Filed 6/27/05
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S042278
v.
MARY ELLEN SAMUELS,
Los Angeles County
Defendant and Appellant.
Super. Ct. No. PA002269
A jury convicted defendant Mary Ellen Samuels of the first degree murders
of Robert Samuels and James Bernstein, soliciting the murders of Robert Samuels
and James Bernstein, and conspiring to murder Robert Samuels and James
Bernstein. (Pen. Code, §§ 187, subd. (a), 653f, subd. (b), 182, subd. (a)(1);
hereafter all statutory references are to the Penal Code unless otherwise indicated.)
The jury found true the financial gain special circumstance as to the murder of
Robert Samuels, the multiple-murder special circumstance, and the allegation that
a principal in the murder of Robert Samuels had used a firearm. (§§ 190.2, subd.
(a)(1), (3), 12022, subd. (a)(1).)
The jury returned a death verdict for each murder. The trial court denied
defendant’s motions for a new trial and to reduce the penalty verdict. The court
imposed a death sentence. This appeal is automatic. (§ 1239, subd. (b).)
We affirm the judgment in its entirety.
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I.
STATEMENT OF FACTS
A. Guilt Phase
Defendant was married to Robert Samuels. On October 31, 1986,
defendant filed for divorce. Even after the divorce proceedings were initiated,
defendant and Robert Samuels were cordial, and defendant continued to work in
the Subway restaurant she and Robert Samuels owned. However, by November
1988, just before his murder, Robert Samuels was depressed and had a less than
friendly relationship with defendant.
On October 31, 1988—approximately two months before he was killed—
Robert Samuels went to his divorce attorney, Elizabeth Kaufman, and signed a
document seeking changes to his divorce agreement. Robert Samuels wanted to
run the Subway restaurant because he was unemployed and felt he would be better
at running the business. He also wanted to reduce spousal support payments
below the $1,200 per month level because he was no longer able to pay that
amount. The modification was never filed because Kaufman was waiting for
Robert Samuels to complete a portion of the paperwork.
1. The Solicitation and Murder of Robert Samuels
Beginning in 1987, defendant solicited people to murder Robert Samuels
on numerous occasions.
Anne Hambly, defendant’s friend, testified defendant told her that after
several attempts to find someone to kill Robert Samuels had failed, defendant was
able to get James Bernstein to agree to commit the murder. Bernstein was dating
defendant’s daughter, Nicole Samuels. Bernstein was apparently angered when
defendant told him that Robert Samuels had abused Nicole. A month before
Robert Samuels was murdered, Bernstein said he wanted Samuels “taken care of
permanently” because he was a child molester and batterer. He asked his
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employer, Charles Mandel, if he knew anyone who could “take care of it.”
Mandel provided Bernstein with the phone number of Mike Silva. Also, during
November and December 1988, Bernstein asked a friend who owned a gun shop if
he could get some weapons.
On December 7, 1988, defendant told Anne Hambly that Robert Samuels
was dead and that she planned to “discover” his body in two days. On
December 8, 1988, Nicole Samuels called her friend, David Navarro, and said “it’s
done” in reference to Robert Samuels’s murder.
On December 9, 1988, the Los Angeles Fire Department responded to a call
from Robert Samuels’s home. Robert Samuels was found dead. He had been
dead for over 12 hours and was killed by a shotgun blast fired into his head from
close range. Samuels also suffered a blunt force trauma to his head that was a
contributing factor to his death.
Defendant and Nicole Samuels were present when the police arrived.
Defendant and Nicole worked to make it appear that there had been a struggle in
the house. Defendant told the police she discovered Robert Samuels’s body while
dropping off the family’s dog. Defendant sought to bolster this story by leaving
messages on Samuels’s answering machine regarding her plans to drop off the
dog.
Anne Hambly testified that she also went to Robert Samuels’s house the
night he was found dead. Referring to the murder of Robert Samuels, defendant
told Hambly that she could not believe that “it had finally happened” and that she
had given Bernstein money six months earlier to arrange the killing. Defendant
feared being caught and was also afraid to speak because she thought the police
had “bugged” her car, purse, and home.
At trial, the prosecution introduced evidence showing defendant collected
on several insurance policies after Robert Samuels’s death. The total amount of
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these policies was in excess of $240,000. In addition, the prosecution introduced
evidence that a sandwich shop owned by Robert Samuels and defendant was sold
in early 1989, and defendant kept the proceeds of approximately $70,000.
Additional evidence introduced by the prosecution showing how defendant
benefited from Robert Samuels’s death included: (1) defendant kept a car owned
by Robert Samuels; (2) she received approximately $6,000 in uncashed payroll
checks of Robert Samuels; and (3) she refinanced the family home after Robert
Samuels’s death, thereby gaining possession of an additional $160,000.
Defendant began to live a lavish lifestyle after Robert Samuels died. In
addition, defendant made several incriminating statements after his death. For
example, when asked by Anne Hambly who Mike Silva was, defendant told
Hambly that Silva was hired by Bernstein to kill Robert Samuels. Defendant also
told a friend, Marsha Hutchinson, that if she were not careful in her divorce
proceedings, then Hutchinson’s husband might decide to put a hit on her.
Defendant also spoke and acted in a manner that led Bernstein’s older brother and
sister-in-law to believe that defendant had Robert Samuels killed.
James Bernstein also made incriminating statements after Robert Samuels’s
death. He told his employer, Charles Mandel, that Robert Samuels’s murder had
been taken care of and that he received money from defendant to pay Silva for his
part in the crime.
2. The Solicitation and Murder of James Bernstein
On June 27, 1989, James Bernstein was killed. The circumstances leading
to his murder are as follows: David Navarro and James Bernstein met in February
1989. Navarro testified he met Bernstein through Nicole Samuels, who was a
friend of Navarro’s girlfriend.
4
Navarro and Bernstein became friends and they sold drugs together until
Bernstein disappeared in June 1989. Bernstein and Navarro were together when
Bernstein received a page, called the number he had been sent, and then went to
meet Mike Silva. Bernstein referred to Silva as the “hit man.”
Navarro made an anonymous call to the police and provided them with the
phone number Bernstein received via the page and Mike Silva’s name. Navarro
also provided the names of defendant and Bernstein to the police. Los Angeles
Police Officer John Birrer received Navarro’s call on May 1, 1989. After Navarro
provided this information, the police served search warrants. Police searched
Bernstein’s apartment on May 16, 1989, in connection with the murder of Robert
Samuels. The police also searched the victim’s house.
In late May or early June 1989, Bernstein told a friend, Rennie Goldberg,
he was feeling remorseful and frightened of being caught. He wanted to confess
his involvement in Robert Samuels’s murder. By June 1989, Bernstein had
become so afraid that he wanted to move out of the area. By the end of June 1989,
Bernstein was ready to go to the police and admit what he knew. He told Navarro
that he and Mike Silva had killed Robert Samuels and that defendant had paid
them for it. He repeatedly said that defendant had solicited him to murder Robert
Samuels. Bernstein stated that defendant wanted Robert Samuels killed for
insurance money, and that one person had been paid but did not do the job so she
approached Bernstein to see if he would do it. On June 26, 1989, Bernstein told
his older brother that he was frightened and that he was the only person who could
“burn Mary Ellen.”
After Robert Samuels’s murder, defendant told Anne Hambly that she
wanted Bernstein killed because she thought he would go to the police and
disclose her involvement in the murder. In March or April of 1989, Anne Hambly
introduced Paul Gaul to defendant. Gaul was Hambly’s live-in boyfriend.
5
Hambly believed Gaul could help defendant with her trouble with Bernstein.
Defendant and Gaul had several conversations about Robert Samuels’s death. In
the first conversation, defendant mentioned she received insurance money from
Robert Samuels’s death and that Bernstein was blackmailing her for her
involvement in the murder. In the second conversation, defendant repeated the
substance of the first conversation and added that she wanted Robert Samuels
killed because he had abused Nicole and she wanted insurance money. During a
third conversation, defendant mentioned a failed attempt to kill Robert Samuels.
Defendant also said that she had paid for Robert Samuels’s murder, but that the
murder was done sloppily and that she had not expected it to be done in her house
with blood everywhere.
Even in their first conversation, Gaul came to believe that defendant wanted
his help in killing Bernstein. Gaul testified that it was not until a later
conversation that defendant expressly asked Gaul for help. She told Gaul that she
wanted Bernstein killed because he was blackmailing her. She also told Gaul that
Bernstein was selling drugs to children.1 Defendant told Gaul that she would pay
for Bernstein to be killed. Defendant spoke with Gaul five to 10 times about
killing Bernstein, discussing payment two to four times.
Prior to Bernstein’s murder, defendant called Gaul. She told Gaul that she
was taking a trip to Cancun and wanted Bernstein murdered before she returned.
Defendant agreed to pay Gaul $5,000 for killing Bernstein. Another form of
payment was that defendant would forgive a loan made to Anne Hambly. To
assist him in killing Bernstein, Gaul solicited Darryl Ray Edwards. Edwards
agreed to kill Bernstein for $5,000.
1
Gaul testified that his brother had been killed by drug dealers and that he
had been angered by it.
6
In June 1989, at defendant’s request, Bernstein moved in with Anne
Hambly and Paul Gaul. When he moved out of his apartment, Bernstein told his
apartment manager that he was moving out of town to avoid the police. Bernstein
moved in with Hambly and Gaul because he was afraid the police were closing in
on him.
On June 27, 1989, Paul Gaul and Darryl Ray Edwards killed James
Bernstein. On that morning, Gaul met Edwards at a bar and they started drinking.
Their plan to murder Bernstein involved getting Bernstein to go up to an area near
Frazier Park. Gaul and Edwards planned to tell Bernstein that Edwards knew
some drug dealers in Frazier Park and that Gaul, Edwards, and Bernstein would go
and rob them.
The two men separated, planning to meet at Anne Hambly’s later that day.
Gaul returned to Hambly’s house around 5:00 or 6:00 p.m. Edwards arrived
approximately two hours later. Bernstein was at Hambly’s house. Gaul, Edwards,
and Bernstein talked about going to rip off drug dealers. Although he did not
initially agree to the plan, Bernstein was curious and wanted more information.
Subsequently, Gaul, Edwards, and Bernstein left Hambly’s house in defendant’s
car. Gaul was the driver. After approximately 40 minutes, they ended up on an
isolated dirt road. However, it turned out to be a private driveway and several
dogs came running at the car. Edwards told Gaul to immediately get out of the
driveway, so Gaul placed the car in reverse and drove away. About five to 10
minutes later, Edwards yelled “Now” or something similar. Gaul slammed on the
car’s brakes, put the car in park, and turned off the headlights. Edwards grabbed
Bernstein’s neck from behind and began to choke him. Bernstein began to
scream, but Gaul twice hit him in the side of the head or neck to keep him quiet.
Gaul accidentally hit Edwards, which loosened Edwards’s grip on Bernstein.
