 1994||Extension of Time application Granted|
To 1-17-95 To file Aob.
|Jan 10 1995||Application for Extension of Time filed|
To file Aob.
|Jan 13 1995||Extension of Time application Granted|
To 2-16-95 To file Aob.
|Feb 14 1995||Application for Extension of Time filed|
To file Aob.
|Feb 16 1995||Extension of Time application Granted|
To 4-17-95 To file Aob.
|Apr 12 1995||Application for Extension of Time filed|
To file Aob.
|Apr 20 1995||Extension of Time application Granted|
To 6-16-95 To file Aob.
|Jun 12 1995||Application for Extension of Time filed|
To file Aob.
|Jun 15 1995||Extension of Time application Granted|
To 8-15-95 To file Aob.
|Aug 14 1995||Application for Extension of Time filed|
To file Aob.
|Aug 15 1995||Extension of Time application Granted|
To 10-16-95 To file Aob.
|Oct 12 1995||Application for Extension of Time filed|
To file Aob.
|Oct 17 1995||Extension of Time application Granted|
To 12-15-95 To file Aob.
|Dec 11 1995||Application for Extension of Time filed|
To file Aob.
|Dec 15 1995||Extension of Time application Granted|
To 2-13-96 To file Aob.
|Feb 9 1996||Application for Extension of Time filed|
To file Aob.
|Feb 14 1996||Extension of Time application Granted|
To 4-15-96 To file Aob.
|Apr 12 1996||Application for Extension of Time filed|
To file Aob.
|Apr 15 1996||Filed:|
Corrected Decl of Rosemary Tarlton in support of Eot Request.
|Apr 24 1996||Filed:|
Declaration of Alan Sparer in support of Applic. for Ext. of time to file Aob.
|Apr 26 1996||Extension of Time application Granted|
To 6-14-96 To file Aob.
|Jun 12 1996||Application for Extension of Time filed|
To file Aob.
|Jun 17 1996||Extension of Time application Granted|
To 8-13-96 To file Aob.
|Aug 6 1996||Application for Extension of Time filed|
To file Aob.
|Aug 14 1996||Extension of Time application Granted|
To 10-15-96 To file Aob.
|Oct 10 1996||Application for Extension of Time filed|
To file Aob.
|Oct 28 1996||Extension of Time application Granted|
To 12-16-96 To file Aob.
|Dec 13 1996||Application for Extension of Time filed|
To file Aob.
|Dec 17 1996||Extension of Time application Granted|
To 2-14-97 To file Aob.
|Feb 13 1997||Application for Extension of Time filed|
To file AOB
|Feb 13 1997||Filed:|
Declaration of Alan W. Sparer in support of Application of Extension of time to Serve and file AOB
|Feb 19 1997||Extension of Time application Granted|
To April 15,1997 To file AOB
|Apr 11 1997||Application for Extension of Time filed|
To file Aob.
|Apr 21 1997||Extension of Time application Granted|
To 6-16-97 To file Aob.
|Apr 21 1997||Filed:|
Response to Applt's 18th request for Eot to file Aob.
|Jun 16 1997||Application for Extension of Time filed|
To file AOB (19th Request).
|Jun 20 1997||Filed:|
Response to Applt's request for Eot to file Aob.
|Jun 26 1997||Extension of Time application Granted|
To 8-15-97 To file Aob. no further Extensions of time Are Contemplated.
|Aug 8 1997||Application for Extension of Time filed|
To file AOB (20th Request).
|Aug 15 1997||Extension of Time application Granted|
To 10-14-97 To file Aob. this Ext. of time Is granted Based on the representation by Counsel Alan W. Sparer that "He Will Meet the October [14, 1997] Deadline." no further Extensions of time will be Granted.
|Nov 5 1997||Filed:|
Applt's Applic. to Augment the Record.
|Nov 5 1997||Filed:|
Applt's motion for Relief from Default to file Aob.
|Nov 5 1997||Filed:|
Applt's Applic. to file Oversized Aob. (Note: AOB received Under Separate Cover).
|Nov 10 1997||Order filed:|
Granting Applt's motion for Relief from Default in Failure to Timely file Aob, & Granting Applic. to file an Oversized brief.
|Nov 10 1997||Appellant's opening brief filed|
(2 Vols. - 351 Pp.)
|Nov 10 1997||Filed:|
One Vol. of Appendices to Aob.
|Dec 3 1997||Filed:|
(Suppl) Proof of Service of AOB (on Applt).