Bernstein opened the car door and jumped out. Edwards and Gaul got out of the
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car and chased after Bernstein. Edwards caught Bernstein and wrestled him to the
ground. Gaul held Bernstein’s legs, while Edwards choked him. Bernstein asked,
“Why?,” and Gaul said that it was because he talked too much. Gaul stopped
holding Bernstein’s legs and joined in with Edwards. Bernstein struggled for three
to five minutes, then stopped. Gaul put his ear to Bernstein’s chest to listen for a
heartbeat, but did not hear one. An autopsy on Bernstein confirmed that he had
been strangled to death.
Gaul and Edwards placed Bernstein’s body in the backseat of the car.
Edwards drove to a dark and isolated area. During the drive to this area, Gaul took
off Bernstein’s belt, which had the name “James” on it, and threw it over a cliff.
Gaul also threw Bernstein’s pager over an embankment.
When Edwards stopped the car, he and Gaul pulled Bernstein’s body out of
the backseat and put it over an embankment. Gaul and Edwards then drove back
to Anne Hambly’s house. Upon returning to Hambly’s house, Gaul, Edwards, and
Hambly discussed what had happened. Gaul and Edwards told Hambly that they
had killed Bernstein.
Anne Hambly made a phone call to defendant, who was in Cancun,
Mexico, at the time, and let her know that Bernstein was dead. Hambly did so by
using a “code” that she and defendant had agreed to. The code involved Hambly’s
calling defendant to say that Hambly had spoken to her sister. This statement was
a signal to defendant that Bernstein was dead and that it was safe for defendant to
return from Mexico.
3. Defense Case
The defense case centered on defendant’s testimony and the testimony of
her daughter, Nicole. Defendant testified that her six-year marriage to Robert
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Samuels had been stormy. Defendant claimed Samuels developed a drinking
problem and was abusive when he drank.
Defendant testified that she moved out of her residence with Robert
Samuels on October 3, 1986, because of Samuels’s drinking. According to
defendant, during the separation period, she and Samuels were able to generally
agree on subjects, such as custody, child and spousal support, as well as the
operation of the couple’s Subway restaurant. Defendant testified that she
considered reconciling, but decided not to when she learned that Samuels had
physically and sexually abused Nicole.
Despite learning that Robert Samuels had physically and sexually abused
Nicole, and physically abused her, defendant testified she never wanted to kill
Samuels and never asked anyone else to do so. She also denied involvement in
any physical attacks on Samuels, including an incident where she allegedly struck
Samuels with a pipe. She also testified that her financial situation in 1987 was
fine, even after her separation from Samuels.
With respect to Robert Samuels’s murder, Nicole Samuels denied any
involvement in a plot to murder him. She testified that Robert Samuels physically
and sexually abused her and that she moved out of her family’s home because of
this abuse. Nicole stated that she did not tell her mother of the abuse until after the
couple had separated because she was afraid that the couple would separate for
this reason. Although she testified that she told several people, including friends
and a school counselor, about these incidents, she never reported the abuse to law
enforcement officials.
With respect to the murder of James Bernstein, Nicole testified that she and
Bernstein met at a party in the beginning of 1986. Bernstein would subsequently
visit the Subway restaurant where Nicole worked and she and Bernstein developed
a friendship. For her part, defendant testified that she started to socialize with
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Bernstein toward the end of 1986. With respect to the prosecution’s allegation
that she was concerned with Bernstein speaking to the police about Samuels’s
murder, defendant testified she was not concerned because she had nothing to do
with the murder. She stated that Bernstein never threatened or blackmailed her
and that she did not want him dead, let alone conspire to have him killed.
Defendant testified she felt terrible upon learning Bernstein was dead.
B. Penalty Phase
Susan Conroy, Robert Samuels’s sister, was the only witness the
prosecution presented during the penalty phase. She testified with respect to
victim impact evidence and described her good relationship with Robert Samuels.
Defendant offered the testimony of several witnesses who attested to her
good character.
Myrna Aaron, an outreach worker for the Jewish Committee for Personal
Service, visited defendant on an ongoing basis. Aaron found defendant to be a
sensitive person and able to cheer up others despite her own circumstances. Aaron
testified that defendant would be an “invaluable source of support” for other
inmates if she were allowed to live.
Dawn Goodall, a fellow county jail inmate of defendant, testified that
defendant was a “wonderful woman” who would do much more for others if
allowed to live. She testified that defendant never exhibited a temper and tried to
break up altercations between inmates.
Jacquelyne Gunn was defendant’s fellow inmate for almost two years.
Gunn testified that defendant would give Bible study classes almost every night.
Gunn testified that when she could not afford to buy an item while in prison,
defendant would buy it for her with no expectation of anything in return. Gunn
also stated that defendant helped sick inmates by giving them soup, water, and
warm towels. Gunn confirmed that defendant would help defuse altercations
10
between inmates. Gunn also testified about an incident in prison when she
received bad news and became suicidal. Gunn called for defendant, and her
presence spiritually comforted and made Gunn feel safe. Gunn said that defendant
aligned herself with weaker inmates and her friends were all people of color.
Gunn asked the jury to let defendant live.
Defendant’s childhood friend, Barbara Favilla, testified that defendant was
fun to be with and easy to get along with. Favilla testified that she wanted to see
defendant get a life sentence.
Defendant’s first husband, Ronnie Lee Jamison, testified about their
marriage. Citing their good marriage and her redeeming values, Jamison asked the
jury to spare defendant’s life.
Stephanie Hughes, defendant’s former stepdaughter, testified that defendant
had treated her as if she were her own daughter and that they had a great
relationship. Hughes also asked the jury to allow defendant to live.
Ellen Gurnick, defendant’s mother, testified that she had throat cancer and
would be going into surgery the next day. She testified that defendant had a
normal childhood, was a popular girl, and a good enough actress to get the lead
part in a high school drama production. Although Mrs. Gurnick had not seen
defendant much since Robert Samuels’s death, she testified that she and defendant
frequently communicated via the telephone and mail. She asked the jury to spare
defendant’s life.
Alexander Gurnick, defendant’s father, testified about defendant’s
numerous friendships as a girl. He recalled defendant babysitting for her younger
brother while he and his wife worked. He asked the jury to let defendant live.
In addition, three sheriff’s deputies testified on defendant’s behalf.
Timothy Murakami, Gary Mann, and Dennis Ransom testified that they had
experienced no problems with defendant during her incarceration, although on
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cross-examination, Murakami testified he believed defendant was a manipulative
person.
II.
DISCUSSION
A. Pretrial Issues
1. Denial of Pitchess Requests
Defendant moved for discovery of the personnel records for former Police
Officer James Nowlin and Detective George Daley, which the trial court denied.
Evidence Code sections 1043 and 1045, which codified our decision in
Pitchess v. Superior Court (1974) 11 Cal.3d 531, allow discovery of certain
relevant information in peace officer personnel records on a showing of good
cause. Discovery is a two-step process. First, defendant must file a motion
supported by declarations showing good cause for discovery and materiality to the
pending case. (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 82.)
This court has held that the good cause requirement embodies a “relatively low
threshold” for discovery and the supporting declaration may include allegations
based on “information and belief.” (Id. at p. 94.) Once the defense has
established good cause, the court is required to conduct an in camera review of the
records to determine what, if any, information should be disclosed to the defense.
(Evid. Code, § 1045, subd. (b).) The statutory scheme balances two directly
conflicting interests: the peace officer’s claim to confidentiality and the
defendant’s compelling interest in all information pertinent to the defense. (City
of San Jose v. Superior Court (1993) 5 Cal.4th 47, 53.) Here, the trial court
denied defendant’s Pitchess motions. Defendant claims the court erred in denying
the motions and this error also violated her constitutional rights under the Fifth,
Sixth, and Fourteenth Amendments of the United States Constitution.
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a) James Nowlin’s records
Although James Nowlin was not involved in the murder investigation of
Samuels or Bernstein, defendant sought Nowlin’s records from the Costa Mesa
Police Department where Nowlin had been a reserve police officer. Defendant
asserted that Nowlin was violent and unstable and had a motive to kill Robert
Samuels. In support of her request, defendant alleged numerous facts including:
(1) Nowlin was initially investigated as a suspect in Samuels’s death because
Samuels had a brief sexual relationship with Nowlin’s estranged wife and Nowlin
was known to be jealous and violent; (2) Nowlin owned shotguns and had been
suspended from the Costa Mesa Reserve Police Officer Program because he fired
a handgun during an argument with his wife and then lied about the incident; (3) a
former policeman reported that Nowlin’s girlfriend had told him that Nowlin said
he had done “something very bad and that he could go to prison for a long time,”
and that Nowlin had asked the girlfriend to give him an alibi; (4) Nowlin
reconciled with his wife on the day that Samuels’s body was discovered.
The trial court denied the motion, holding that defendant failed to lay a
proper foundation under Pitchess. Here, even if the trial court erred because
defendant made a showing of good cause in support of his request (see Warrick v.
Superior Court (2005) 35 Cal.4th 1011), such error was harmless in light of the
extensive evidence linking defendant to the murders of Samuels and Bernstein.
(People v. Watson (1956) 46 Cal.2d 818, 836.)
b) Detective Daley’s records
George Daley was the homicide detective assigned to the Samuels case.
With respect to Daley, defendant claims his files “might have led to discovery of
prior instances of improper sexual advances, as the defense asserted he had made
toward defendant. Moreover, the request sought to examine prior instances of
dishonesty on any matter, which might have detracted from Daley’s credibility.”
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The trial court reviewed Daley’s records in camera and concluded there was
nothing to disclose. Regarding Daley’s file, the records were made part of the
record on appeal but were sealed, and appellate counsel has not been permitted to
view them. We have independently examined the materials and conclude the trial
court did not abuse its discretion by refusing to disclose the contents of Daley’s
personnel files. (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039.)
2. Failure to Conduct Individual Sequestered Voir Dire
The trial court rejected defendant’s request to question each juror
individually on the issue of the death penalty. Defendant contends that as a result
the trial court’s voir dire did not allow the parties to make intelligent decisions
about whether a prospective juror was qualified to sit as a juror. Defendant claims
this error violated her constitutional rights under the Sixth and Fourteenth
Amendments of the United States Constitution.
Contrary to defendant’s contention that the trial court improperly restricted
voir dire, the record shows the trial court’s voir dire was adequate. The trial court
asked the appropriate death qualifying questions required by Witherspoon v.
Illinois (1968) 391 U.S. 510 and Wainwright v. Witt (1985) 469 U.S. 412, lengthy
juror questionnaires were completed, and both sides had the opportunity to
question each prospective juror. There is no indication that the trial court abused
its discretion during voir dire. (People v. Burgener (2003) 29 Cal.4th 833, 865.)
Defendant also argues that she was entitled to individually sequestered voir
dire pursuant to our decision in Hovey v. Superior Court (1980) 28 Cal.3d 1, and
that the trial court erred in denying her request. As in the past, we reject this
argument. Proposition 115, passed June 5, 1990, enacted Code of Civil Procedure
former section 223, which abrogated our decision in Hovey. (People v. Slaughter
(2002) 27 Cal.4th 1187, 1198-1199.)
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3. Removal of Prospective Juror Robert P.
Defendant contends the trial court erroneously excused Prospective Juror
Robert P. for cause. Defendant claims this error violated her federal constitutional
rights under the Sixth, Eighth, and Fourteenth Amendments of the United States
Constitution.
The United States Supreme Court has stated that the proper standard to
excuse a juror for cause based on his or her views on capital punishment is
“whether the [prospective] juror’s views would ‘prevent or substantially impair the
performance of his duties as a juror in accordance with his instructions and his
oath.’ ” (Wainwright v. Witt, supra, 469 U.S. at p. 424.)
In his juror questionnaire Robert P. provided a series of contradictory
answers to questions regarding his views on the death penalty. For example,
although he indicated that the state should impose the death penalty on everyone
who intentionally kills another person, Robert P. admitted that he might be
tempted to find special circumstances to be false, no matter the evidence
presented, in order to avoid the death penalty question. Robert P. was also
uncertain if he could set aside his own feelings regarding what the law ought to be
and follow the law as set forth by the court. When asked how he would address a
conflict between an instruction of law and his own belief or opinion, Robert P.
wrote, “Certain beliefs I hold strongly. For those I would have to talk to him. I
may not be willing to bend.” Finally, on the final page of his questionnaire,
Robert P. wrote: “I feel the death penalty should be used in certain cases. I do not
think I could be the one to pull the switch. I have thought much about how I
would handle evidence that pointed to the death penalty. I would vote for it, but I
would not feel good about it. I cannot say until actually faced with the situation,
but I might become hesitant as the issue turns from abstract discussion to reality.”
15
During oral voir dire, Prospective Juror Robert P. also made contradictory
statements about his ability to follow the law. He initially stated he was willing to
set aside his own views and follow the law. However, when asked further about
putting aside his personal feelings and following the law as explained by the court,
Robert P. admitted that “there’s certain things that I wouldn’t be willing to bend
on . . . . I don’t know if any of those things are going to come up in this case, but I
just wanted to leave the door open just in case to say that some things might
happen. Mostly this has to do with my religious beliefs.” Further, when the
prosecutor asked if there were any situations where he would be unwilling to
follow the court’s instructions, Robert P. stated, “Yes. And I don’t know of an
example to bring up, but . . . maybe something might.” Based on our review of the
record, we find no federal error in the trial court’s excusing Robert P. for cause.
(Wainwright v. Witt, supra, 469 U.S. at p. 424.)
B. Guilt Phase Issues
1. Alleged Error in Admitting Evidence of Defendant’s Bad Character
Defendant sets forth numerous instances of alleged trial court error in
admitting character evidence. Defendant claims these evidentiary errors violated
her due process and fair trial rights under the Sixth, Eighth, and Fourteenth
Amendments of the United States Constitution. With respect to many of these
claims,2 such as those showing the lavish lifestyle defendant enjoyed after Robert
2
As noted above, these claims relate to evidence that after Robert Samuels’s
death defendant not only lived a lavish lifestyle and made extravagant purchases,
she was callous and indifferent to Samuels’s death. Evidence of defendant’s
extravagant purchases included a new Porsche automobile; costly custom clothing
from a store called “Trashy Lingerie”; scuba equipment for Dean Groover; a 30-
inch television and a car phone; and a fur coat. Additional evidence of
defendant’s lavish lifestyle included a trip to Mexico and the purchase of property
in Cancun, Mexico; a financial investment in Groover Productions; paying for the
(footnote continued on next page)
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Samuels’s death, there was no error. The evidence was relevant to prove
defendant’s financial motive for killing Samuels. (People v. Sapp (2003) 31
Cal.4th 240, 313.)
In addition, certain evidence was properly admitted to rebut defendant’s
claim that defendant was upset about Robert Samuels’s death. (See, e.g., People
v. Raley (1992) 2 Cal.4th 870, 913; People v. Barnett (1998) 17 Cal.4th 1044,
1131.) This included evidence showing that defendant did not pay for Samuels’s
funeral and that she did not give Samuels’s car or money to his brother, and
testimony from police officers who were present at the crime scene that related
how defendant dressed and acted provocatively. In addition, defendant failed to
object to the admission of this evidence, so any claims with respect to this
evidence are waived. (People v. Lewis (2001) 25 Cal.4th 610, 673.)
Also, the prosecution’s questioning of Nicole Samuels about the possibility
she stole proceeds from the Subway restaurant was not error because it was
relevant to the prosecution’s cross-examination of Nicole with respect to her
credibility.
With respect to evidence relating to defendant’s dressing in an unseemly
manner and her attempt to teach a bird how to call Detective Daley derogatory
(footnote continued from previous page)
cost of others to travel to Las Vegas, San Francisco, and Cancun; being free with
her money; throwing a birthday party for herself at a country club; using
limousines for transportation; and expending most, if not all, of the money she
received from Robert Samuels’s death within one year. Evidence of defendant’s
callousness and indifference included defendant’s posing for a photograph while
covered only in money; commencing a relationship with Dean Groover; forging
Robert Samuels’s mother’s signature; and refinancing the home she inherited after
Samuels’s death and providing fraudulent information on the related loan
documents.
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names, the trial court erred in admitting this evidence, but such error is harmless.
(People v. Watson, supra, 46 Cal.2d at p. 836.)
As to the remaining instances of alleged error in admitting character
evidence, even if the evidence was admitted in error, any error was harmless in
light of the prosecution’s extensive case against defendant.3 (People v. Watson,
supra, 46 Cal.2d at p. 836.)
Finally, after reviewing the record on appeal, we believe that any
evidentiary error by the trial court, cumulatively as well as individually, was
harmless. The prosecution presented other evidence that overwhelmingly linked
defendant to the murders of Robert Samuels and James Bernstein. This evidence
included testimony from Anne Hambly and Paul Gaul, one of Bernstein’s admitted
killers, both of whom implicated defendant in the murders. It is not reasonably
probable the jury would have reached a different result had the evidence been
excluded. The evidence about which defendant complains shows her to be an
indifferent, self-indulgent, and careless parent who set a poor example. It added
3
These instances include: defendant requested that Paul Gaul steal
paperwork for her in Mexico; defendant attended bars and clubs; defendant
received pornographic letters; defendant used drugs; defendant allowed her
daughter to drop out of high school; defendant allowed her daughter to leave the
family home at age 16; defendant took her minor daughter and her minor friends
to bars; defendant’s daughter and her daughter’s friends used drugs supplied by
defendant while at defendant’s house; defendant influenced her daughter and her
daughter’s friends to dress inappropriately; defendant allowed her daughter to take
a trip to Mexico with James Bernstein; defendant’s daughter allowed herself to be
photographed in a suggestive position; defendant’s daughter refused to return or
pay for jewelry she had “hocked” that had been bought for her by James Bernstein
with David Navarro’s credit and suggested that a false insurance claim be made;
defendant’s daughter was engaged to James Bernstein while engaged to another
man.
18
little to the compelling case against her. Accordingly, any evidentiary error was
harmless. (People v. Watson, supra, 46 Cal.2d at p. 836.) Assuming defendant’s
constitutional claims are preserved, they fail “because generally, violations of state
evidentiary rules do not rise to the level of federal constitutional error.” (People v.
Benavides (2005) 35 Cal.4th 69, 91.)
2. Alleged Judicial Bias
Defendant contends the trial court made inconsistent evidentiary rulings,
thereby demonstrating the court’s bias, and depriving her of her constitutional rights
under the Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States
Constitution. Failure to raise the issue of judicial conduct at trial waives claims of
statutory or constitutional error. Because defendant failed to raise a proper
objection, the issue is waived on appeal. (People v. Wright (1990) 52 Cal.3d 367,
411.) In any event, as set forth below, after reviewing these rulings, we reject
defendant’s claim of judicial bias. (People v. Clark (1992) 3 Cal.4th 41, 143.)
a)
Handwriting exemplar of Nicole Samuels
Defendant claims the trial court erred by preventing Nicole Samuels from
providing a handwriting exemplar. As a result of this alleged error, defendant
claims she was prevented from rehabilitating Nicole. We disagree. On cross-
examination by the prosecution, Nicole admitted to signing some checks she gave
to James Bernstein. On redirect examination, defense counsel asked Nicole if she
would be “willing, if asked by the prosecution, to give your handwriting exemplar
so it might be matched.” The prosecutor objected on relevance grounds and the
trial court upheld this objection. Defense counsel attempted to have the judge
reconsider his ruling, but he stated, “You can have a handwriting expert do the
same thing. You are forcing one side to do the other person’s work.” There was
19
no error and defendant sets forth no reason for how she was prevented from
introducing the evidence.
b) Cross-examination of Detective Daley
Defendant claims that on direct examination Detective Daley testified that
he never told witnesses or suspects any specifics about the status of the
investigation or evidence recovered. During defendant’s testimony, defense
counsel attempted to elicit testimony about references Daley made concerning the
investigation. The prosecutor objected on hearsay grounds and the court sustained
the objection. Defendant claims the prosecutor promised Detective Daley would
be recalled and asked about any disclosures. Detective Daley was recalled by the
prosecution, but defendant complains the prosecutor failed to ask Detective Daley
about any disclosures and the trial court’s rulings in this context supporting the
prosecution exhibited bias. This claim lacks merit. Defendant had the opportunity
to thoroughly cross-examine Detective Daley on this issue and to impeach his
credibility, yet failed to do so.
c) Disclosure of investigator’s interview notes
The prosecution called John Krall as a witness to testify about an incident
where defendant allegedly struck Robert Samuels with a pipe. Defendant sought
to impeach Krall with questions relating to an interview Krall had with a defense
investigator. At trial, the prosecution requested the defense to disclose any
interview notes it had with respect to this interview. Defense counsel objected,
claiming that he did not intend to call the investigator as a witness or refer to the
notes. Initially, the trial court ruled defendant must disclose the interview notes.
However, the trial court ruled it would examine the written notes to determine if
the notes contained any work product or material protected by the attorney-client
20
privilege. After doing so, the trial court held that there was no work product or
privileged material and that defendant was required to turn over the notes.
Even if the trial court erred in requiring the defendant to turn over the notes
to the prosecutor (see People v. Sanders (1995) 11 Cal.4th 475, 520), in light of
the overwhelming evidence against defendant, such error was harmless. (People
v. Watson, supra, 46 Cal.2d at p. 836.) In addition, any erroneous evidentiary
ruling by the trial court does not show that the court was biased. (Kreling v.