|Dec 10 1997||Order filed:|
Applt's motion to Augment the Record to Include A "Supplemental Stipulated Settled Statement", filed 11-5-97, Is Granted.
|Dec 10 1997||Application for Extension of Time filed|
To file Resp's brief.
|Dec 15 1997||Extension of Time application Granted|
To 2-9-98 To file Resp's brief.
|Feb 6 1998||Application for Extension of Time filed|
To file Resp's brief.
|Feb 11 1998||Extension of Time application Granted|
To 4-10-98 To file Resp's brief.
|Apr 10 1998||Application for Extension of Time filed|
To file Resp's brief.
|Apr 21 1998||Extension of Time application Granted|
To 6-9-98 To file Resp's brief.
|Jun 5 1998||Application for Extension of Time filed|
To file Resp's brief.
|Jun 22 1998||Extension of Time application Granted|
To 8-10-98 To file Respondent's brief
|Aug 10 1998||Application for Extension of Time filed|
To file Resp's brief.
|Aug 13 1998||Extension of Time application Granted|
To 9-9-98 To file Resp's brief.
|Sep 8 1998||Filed:|
Application for Leave to file A brief over 280 pages
|Sep 9 1998||Application for Extension of Time filed|
To file Resp's brief.
|Sep 21 1998||Order filed:|
Application of Respondent for permission to file an Oversized Respondent's brief Is Granted.
|Sep 22 1998||Extension of Time application Granted|
To 9-23-98 To file Respondent's brief
|Sep 23 1998||Application for Extension of Time filed|
To file Resp's brief.
|Sep 24 1998||Application for Extension of Time filed|
To file Suppl Opening brief & Modify briefing Schedule.
|Sep 30 1998||Extension of Time application Granted|
To 9-30-98 To file Resp's brief.
|Sep 30 1998||Order filed:|
Granting Applt's request for Leave to file A Suppl Opening brief; brief Due 11-12-98. the request to Postpone Deadline for filing of Resp's brief Is Denied.
|Sep 30 1998||Respondent's brief filed|
|Sep 30 1998||Filed:|
Appendix to Resp's brief.
|Nov 12 1998||Filed:|
Applt's Suppl Opening brief (10 Pp.)
|Nov 12 1998||Filed:|
Applt's motion for Relief from Default in Failure to Timely file reply brief Etc.
|Nov 23 1998||Order filed:|
Granting Applt's "motion for Relief from Default in Failure to Timely file Applt's reply brief & for Order Reinstating the time to File." the time To file reply brief Is extended To 12-21-98.
|Dec 22 1998||Application for Extension of Time filed|
To file reply brief.
|Dec 23 1998||Extension of Time application Granted|
To 2-19-99 To file reply brief
|Feb 17 1999||Application for Extension of Time filed|
To file reply brief.
|Feb 23 1999||Extension of Time application Granted|
To 4-19-99 To file reply brief
|Apr 19 1999||Application for Extension of Time filed|
To file reply brief.
|Apr 28 1999||Filed:|
Suppl Decl of Alan Sparer in support of Applic. for Ext. of time to file reply brief.
|May 4 1999||Extension of Time application Granted|
On the Basis of Counsel Alan W. Sparer's representation that He Anticipates that He "will be Able to file the reply brief no Later Than August 23,1999," the Application for Extension of time Is granted to and Including June 18, 1999.
|Jun 17 1999||Application for Extension of Time filed|
To file reply brief
|Jun 29 1999||Extension of Time application Granted|
On the Basis of Counsel Alan W. Sparer's representation that He "Continues to Work Toward the August 23,1999 Deadline," the Application for Extension of time Is granted to and Including 7-19-99 Including 7-19-99.
|Jul 16 1999||Application for Extension of Time filed|
To file reply brief.
|Jul 19 1999||Filed:|
Corrected Decl of Alan Sparer in support of Eot Request.
|Jul 21 1999||Extension of Time application Granted|
On the Basis of Counsel Alan W. Sparer's representation that He "Continue[S] to Work Toward the August 23,1999 Deadline," it Is Ordered that The time to Serve and file Applt's reply brief Is extended to and Including 8-23-99.
|Aug 19 1999||Application for Extension of Time filed|
By Applt. to file reply brief.
|Aug 25 1999||Extension of Time application Granted|
On the Basis of Counsel Alan W. Sparer's Repre- Sentation that He "Plans to file the reply At the End (Of) the Current Three Week Extension which Has been requested," it Is Ordered Taht the time to Serve and file Applt's reply brief Is extended to and Including 9/13/99. no further Extensions Of time Are Contemplated.