Superior Court (1944) 25 Cal.2d 305, 312; Scott v. Family Ministries (1976) 65
Cal.App.3d 492, 510 [“A possibly erroneous ruling on evidence does not establish
prejudice of the trial judge”].)
d) Alleged improper denial of defendant’s right to cross-
examine prosecution witness David Navarro
On cross-examination of David Navarro, defendant inquired about his
immunity agreement with the prosecution. During the course of this cross-
examination, defendant asked Navarro his opinion as to “who was the person who
determines whether your testimony is truthful?” The prosecutor objected on the
grounds that the question was asked for a legal conclusion and an improper
opinion. The trial court sustained the objection. Defendant claims she was
precluded from properly cross-examining Navarro because of this ruling and that
this ruling exemplified the court’s bias. We disagree. When the trial court
sustained the prosecution’s objection, defense counsel did not object to this ruling.
Rather, he continued with his spirited cross-examination of Navarro, including
further questions with respect to his immunity agreement with the prosecution.
There is no showing of judicial bias in this ruling nor that defendant suffered any
prejudice in cross-examining Navarro.
21
e) Impeachment of Anna Davis
On direct examination, defense witness Anna Davis testified that when she
was in a limousine with defendant, Heidi Dougall, and Anne Hambly, she saw
Dougall and Hambly use cocaine. On cross-examination, the prosecution inquired
into Davis’s use of cocaine. Defendant objected to this line of questioning
claiming it was improper impeachment. After appointing counsel for Davis, the
trial court allowed the prosecution to continue with this line of questioning. The
trial court did not commit error. As set forth above, Davis testified on direct
examination on cocaine use by Dougall and Hambly in a limousine, so defendant
initially raised the issue. On cross-examination, Davis admitted that she and
defendant also used cocaine with Dougall and Hambly. The trial court properly
allowed the cross-examination into Davis’s cocaine use because it was relevant to
Davis’s credibility. Again, defendant fails to show how this ruling shows judicial
bias.
f) Cross-examination of prosecution witness Heidi Dougall
Defendant attempted to cross-examine Heidi Dougall by inquiring about
her psychiatric hospitalization and attempted suicide. The prosecution objected on
the grounds that Dougall’s credibility was at issue, not her mental health.
Defendant claims the trial court was biased because it refused to permit any
reference to Dougall’s hospitalization or attempted suicide.
“[T]he mental illness or emotional instability of a witness can be relevant
on the issue of credibility, and a witness may be cross-examined on that subject, if
such illness affects the witness’s ability to perceive, recall or describe the events in
question.” (People v. Gurule (2002) 28 Cal.4th 557, 591-592.) Here, the record
contradicts defendant’s claims that she was not permitted to adequately cross-
examine Dougall. The trial court ruled that it was appropriate to ask Dougall
whether she had taken any medications, drugs, or alcohol that could have
22
influenced her observations. The trial court allowed defendant to inquire whether
Dougall had taken any medications that changed her powers of recollection.
Defendant was allowed to ask Dougall whether she was in the care of doctors, but
not if she was ever institutionalized. The trial court disallowed defendant’s
questioning about Dougall’s suicide attempt, stating that it was irrelevant unless
defendant could show some factor in the case was related to it. Defendant
promptly proceeded with her cross-examination of Dougall, asking questions with
respect to her treatment by doctors and her medical condition between July 1988
and December 1989.
Based on our review of the record, the trial court correctly limited
defendant’s cross-examination to questions relevant to Dougall’s credibility, and
defendant’s claim that she was precluded from making any inquiry about
Dougall’s medical condition lacks merit. Thus, there was no showing of bias with
respect to the court’s rulings on Dougall.
g) Admission of check
The trial court admitted into evidence a $1,500 check drawn from
defendant’s personal account dated October 17, 1989, and made out to “cash.”
Defendant objected on relevance grounds and that no foundation had been laid for
the check’s admission. On appeal, defendant claims this ruling was erroneous and
exhibited the trial judge’s bias. This claim lacks merit. The check was relevant
because the prosecutor set forth that the financial gain circumstances involved in
the case were still pending when this check was dated, and the check therefore
supported the prosecution’s theory of the case. But we agree with defendant that
the record is less than clear that the prosecutor laid a proper foundation for the
admission of the check. However, even if the trial court erred in admitting this
evidence, such error was harmless in light of the extensive evidence against
23
defendant and the minor effect this check would have on the jury. (People v.
Watson, supra, 46 Cal.2d at p. 836.)
h) Alleged threats to defense counsel
Defendant called her daughter, Nicole Samuels, as a witness. Nicole
testified that she had been sexually abused by Robert Samuels. On cross-
examination, the prosecutor attempted to attack Nicole’s credibility by asking her
why she waited until May 1994 to reveal this information. On redirect
examination, defendant sought to introduce testimony from Nicole about
statements she made during interviews with defense investigator Marty Jensen
with respect to the alleged sexual abuse.
Outside the presence of the jury, the prosecutor objected, claiming that
defendant failed to turn over any discovery statement pursuant to section 1054.3.
Defense counsel responded by stating no written statement from the interview
existed, so there was no disclosure requirement. After defense counsel admitted
prior knowledge about Nicole’s statements to the investigators, the trial court
noted its frustration at defense counsel for springing this information on the court
during the trial. However, the trial judge never made any threats that exhibited
bias. Although the trial judge said he would consider monetary sanctions, he
concluded they would not be effective. In fact, the trial court did not prohibit the
defense counsel from asking questions about the interview. Rather, the record
reflects defense counsel withdrew his question about Nicole’s interviews with the
investigator because he realized it would allow the prosecution to elicit testimony
from the investigator stating that she did not take any notes because she was
following the express instructions of former counsel. Defense counsel therefore
withdrew his question, not because of threats or intimidation by the trial judge, but
for strategic purposes.
24
i) Alleged improper impeachment of Nicole Samuels
Defendant claims the trial court erred by allowing Detective Daley’s
rebuttal testimony relating to Nicole Samuels’s refusal to provide any information
to the police about her alleged sexual abuse by Robert Samuels. Daley testified
that Nicole refused to cooperate, claiming the attorney-client privilege. The
defense objected to this testimony on the grounds that it was improper rebuttal
because it exposed the jury to learning that Nicole had exercised her Fifth
Amendment rights. The prosecution claimed that because Nicole testified that she
told Daley about the sexual abuse, Daley’s testimony was highly relevant to
Nicole’s credibility.
Over defendant’s objection, the trial court allowed this testimony, stating it
was a “prior inconsistent or consistent statement” with Nicole’s prior testimony
that went to the issue of credibility. Defendant alleges that because of this ruling
the trial judge “continued its role as either chief prosecutor or at least co-
prosecutor.” We disagree. There was no error in the ruling, and even if the trial
court erred in this ruling, there is no showing of bias. The record shows that after
considering the parties’ arguments the trial court simply made an evidentiary
ruling. (Kreling v. Superior Court, supra, 25 Cal.2d at p. 312; Scott v. Family
Ministries, supra, 65 Cal.App.3d at p. 510.)
j) Exclusion of Jeffrey Weiss’s testimony
Defendant claims the trial court exhibited bias by excluding the testimony
of Jeffrey Weiss. Defendant claims Weiss would have testified with respect to an
incident where he heard Nicole Samuels shout at Robert Samuels, “Keep your
hands off me. I don’t want you to touch me.” Without analysis, defendant claims
this testimony was improperly excluded and evidenced the court’s bias.
Defendant merely states, “The Court excluded this testimony, and predictably so.”
25
No basis for concluding there was judicial bias appears. Even if there was error,
such error was harmless. (People v. Watson, supra, 46 Cal.2d at p. 836.)
k) Manipulation of evidence
Defendant contends the trial court exhibited bias by manipulating evidence
of official files and reports. Defendant claims the trial court did so by making
favorable rulings to the prosecution with respect to three rulings. These rulings
related to the trial court allowing the prosecution to admit James Bernstein’s
criminal file and allowing the testimony of Los Angeles Police Detective Terry
Richardson. Detective Richardson testified about his search on the police
department’s computer database with respect to Robert Samuels and his opinion
that Robert Samuels was never arrested and never had a criminal complaint filed
by the defendant against him. Defendant also believes the trial court improperly
excluded Exhibit F, which was a police report relating to Dean Groover.
Even if these evidentiary rulings were erroneous, such error was harmless.
(People v. Watson, supra, 46 Cal.2d at p. 836.) In addition, the record is bereft of
any indication the trial court was biased in its rulings. On the contrary, the record
indicates the trial judge—as he did throughout the trial—went to great lengths to
ensure that both parties were allowed to make their arguments before he made an
evidentiary ruling. (Kreling v. Superior Court, supra, 25 Cal.2d at p. 312; Scott v.
Family Ministries, supra, 65 Cal.App.3d at p. 510.)
l) Admission of Elizabeth Kaufman’s testimony
Elizabeth Kaufman was Robert Samuels’s divorce attorney. She testified
that Samuels intended to seek a change in spousal support and permission to
operate the Subway restaurant. At trial, testimony was elicited that on the day
Samuels’s body was discovered, defendant told the police that she had a good
relationship with Samuels. In addition, defendant stated to a sheriff’s deputy that
26
she hoped that she and Samuels would get back together again. The prosecution
also introduced testimony at trial that Samuels had a “less than cordial”
relationship with defendant, had missed a support payment, and had fought with
defendant over her continuing to work at the Subway restaurant. Under all these
circumstances, the jury could reasonably infer defendant knew about, and was
angered by, Robert Samuels’s intention to finalize his divorce and reduce her
financial support—thereby providing her a motive to have him killed.
Accordingly, the challenged testimony was admissible because it was relevant to
show Robert Samuels’s state of mind concerning defendant. (People v. Smithey
(1999) 20 Cal.4th 936, 971-972.) There was no error, and necessarily no
constitutional violation.
As set forth above, despite defendant’s lengthy catalogue of alleged biases,
we conclude the record does not support any display of bias by the trial court.
(Kreling v. Superior Court, supra, 25 Cal.2d at p. 312; Scott v. Family Ministries,
supra, 65 Cal.App.3d at p. 510.)
3. Alleged Inadmissible Hearsay
a) Testimony of David Navarro, Rennie Goldberg, and
Matthew Raue
Defendant claims the trial court improperly admitted hearsay from three
witnesses with respect to their conversations with James Bernstein. These
witnesses were David Navarro, Rennie Goldberg, and Matthew Raue. Defendant
claims this error denied her rights under the Sixth, Eighth, and Fourteenth
Amendments of the United States Constitution.
(1) David Navarro’s testimony
David Navarro testified that in discussing Robert Samuels’s death,
Bernstein said, “He had done it and Mike [Silva] had helped him. And that
[defendant] had paid him.” Navarro further testified that Bernstein said defendant
27
had paid him, that Bernstein had skimmed money off the top for himself, and then
paid the balance to Mike Silva. Bernstein also told Navarro that he paid Silva in
cocaine “in lieu of the money.”
Despite the People’s contention that defendant has waived this issue, the
record reflects that defendant preserved this issue for appellate review. (People v.
Scott (1978) 21 Cal.3d 284, 290 [“In a criminal case, the objection will be deemed
preserved if, despite inadequate phrasing, the record shows that the court
understood the issue presented”].)
Nevertheless, the claim fails on the merits. Bernstein’s statement to
Navarro was properly admitted as a statement against penal interest. Under that
exception, an otherwise inadmissible hearsay statement may come into evidence if
the statement, when made, subjected the declarant to serious risk of civil or
criminal liability or to various other serious risks. (Evid. Code, § 1230.)
This case is distinguishable from People v. Duarte (2000) 24 Cal.4th 603,
612, and People v. Lawley (2002) 27 Cal.4th 102, 153-154. Unlike those cases,
which addressed multiple, severable statements, some being exculpatory and
others inculpatory, neither statement quoted above was exculpatory, self-serving,
an attempt to shift blame, or even a neutral assertion. The first sentence indicated
Bernstein was complicit in a murder; the second suggested it was a contract
killing, a particularly heinous type of murder, and that Bernstein was part of a
conspiracy to commit murder. While the reference to defendant did not, by itself,
make the second sentence more inculpatory, under the circumstances we do not
believe that the reference to defendant was a collateral assertion that must be
deliberately severed from defendant’s statement and Navarro’s testimony.
Instead, the reference was inextricably tied to and part of a specific statement
against penal interest. (See People v. Wilson (1993) 17 Cal.App.4th 271, 277.) In
addition, Bernstein’s statements were volunteered to an acquaintance and not a
28
product of police coercion, which tend to show that these statements were not
forced out of Bernstein in an attempt to exonerate himself in the face of police
pressure. In any event, even if there was any error in admitting this part of
Navarro’s statement, such error was harmless. (People v. Watson, supra, 46
Cal.2d at p. 836.)
(2) Testimony of Rennie Goldberg and Matthew Raue
Rennie Goldberg testified that in April 1989 Bernstein told him that he was
being solicited by both defendant and her daughter Nicole to have Robert Samuels
murdered and that he was considering doing so (even though Samuels had already
been killed in December 1988). Matthew Raue testified that in the spring of 1989,
Bernstein said he was approached by defendant and Nicole to help them murder
Robert Samuels. Defendant moved to exclude the testimony of Raue and
Goldberg on hearsay grounds. The prosecutor argued that the testimony was
admissible as either an admission of a coconspirator or as a statement against
Bernstein’s interest. The trial court denied this motion, ruling that the
coconspirator exception applied. Defendant claims the trial court erred by
allowing this testimony.
With respect to Bernstein’s statements made to Raue and Goldberg,
defendant is correct that none of the statements could be admitted under the
hearsay exception for statements made in furtherance of a conspiracy. Raue and
Goldberg testified that their conversations with Bernstein took place after Robert
Samuels had been murdered. Therefore, Bernstein’s statements could not have
been made in furtherance of any conspiracy.
Defendant also argues the statement against penal interest exception to the
hearsay rule is not applicable to Goldberg and Raue’s testimony. Even assuming
the admission of these statements was error, any error was harmless. (People v.
29
Watson, supra, 46 Cal.2d at p. 836.) In addition, assuming defendant’s
constitutional claim was properly preserved on appeal (see People v. Yeoman
(2003) 31 Cal.4th 93, 117, 133), it fails on the merits. (People v. Benavides,
supra, 35 Cal.4th at p. 91.)
b) Testimony of Detective George Daley
Defendant claims that Detective Daley’s testimony about Mike Silva was
inadmissible and the trial court’s error violated her Sixth, Eighth, and Fourteenth
Amendment rights under the United States Constitution. We disagree.
During the prosecution’s case-in-chief, Detective John Birrer testified that
an anonymous caller had identified Mike Silva as the hit man used by James
Bernstein to kill Robert Samuels. Detective Daley later testified that as a result of
an anonymous call to Detective Birrer, Detective Daley located and interviewed
Mike Silva.
Defendant argues that the trial court erred by allowing Detective Daley to
testify about his conversation with Detective Birrer. Defendant contends that this
testimony was hearsay and irrelevant. Because defendant failed to make a specific
and timely objection on hearsay grounds, she failed to preserve this claim for
review. (People v. Waidla, supra, 22 Cal.4th at p. 717.)
In any event, Detective Daley’s testimony was not hearsay or irrelevant. It
was not used to prove that Mike Silva killed Robert Samuels. Instead, the
testimony was used to explain Detective Daley’s reasons for obtaining search
warrants and contacting Mike Silva—subsequent action by a law enforcement
officer during his investigation into a murder. Accordingly, the trial court did not
err.
Defendant also contends that Detective Daley’s testimony should have been
excluded because it exceeded the scope of his cross-examination. It did not.
30
During Detective Daley’s cross-examination defense counsel asked questions
about Mike Silva, including whether Silva was ever arrested for Robert Samuels’s
murder. Therefore, Detective Daley’s testimony on redirect examination did not
exceed the scope of his cross-examination. (See People v. Brown (1991) 234
Cal.App.3d 918, 939.)
Defendant also claims Detective Daley should not have been allowed to
testify that Mike Silva was dead. The record indicates that Silva’s death was
relevant because defendant had placed it at issue. In fact, after acknowledging this
fact during a discussion outside of the jury’s presence, defendant requested the
prosecutor not elicit details about how Silva’s death occurred. The trial court then
directed the prosecutor not to elicit details on Silva’s death. Thus, defendant is
barred from challenging this testimony. (People v. Gutierrez (2002) 28 Cal.4th
1083, 1139.) Finally, assuming defendant’s constitutional claim was properly
preserved on appeal (see People v. Yeoman, supra, 31 Cal.4th at pp. 117, 133), no
constitutional or other error occurred.
c) Testimony of Elizabeth Kaufman and Susan Conroy
As set forth above, Elizabeth Kaufman was Robert Samuels’s divorce
attorney. She testified that Samuels intended to seek a change in spousal support
and court permission to operate the Subway restaurant. Susan Conroy was
Samuels’s sister. Conroy testified that Samuels told her that he intended to
finalize his divorce from defendant. Defendant contends the trial court erred by
admitting Samuels’s statements to Kaufman and Conroy with respect to Samuels’s
intent to seek a change in spousal support and to finalize his divorce from
defendant. Defendant claims these statements were inadmissible because they
were hearsay, irrelevant, and violated her constitutional rights under the Sixth,
31
Eighth, and Fourteenth Amendments of the United States Constitution. Defendant
objected on hearsay grounds, but not on constitutional grounds.
For the reasons set forth in part B.2.l. (ante, at pp. 26-27), the trial court
properly admitted this testimony. In addition, assuming defendant’s constitutional
claim was properly preserved on appeal (see People v. Yeoman, supra, 31 Cal.4th
at pp. 117, 133), no constitutional or other error occurred.
4. Alleged Error in Admitting Photographs
Defendant argues that the trial court erred by admitting certain photographs
of Robert Samuels, thereby violating her constitutional rights under the Eighth and
Fourteenth Amendments of the United States Constitution. Defendant argued at
trial that the photographs were cumulative, offensive, and had no probative value.
“The admission of photographs of a victim lies within the broad discretion
of the trial court when a claim is made that they are unduly gruesome or
inflammatory. [Citations.] The court’s exercise of that discretion will not be
disturbed on appeal unless the probative value of the photographs clearly is
outweighed by their prejudicial effect. [Citations.]” (People v. Crittenden (1994)
9 Cal.4th 83, 133-134.)
The autopsy photographs depicted Robert Samuels’s body as it lay on a
table in the county morgue. The photographs depict that Samuels was shot in the
back of the head by a shotgun and were relevant to illustrate and corroborate the
testimony supplied by Dr. Christopher Rogers, Deputy Medical Examiner for Los
Angeles County. Dr. Rogers testified for the prosecution with respect to Robert
Samuels’s autopsy and established the manner in which Samuels was killed and
other relevant matters. (People v. Crittenden, supra, 9 Cal.4th at p. 132.)
Nor was the probative value of the autopsy photographs clearly outweighed
by their prejudicial effect. “We have described the ‘prejudice’ referred to in
32
Evidence Code section 352 as characterizing evidence that uniquely tends to
evoke an emotional bias against a party as an individual, while having only slight
probative value with regard to the issues. [Citation.] As we previously have
observed, victim photographs and other graphic items of evidence in murder cases
always are disturbing. [Citation.]” (People v. Crittenden, supra, 9 Cal.4th at
p. 134.)
Our independent review of the photographs leads to the conclusion that,
although the photographs are unpleasant, they are not unduly shocking or
inflammatory. Accordingly, the trial court did not abuse its discretion in admitting
the photographs.
To the extent defendant also argues that the photographs are cumulative, we
reject her argument. (People v. Crittenden, supra, 9 Cal.4th at pp. 134-135 [“We
often have rejected the contention that photographs of a murder victim must be
excluded as cumulative simply because testimony also has been introduced to
prove the facts that the photographs are intended to establish”].) In addition,
assuming defendant’s constitutional claim was properly preserved on appeal (see
People v. Yeoman, supra, 31 Cal.4th at pp. 117, 133), it fails on the merits.
5. Alleged Prosecutorial Misconduct in Questioning Witnesses
Defendant contends the prosecutor committed misconduct by injecting
inadmissible evidence at trial and then abandoning it after the jury was
contaminated. She claims her rights under the Fifth, Sixth, Eighth, and Fourteenth
Amendments of the federal Constitution were violated. Defendant failed to object
or seek a curative admonition, therefore this issue is waived on appeal. (People v.
Brown (2004) 33 Cal.4th 382, 398-399.) However, there is no error.
“ ‘A prosecutor’s . . . intemperate behavior violates the federal Constitution
when it comprises a pattern of conduct “so egregious that it infects the trial with
33
such unfairness as to make the conviction a denial of due process.” ’ ” (People v.
Gionis (1995) 9 Cal.4th 1196, 1214.) “ ‘Conduct by a prosecutor that does not
render a criminal trial fundamentally unfair is prosecutorial misconduct under state
law only if it involves “ ‘ “the use of deceptive or reprehensible methods to
attempt to persuade either the court or the jury.” ’ ” ’ ” (People v. Ochoa (1998)
19 Cal.4th 353, 427.) Finally, “when the claim focuses upon comments made by
the prosecutor before the jury, the question is whether there is a reasonable
likelihood that the jury construed or applied any of the complained-of remarks in
an objectionable fashion.” (People v. Samayoa (1997) 15 Cal.4th 795, 841.)
Defendant cites several incidents at trial where the prosecutor allegedly
committed misconduct.
a) Impeachment of Robert Birney
Robert Birney, a defense investigator, testified on behalf of defendant.
Birney testified that he had been a police officer for the City of Los Angeles for
approximately 21 years. On cross-examination, the prosecutor asked Birney if he
had ever been suspended from his duties with the Los Angeles Police Department.
Defendant objected and the parties discussed the matter outside of the jury’s
presence. The prosecutor stated that a former colleague of Birney had informed
her that Birney had been suspended for improper conduct with respect to a suspect
he once booked and his involvement with an underage female related to that
suspect. This suspension allegedly occurred 10 or 11 years earlier.