|Sep 13 1999||Appellant's reply brief filed|
|Nov 19 1999||Filed:|
Applt's Applic. for Access to Exhibits Lodged with Trial Court.
|Dec 6 1999||Filed:|
Appl. of Defendant and Applt for Emergency Consid. of Previously filed Application for Access to Exhibits Lodged with Trial Court.
|Dec 8 1999||Opposition filed|
By Resp to Emergency motion for release of Exhibits. (received By Fax).
|Dec 9 1999||Filed:|
Reply to Opposition to Emergency motion for release of Exhibits.
|Dec 10 1999||Received:|
(by Fax) Declaration of Tam Hodgson in support of Oppos. to Emergency motion for release of Exhibits (received Too Late for Court's Consideration).
|Dec 10 1999||Order filed|
Appellant's application for access to exhibits lodged with the trial court is denied without prejudice to his right to inspect the exhibits and conduct ballistics testing while the exhibits remain in the custody of the Clerk of the Kern County Superior Court, and on such terms and conditions as the superior court may prescribe to ensure their preservation and integrity.
|Jan 28 2000||Filed:|
First Confidential Decl. of Atty Alan W. Sparer
|Jan 28 2000||Filed:|
Second Confidential Decl. of Atty Alan W. Sparer.
|Feb 3 2000||Compensation awarded counsel|
|Feb 3 2000||Compensation awarded counsel|
|Feb 14 2000||Compensation awarded counsel|
|Sep 8 2005||Exhibit(s) lodged|
People's 1-15, 79 and 80.
|Sep 14 2005||Exhibit(s) lodged|
People's no. 3 (large diagram)
|Jan 17 2006||Exhibit(s) lodged|
People's 62 and 63.
|Apr 12 2006||Oral argument letter sent|
advising counsel that case could be scheduled for oral argument as early as the late May calendar, to be held the week of May 30, 2006, in San Francisco. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument.
|Apr 19 2006||Note:|
copy of oral argument letter e-mailed to attorney Alan Sparer.
|May 1 2006||Change of contact information filed for:|
attorney Alan W. Sparer.
|May 2 2006||Case ordered on calendar|
May 31, 2006, at 1:30 p.m., in San Francisco
|May 3 2006||Filed:|
supplemenal proof of service of change of attorney contact information.
|May 3 2006||Motion for appointment of counsel filed|
by attorney Sparer for appointment of associate counsel.
|May 12 2006||Filed letter from:|
George M. Hendrickson, Dep. Attorney General, dated May 11, 2006 re focus issues for oral argument.
|May 12 2006||Filed letter from:|
attorney Alan W. Sparer, dated May 12, 2006, re focus issues for oral argument and request for 45 minutes for argument.
|May 17 2006||Counsel appointment order filed|
Good cause appearing, the application of appointed counsel Alan W. Sparer for the appointment of associate counsel, filed May 3, 2006, is granted. A.J. Kutchins is hereby appointed to represent appellant David Keith Rogers as associate counsel of record for both the direct appeal and related state habeas corpus/executive clemency proceedings in the above automatic appeal now pending in this court.
|May 19 2006||Received:|
letter from respondent, dated 5-18-2006, with supplemental authorities. (3 pp.)
|May 19 2006||Received:|
letter from appellant, dated 5-19-2006, with additional authorities, and advising the court that one of his previously-identified "focus issues" will not in fact be a focus of the oral argument presented on appellant's behalf.
|May 31 2006||Cause argued and submitted|
|Jun 2 2006||Received:|
letter from attorney Alan W. Sparer, dated June 2, 2006, re trial court's order granting appellant's motion to pursuant to Penal Code Section 1118.1.
|Aug 21 2006||Opinion filed: Judgment affirmed in full|
Opinion by George, C.J. ----- joined by Kennard, Baxter, Werdegar, Chin, Moreno and Corrigan, JJ.
|Sep 21 2006||Remittitur issued (AA)|
|Sep 28 2006||Received:|
acknowledgment of receipt of remittitur.
|Oct 10 2006||Order filed (150 day statement)|
|Jan 26 2007||Received:|
letter from U.S.S.C., dated January 23, 2007, advising petition for writ of certiorari filed on November 20, 2006 as No. 06-8936.
|May 7 2007||Received:|
letter from U.S.S.C., dated April 30, 2007, advising that the petition for writ of certiorari was denied that date.
|Nov 10 1997||Appellant's opening brief filed|
|Sep 30 1998||Respondent's brief filed|
|Sep 13 1999||Appellant's reply brief filed|