Outside of the jury’s presence, Birney testified that he recalled an incident
similar to the one described by the prosecutor. However, Birney stated that he was
not suspended and had not taken any voluntary days off because of this incident.
The prosecutor stated that she would call the source as a witness to impeach
Birney’s testimony. The prosecutor then withdrew her question until other
34
witnesses could be called or she could prepare a motion pursuant to Pitchess v.
Superior Court, supra, 11 Cal.3d 531. On redirect examination, Birney testified
that he had not been suspended.
Although defendant objected to the prosecutor’s question about Birney’s
alleged suspension, defendant failed to request an admonition. (See People v.
Brown, supra, 33 Cal.4th at pp. 398-399.) Nevertheless, there was no misconduct.
Birney’s admission that there was an incident that was investigated shows that
there was some good faith basis for the prosecutor asking whether he was
suspended as a result of the investigation. In addition, the prosecution’s
withdrawal of the question combined with Birney’s testimony stating that he was
never suspended do not lead to a reasonable likelihood that the jury construed or
applied any of the complained-of remarks in an objectionable fashion. (People v.
Prieto (2003) 30 Cal.4th 226, 260.)
b) Cross-examination of Nicole Samuels and handwriting
exemplars
On cross-examination by the prosecution, Nicole Samuels admitted to
signing some checks she gave to James Bernstein. Defendant claims that the
prosecutor committed misconduct by preventing Nicole from providing a
handwriting exemplar showing that certain sections of the checks were not in her
handwriting. As a result of this alleged misconduct, defendant claims the
prosecutor prevented Nicole Samuels from rehabilitating herself. We disagree.
The relevant factual context is recounted above. (See ante, at pp. 19-20.)
For the reasons stated in our rejection of defendant’s claim of judicial bias, there is
also no prosecutorial misconduct based on the prosecutor’s relevance objection.
Again, defendant was free to seek a handwriting sample from Nicole and have an
expert testify as to any discrepancies between the exemplar and the check.
35
c) Alleged preclusion of impeachment of Detective Daley
For the reasons set forth in part B.2.b (ante, at p. 20), we reject defendant’s
contention that the prosecutor committed misconduct by precluding defendant
from impeaching Detective Daley.
d) Alleged improper cross-examination of defense witness
Annette Bunnin-Church
Defendant
claims
the
prosecution
improperly cross-examined defense
witness Annette Bunnin-Church by asking her questions about defendant’s
character for truth and veracity. Defendant failed to raise objections to the initial
questions about her character and, even after defendant objected, she failed to
request a timely admonition, which would have cured any prejudice from the
alleged misconduct. Accordingly, she cannot raise this claim on appeal. (People
v. Prieto, supra, 30 Cal.4th at pp. 259-260.)
On the merits, the record indicates the prosecutor did not introduce
improper subject matter into Bunnin-Church’s cross-examination. Bunnin-
Church’s testimony stating that she never had doubts about defendant’s
truthfulness does not lead to the conclusion that there is a reasonable likelihood
the jury construed or applied any of the complained-of remarks in an objectionable
fashion. (People v. Prieto, supra, 30 Cal.4th at p. 260.) There was no
misconduct.
6. Alleged Error in Failing to Grant Immunity to Wanda Piety
Paul Gaul testified for the prosecution pursuant to a plea agreement. He
recalled a conversation that took place on a sheriff’s bus with defendant. Gaul
testified defendant stated she understood that he was testifying against her because
he was given no choice. Gaul also testified that defendant said, “You’re the only
one who can cut me loose. You already—I know you took your deal. You can cut
36
me loose.” Gaul testified that he told defendant that this was not the case and that
he was simply telling the truth.
To impeach Gaul’s testimony, defendant attempted to call Wanda Piety.
Piety was also present on the bus during the conversation between Gaul and
defendant and allegedly heard Gaul tell defendant that he knew she was innocent,
but that he had to testify against her in order to get his plea agreement. However,
when faced with the possibility of being cross-examined by the prosecution, Piety
advised the court that she would assert her Fifth Amendment rights. The defense
then moved the court to grant Piety immunity, which the court denied.
Defendant
claims
the
prosecutor committed misconduct by not granting
Piety immunity, thereby subjecting Piety to possible cross-examination with
respect to the facts of her own case. We have previously stated, “[A]lthough the
prosecution has a statutory right, incident to its charging authority, to grant
immunity and thereby compel testimony [citation], California cases have
uniformly rejected claims that a criminal defendant has the same power to compel
testimony by forcing the prosecution to grant immunity.” (In re Williams (1994) 7
Cal.4th 572, 609.) Accordingly, the prosecutor did not commit misconduct.
Defendant also claims the trial court’s failure to grant Piety immunity
compounded the prosecutor’s alleged misconduct and violated defendant’s Fifth,
Sixth, Eighth, and Fourteenth Amendment rights under the federal Constitution.
“[O]ur court [has] characterized as ‘doubtful’ the ‘proposition that the trial
court [possesses] inherent authority to grant immunity.’ [Citations.]” (People v.
Stewart, supra, 33 Cal.4th at p. 468.) However, we have stated that it is “possible
to hypothesize cases” where “judicially conferred use immunity might possibly be
necessary to vindicate a criminal defendant’s rights to compulsory process and a
fair trial.” (People v. Hunter (1989) 49 Cal.3d 957, 974.) To the extent we
assume there is such a judicial authority, we hold that the trial court properly
37
denied defendant’s request. Piety’s testimony would have been cumulative of
testimony previously offered by other witnesses, such as Susan Jasso, who
testified that she heard the same conversation that Piety would have described.
(Stewart, at p. 470.) In addition, in light of Jasso’s testimony, Piety’s testimony
was not essential. (Id. at p. 469.)
7. Alleged Error with Respect to Polygraph Evidence
Defendant argues the prosecutor committed misconduct by improperly
using evidence relating to polygraph examinations in violation of the Fifth, Sixth,
Eighth, and Fourteenth Amendments of the United States Constitution. The
prosecution was allowed to present testimony with respect to defendant’s lack of
cooperation with the police during the investigation of Robert Samuels’s death.
However, the trial court refused to allow her to present evidence of her willingness
to submit to, and her successful completion of, a polygraph test. Defendant argues
such evidence would have contradicted the prosecution’s claim that she was not
cooperative during the investigation. This claim lacks merit since polygraph
evidence, absent a stipulation by all parties, is not admissible. (Evid. Code,
§ 351.1; People v. Wilkinson (2004) 33 Cal.4th 821, 849-852.)
Defendant also argues the prosecutor committed misconduct by eliciting
testimony from Marsha Hutchinson that related to statements defendant made to
her about how to “beat” a polygraph test. There was no misconduct. The trial
court properly admitted this testimony on the basis that it demonstrated
defendant’s consciousness of guilt. (People v. Jackson (1996) 13 Cal.4th 1164,
1224.) Even if there was misconduct, the admission of such evidence could not be
prejudicial under any standard given the ample evidence against defendant.
38
8. Alleged Prosecutorial Misconduct with Respect to Injecting
Misleading Testimony
Defendant contends the prosecutor committed misconduct and violated
certain of her constitutional rights by injecting the false and misleading testimony
of Detective George Daley with respect to a conversation between defendant and
James Bernstein. Daley’s disputed testimony relates to discussions between
defendant and Bernstein that Daley overheard and recorded at a police station.
These statements involved someone named “Dave” who had approached
defendant at a nightclub and agreed to kill Robert Samuels for money. In addition,
Daley testified that the conversation between defendant and Bernstein was
“cordial and suspicious.”
“[A]s a general rule, to preserve a claim of prosecutorial misconduct, the
defense must make a timely objection and request an admonition to cure any
harm.” (People v. Brown, supra, 33 Cal.4th at pp. 298-299.) Defendant failed to
object to the alleged prosecutorial misconduct or to request an admonition.
Accordingly, defendant has failed to preserve this claim.
Nonetheless, defendant’s claim also lacks merit. Defendant merely
assumes Daley misremembered or misrepresented the conversation, and that this
problem could have been avoided had the trial court admitted the conversation in
recorded and transcribed form. As set forth (post, at pp. 40-42), the trial court
properly excluded the tape and transcription of the conversation. In any event,
such an assumption is speculative as it appears defense counsel’s vigorous
questioning of Daley failed to show that Daley’s testimony was false or
misleading.
39
9. Improper Exclusion of Taped Conversation
a) Best evidence rule
Defendant contends the trial court violated Evidence Code section 1521 by
permitting Detective Daley to testify, during the prosecution’s case, with respect
to a recorded prearrest conversation between defendant and James Bernstein.4
Defendant claims this error violated her constitutional rights under the Sixth and
Fourteenth Amendments of the United States Constitution. On appeal, defendant
claims the tape of the entire conversation should have been admitted under the
secondary evidence rule, codified in Evidence Code section 1520 et seq. We
disagree.
The secondary evidence rule was not effective until January 1, 1999. Since
the instant trial commenced prior to January 1, 1999, the secondary evidence rule
is not applicable. Accordingly, we apply the law that was applicable at the time,
Evidence Code former section 1500 et seq.,5 commonly referred to as the “best
evidence rule.” (See In re Kirk (1999) 74 Cal.App.4th 1066, 1073.)
Applying the best evidence rule to this case, “[i]t is well settled that where
both a tape recording of a conversation and a witness to the conversation are
available at trial, the testimony of the witness is not barred by the best evidence
rule. [Citations.]” (People v. Patton (1976) 63 Cal.App.3d 211, 220.) We have
stated, “The so-called best evidence rule is inapplicable under such circumstances.
Since the officer was testifying to what he had seen and heard, his testimony was
4
Detective Daley interviewed Bernstein at the police station on April 24,
1989. After this interview, Daley asked defendant to come to the police station.
Daley placed defendant and Bernstein in the same room and listened to their
conversation from a monitoring room in the police station.
5
Evidence Code sections 1500 to 1511 were effective until January 1, 1999.
(Stats. 1998, ch. 100, § 1.)
40
‘primary evidence’ whether or not ‘part of the same matter was incorporated into a
sound recording.’ [Citation.] In other words, he was not testifying as to what the
recording contained but ‘as to what he observed and knew because he heard it. . . .
[His] testimony . . . is not rendered incompetent by the fact of the existence of the
[recording].’ [Citations.]” (People v. Sweeney (1960) 55 Cal.2d 27, 38.)
Assuming
defendant’s
constitutional
claim was properly preserved on
appeal (see People v. Yeoman, supra, 31 Cal.4th at pp. 117, 133), it fails on the
merits.
b) Rule of completeness
Defendant further contends the trial court erred and violated her
constitutional rights under the Sixth, Eighth, and Fourteenth Amendments of the
federal Constitution by denying her motion to admit the entire tape recording and
transcript of the conversation between defendant and James Bernstein under
Evidence Code section 356. That section provides: “Where part of an act,
declaration, conversation, or writing is given in evidence by one party, the whole
on the same subject may be inquired into by an adverse party; when a letter is
read, the answer may be given; and when a detached act, declaration,
conversation, or writing is given in evidence, any other act, declaration,
conversation, or writing which is necessary to make it understood may also be
given in evidence.”
The purpose of Evidence Code section 356 is to avoid creating a misleading
impression. (People v. Arias (1996) 13 Cal.4th 92, 156.) It applies only to
statements that have some bearing upon, or connection with, the portion of the
conversation originally introduced. (People v. Zapien (1993) 4 Cal.4th 929, 959.)
Statements pertaining to other matters may be excluded. (People v. Williams
(1975) 13 Cal.3d 559, 565.)
41
At trial, defendant sought to introduce the entire tape of the conversation,
which covered areas outside of Detective Daley’s testimony. The prosecution
objected on hearsay grounds, and the trial court sustained the prosecution’s
objection. In addition, the trial court stated the tape was too long and would
confuse the jury. The trial court informed defendant that she was free to seek
admission of those portions of the tape that were purportedly relevant. The record
indicates defendant failed to do so. There was no error.
10. Alleged Instructional Error
a) Definition of reasonable doubt
Defendant
contends
that CALJIC No. 2.90, defining reasonable doubt, is a
violation of her due process rights under the Fourteenth Amendment of the United
States Constitution. We have rejected this argument in the past and find no
persuasive reason to revisit the issue. (People v. Seaton (2001) 26 Cal.4th 598,
667-668.)
b) CALJIC No. 2.01
Defendant argues that the trial court erred by instructing the jury with
CALJIC No. 2.01, because it undermined the requirement of proof beyond a
reasonable doubt. Defendant claims this error violated her constitutional rights
under the Fifth, Sixth, and Fourteenth Amendments of the federal Constitution.
Defendant claims the instruction directed jurors to accept an incriminating
interpretation of the evidence if it appeared to be reasonable, thereby allowing a
conviction based on an appearance of guilt.
Defendant acknowledges we have previously held that “these instructions
properly direct the jury to accept an interpretation of the evidence favorable to the
prosecution and unfavorable to the defense only if no other ‘reasonable’
interpretation can be drawn. Particularly when viewed in conjunction with other
42
instructions correctly stating the prosecution’s burden to prove defendant’s guilt
beyond a reasonable doubt, these circumstantial evidence instructions do not
reduce or weaken the prosecution’s constitutionally mandated burden of proof or
amount to an improper mandatory presumption of guilt. [Citations.]” (People v.
Kipp (1998) 18 Cal.4th 349, 375.) We see no reason to revisit the question and
reject defendant’s claim.
C. Penalty Phase Issues
1. Removal of Juror Audrey W.
Defendant claims the trial court erred by removing Juror Audrey W. during
the penalty phase deliberations. Defendant argues this error violated her
constitutional rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments of
the United States Constitution.
Section 1089 provides in pertinent part: “If at any time, whether before or
after the final submission of the case to the jury, a juror dies or becomes ill, or
upon other good cause shown to the court is found to be unable to perform his or
her duty, or if a juror requests a discharge and good cause appears therefor, the
court may order the juror to be discharged and draw the name of an alternate, who
shall then take a place in the jury box, and be subject to the same rules and
regulations as though the alternate juror had been selected as one of the original
jurors.” “ ‘We review for abuse of discretion the trial court’s determination to
discharge a juror and order an alternate to serve. [Citation.] If there is any
substantial evidence supporting the trial court’s ruling, we will uphold it.
[Citation.] We also have stated, however, that a juror’s inability to perform as a
juror must “ ‘appear in the record as a demonstrable reality.’ ” [Citation.]’ ”
(People v. Cleveland (2001) 25 Cal.4th 466, 474.) We have also stated a court
43
may remove a juror “who becomes physically or emotionally unable to continue to
serve as a juror due to illness or other circumstances.” (Ibid.)
Substantial evidence supports the trial court’s decision. Here, Audrey W.
requested that she be removed from the jury. In a letter to the court, Audrey W.
wrote, “I have come to realize that I have serious questions about my ability to
vote for the death penalty should I become convinced of its appropriateness in this
case. I have not been able to resolve this conflict to my own satisfaction.”
When questioned by the parties and the trial judge about her situation,
Audrey W. provided statements indicating she would not be able to perform her
duty as a juror. For example, when asked by the prosecutor whether she was “at
the point now where you believe that perhaps you would under no circumstances
ever be able to impose the death penalty in a case where you thought it was
appropriate,” Audrey W. stated, “Well, that’s where I am afraid that I might not
have the courage to do that. I think I explained to you on the form and also when I
was questioned, theoretically I do believe in the death penalty. I was concerned
about whether I would be able to act on it. And when I actually found myself
faced with an actual case and having to consider that, I just found that it was—I
was just afraid that I wouldn’t be able to do that.” The prosecutor then followed
up by asking, “Is that what you are finding now, that you are just not able to
consider it?” Audrey W. answered, “I’m afraid that I couldn’t act on it.”
Audrey W. also could not separate her discomfort over the death penalty
from the facts and circumstances of the case. She stated, “I can’t separate them
and that’s—that is what is causing me the issue right now. It was not a problem
before I was able to keep them separate but now I’ve got that so I can’t get them
separated out.”
In addition, when asked by the prosecutor whether her physical, emotional,
or mental state was being impaired or would be impaired if she continued to
44
deliberate, she stated that she “was not in a good place to continue.” The court
determined that “there was enough there to raise some red flags in my concern.”
Accordingly, the record reflects that Audrey W. was distressed and
volunteered to the court that she could not follow her oath and instructions to
consider imposition of the death penalty in this case. She also admitted she lacked
“courage” to impose the ultimate punishment if appropriate under all the
circumstances, and that she feared she “couldn’t act” on her obligation to do so.
Therefore, after a meaningful inquiry, the trial court credited Audrey W.’s
expressions of her state of mind and determined there was a demonstrable reality
that she was unable to perform as a juror. We defer to this finding and the
underlying record. The trial court did not abuse its discretion by dismissing
Audrey W. (People v. Cleveland, supra, 25 Cal.4th at p. 474.)
2. Alleged Prosecutorial Misconduct
a) Closing argument
Defendant
claims
the
prosecutor committed misconduct by improperly
referring to defendant’s bad character, in violation of her constitutional rights
under the Sixth, Eighth, and Fourteenth Amendments of the United States
Constitution. We disagree. “The claim was waived by [defendant’s] failure to
object to the statement at trial. [Citation.]” (People v. Staten (2000) 24 Cal.4th
434, 465.) The claim also lacks merit. Defendant mischaracterizes the
prosecutor’s statements. The comments at issue were part of the prosecutor’s
argument that defendant had failed to show any remorse. We have “consistently
rejected claims of prosecutorial misconduct based on a prosecutor’s reference to
the defendant’s lack of remorse.” (People v. Lewis (2001) 25 Cal.4th 610, 673.)
45
b) Biblical references
Defendant also claims that, over her objections, the prosecutor committed
misconduct by referring to the Bible.6 Defendant claims that as a result of this
misconduct, her constitutional rights under the Sixth, Eighth and Fourteenth
Amendments of the United States Constitution were violated.
We have previously stated, “ ‘[t]he primary vice in referring to the Bible
and other religious authority is that such argument may “diminish the jury’s sense
of responsibility for its verdict and . . . imply that another, higher law should be
applied in capital cases, displacing the law in the court’s instructions.” ’
[Citations.]” (People v. Hughes (2002) 27 Cal.4th 287, 389.)
Even if the prosecutor’s argument was error, such error was harmless.
(People v. Slaughter (2002) 27 Cal.4th 1187, 1211.) The prosecutor’s biblical
argument was only a small part of her argument, the bulk of which focused on
arguing to the jury why it should find that the statutory aggravating factors
outweighed the mitigating factors.
6
In referring to the Bible, the prosecutor stated: “Genesis chapter 9, verse 6;
Exodus chapter 21, verse 12; and the Book of Numbers chapter 35, verse 31 all
repeat the same basic message: ‘Whoever sheds the blood of man, by man shall
his blood be shed, for in his image did God make man.’ . . . ‘He who fatally strikes
a man shall be put to death.’ Exodus even answers a common defense argument
that only God can take a life. ‘It is not [sic] man, not God, who is to execute
murderers. By man shall his, murderers blood be shed.’ Although some look to
the New Testament and quote, ‘Vengeance is mine, I will repay saith the Lord,’ in
the very next chapter, Romans, Paul calls for capital punishment by saying, ‘The
ruler bears not the sword—’ . . . ‘—the sword in vain for he is the minister God, a
revenger to execute wrath upon him that doeth evil.’ ”
46
c) Prosecutor’s alleged statements suggesting ultimate
responsibility for imposing the death penalty did not rest
with the jury
Defendant claims that the prosecutor committed misconduct by suggesting
that the ultimate responsibility for imposing the death penalty did not rest with the
jury. Defendant bases this argument on references the prosecutor made to
defendant’s appellate rights and the Governor’s power of commutation, and argues
that such references should have resulted in the trial court granting her motion for
a mistrial.
The first statement defendant relies on was made when the prosecutor
contrasted the imposition of the death penalty as so-called state-sanctioned murder
with the killing of Robert Samuels. The prosecutor said, “It seems somewhat
incredible that some people can’t grasp the moral difference between the taking of
an innocent life and the state enforcing laws and taking a life. [¶] The defendant
has had all of the guarantees that our system of justice has entitled her to. She has
had her preliminary hearing. She has had a fair trial. She has had a penalty phase.
She will have appellate review. What rights did the victims have?” The other
statement was made by the prosecutor in anticipation that defense counsel would
argue “that there are others in California who have committed far more brutal
crimes who didn’t get the death penalty.” The prosecutor stated, “Well the fact of
the matter is in California the death penalty is the law of the land. That’s not true
in all states. Even in California there was a time when the death penalty was
repealed and all those on death row had their sentences commuted. Now please
don’t misunderstand me, I’m not suggesting that that will happen in this case.
You cannot consider that and that’s not the reason I bring it up. The only reason I
bring it up is to suggest to you that such analogies and such comparisons are not
fair.”
47
Here, there is no reasonable likelihood a juror would have understood the
prosecutor as suggesting that the responsibility for imposing a death sentence
rested elsewhere. (Caldwell v. Mississippi (1985) 472 U.S. 320, 328-329.) There
was no misconduct and there was no basis for the trial court to grant defendant’s
request for a mistrial.
3. Alleged Instructional Error
a) Meaning of life imprisonment without the possibility of
parole
Defendant claims that the trial court erroneously instructed the jury on the
meaning of life imprisonment without the possibility of parole in violation of her
constitutional rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments of
the United States Constitution. We reject this claim.
Here, the trial court read to the jury CALJIC No. 8.84, which stated that
defendant’s punishment would be “death or confinement in the state prison for life
without the possibility of parole . . . .” Our cases hold that CALJIC No. 8.84
adequately informs the jury of defendant’s ineligibility for parole. (People v.
Prieto, supra, 30 Cal.4th at pp. 269-271.)
Defendant seeks to distinguish Prieto on the ground that here the jury
manifested some confusion as to the meaning of life imprisonment without the
possibility of parole, as evidenced by its note to the judge asking, “Does ‘without
the possibility of parole’ mean no chance of parole—ever!” After receiving this
note, the trial court conferred with counsel and, over defendant’s objection,
decided to repeat its prior instructions. The trial court stated it would reiterate
these instructions and “see what happens.” The trial court stated, “If they ask a
further question, they’ll get a further answer.”
In so holding, we follow People v. Bonillas (1989) 48 Cal.3d 757, 798, and
People v. Silva (1988) 45 Cal.3d 604, 641, in which we observed no prejudicial
48
error in refusals to respond to comparable jury requests for clarification as to the
possibility of defendant’s release from prison. Here, as there, “[t]he [court’s]
response left the jury in the same position as when the jury asked the question—
i.e., uncertain of the answers. It is inconceivable that such uncertainty affected the
jury’s penalty verdict.” (Silva, at p. 641.) Unlike the situation in Prieto, here the
jury expressed confusion regarding CALJIC No. 8.84’s meaning. However, we
reject defendant’s claim because the trial court’s refusal to respond more fully to
the jury’s questions did not constitute prejudicial error.
b) Use of special verdict forms
Defendant was found guilty of count 1, the first degree murder of James
Bernstein. The jury failed to reach a verdict on the special circumstance allegation
that the murder was committed for financial gain under section 190, subdivision
(a)(1). Defendant was also found guilty of the first degree murder of Robert
Samuels as set forth in count 2. The jury found that defendant committed this
murder for financial gain under section 190, subdivision (a)(1). In addition, the
jury found “the allegation that the offenses charged in Counts I and II are a special
circumstance within the meaning of Penal Code section 190.2(a)(3) [multiple
murder] to be true.”
Over defendant’s objection, the jury was given separate verdict forms for
counts 1 and 2. The verdict form relating to count 1 read: “We the jury in the
above entitled action, having found the defendant, Mary Ellen Samuels, guilty of
the crime of murder in the first degree and the special circumstance of multiple
murder to be true as related to Count I of the information, hereby fix the penalty
at: death.” The verdict form for count 2 stated: “We the jury in the above entitled
action, having found the defendant, Mary Ellen Samuels, guilty of the crime of
murder in the first degree and the special circumstances of multiple murder and
49
murder for financial gain to be true as related to Count II of the information,
hereby fix the penalty at: death.”
On appeal, defendant argues that the use of separate verdict forms misled
the jury by stating that the jury had found—at the guilt phase—a special
circumstance for multiple murder for count 1. Defendant also claims this error
violated her constitutional rights under the Sixth, Eighth, and Fourteenth
Amendments of the United States Constitution. Defendant’s argument rests on a
faulty factual premise. The jury found defendant guilty of multiple murder under
section 190.2, subdivision (a)(3) based on the allegations set forth in counts 1 and
2. In addition, the trial court instructed the jury that it could consider the multiple-
murder special circumstance only once. The jury was not misled and the trial
court did not commit any error. In addition, assuming defendant’s constitutional
claim was properly preserved on appeal (see People v. Yeoman, supra, 31 Cal.4th
at pp. 117, 133), it fails on the merits.
c) Alleged instructional error in the death selection process
used to condemn defendant
Defendant further claims section 190.3, factor (a), which allows the
consideration of the circumstances of her crime in the penalty phase, has been
applied so arbitrarily and capriciously that its application in her case violated the
state and federal Constitutions. We have rejected this claim in prior decisions, and
defendant has failed to offer grounds for reconsidering those holdings. (People v.
Jenkins (2000) 22 Cal.4th 900, 1050-1053.)
Nor was the trial court required to delete any inapplicable factors from the
penalty phase instructions (People v. Taylor (2001) 26 Cal.4th 1155, 1179-1180),
designate aggravating and mitigating factors (id. at p. 1180), or submit written
findings and reasons for its death verdict (People v. Jenkins, supra, 22 Cal.4th at
p. 1053).
50
Defendant claims the trial court did not adequately define the meaning of
the term “mitigating.” Defendant contends that CALJIC No. 8.88 as read to the
jury was reasonably likely to lead the jury to believe it was limited by the type of
mitigating evidence it could consider. We have previously rejected this argument
and do so again. (People v. Taylor, supra, 26 Cal.4th at pp. 1180-1181.)
In addition, defendant claims the trial court should have instructed the jury
that if the factors in aggravation did not outweigh the factors in mitigation, then it
should return a sentence of life imprisonment without the possibility of
parole. We reject this claim. (People v. Duncan (1991) 53 Cal.3d 955, 978.)
d) Alleged trial court error by failing to instruct jury on core
adjudicative principles
We also conclude there is no constitutional requirement that the jury be
instructed concerning the burden of proof—whether beyond a reasonable doubt or
by a preponderance of the evidence—as to the existence of aggravating
circumstances (other than other-crimes evidence), the greater weight of
aggravating circumstances over mitigating circumstances, or the appropriateness
of a death sentence, and no requirement that the jury achieve unanimity as to the
aggravating circumstances. (People v. Jenkins, supra, 22 Cal.4th at pp. 1053-
1054.) Recent United States Supreme Court decisions in Apprendi v. New Jersey
(2000) 530 U.S. 466 and Ring v. Arizona (2002) 536 U.S. 584, have not altered
our conclusions regarding the burden of proof or jury unanimity. (See People v.
Prieto, supra, 30 Cal.4th at pp. 263, 275.)
We also reject defendant’s argument that the court’s failure to instruct the
jury on the presumption of life violated the state and federal Constitutions. (See,
e.g., People v. Hughes, supra, 27 Cal.4th at p. 404.)
51
4. Constitutional Claims
We reject defendant’s claim that the death penalty law is unconstitutional
by failing to adequately narrow the class of death-eligible offenders. (People v.
Prieto, supra, 30 Cal.4th at p. 276.) We also reject defendant’s claim that the
death penalty law is constitutionally deficient because the prosecution retains
discretion whether to seek the death penalty. (People v. Koontz (2002) 27 Cal.4th
1041, 1095.)
In addition, “[i]ntercase proportionality review is not required.” (People v.
Combs (2004) 34 Cal.4th 821, 868.) We similarly reject defendant’s claims that
the state and federal Constitutions are violated by the alleged influence of political
pressure on this court in determining capital appeals. There is no basis for this
claim and we have previously rejected it. (People v. Kipp, supra, 26 Cal.4th at
pp. 1140-1141.)
5. Alleged Cumulative Error
Defendant argues that the cumulative effect of the errors at his penalty trial
requires reversal of his death sentence. We disagree. Any errors we have found
are no more compelling when considered in combination. Their cumulative effect
does not warrant reversal of the judgment.
52
III.
DISPOSITION
We affirm the judgment in its entirety.
BROWN, J.
WE CONCUR:
GEORGE,
C.J.
BAXTER,
J.
CHIN,
J.
MORENO,
J.
53
CONCURRING OPINION BY WERDEGAR, J.
Having found no error requiring reversal, I concur in the majority’s
decision to affirm the judgment. I write separately, however, to suggest the time
has come to modify our position concerning whether a jury in a capital case should
be completely informed of the meaning of life imprisonment without the
possibility of parole.
The trial court in this case delivered CALJIC No. 8.84, the standard jury
instruction concerning the penalties applicable in a capital case. That instruction
states in pertinent part: “It is the law of this state that the penalty for a defendant
found guilty of murder of the first degree shall be death or imprisonment in the
state prison for life without possibility of parole in any case in which the special
circumstance[s] alleged in this case [has] [have] been specially found to be true.”
(Italics added.) We have, in prior cases, rejected the contention that the term “life
without possibility of parole,” as used in this instruction, “confuses jurors or has a
technical meaning that requires a sua sponte definitional instruction.” (People v.
Smithey (1999) 20 Cal.4th 936, 1009; see, e.g., People v. Prieto (2003) 30 Cal.4th
226, 270-271; People v. Ochoa (1998) 19 Cal.4th 353, 457; People v. Sanders
(1995) 11 Cal.4th 475, 561-562.) Our position on this issue has been clear and
consistent.
1
Jurors, however, faced with making the enormous decision whether or not
to impose society’s ultimate criminal penalty, apparently are not so confident
about the plain meaning of CALJIC No. 8.84. For example, in People v. Snow
(2003) 30 Cal.4th 43, the jury, after retiring to deliberate, sent out a note asking
the trial judge: “ ‘If we give life imprisonment without possibility of parole, can
we be assured he will never be[] released from prison[?]’ ” (Id. at p. 123.)
Similarly, in People v. Hart (1999) 20 Cal.4th 546, the jury, prior to closing
argument, sent the trial court a note asking: “ ‘Does life in prison without the
possibility of parole mean he will never get out under any circumstances?’ ” (Id.
at p. 654.) In People v. Bonillas (1989) 48 Cal.3d 757, the jury, after retiring to
deliberate, sent out a note asking: “ ‘Is there any way at all that a parole could be
granted[?] Please list the ways.’ ” (Id. at p. 797.) In People v. Silva (1988) 45
Cal.3d 604, the jury asked this question: “ ‘[D]oes life in prison without
possibility of parole mean just that, or is parole possible at some future date? If
so, under what circumstances?’ ” (Id. at p. 640.) The instant case is no different;
here, the jury sent out a note during deliberations that asked: “Does ‘without the
possibility of parole’ mean no chance of parole—ever![?]”
Defense attorneys, aware of this potential confusion, often propose a
special instruction in an attempt to clarify the meaning of a sentence of life
imprisonment without the possibility of parole. For example, in People v.
Gutierrez (2002) 28 Cal.4th 1083, the defendant proposed an instruction that
would have informed the jury that “life without the possibility of parole means
‘defendant will be imprisoned for the rest of his life.’ ” (Id. at p. 1159.) In People
v. Thompson (1988) 45 Cal.3d 86, the defendant proposed this instruction: “[I]f
you determine that life without the possibility of parole is the proper sentence, you
are instructed that the defendant will never be released from prison.” (Id. at
p. 129.) In the instant case, defendant proposed this penalty phase instruction:
2
“You are instructed that life without possibility of parole means exactly what it
says: The defendant will be imprisoned for the rest of her life. [¶] . . . [¶] For you
to conclude otherwise would be to rely on conjecture and speculation and would
be a violation of your oath as trial jurors.”
We generally affirm a trial court’s rejection of such proposed instructions
on the ground the instruction is technically incorrect (see People v. Musselwhite
(1998) 17 Cal.4th 1216, 1271) because a defendant, sentenced by a jury to life
imprisonment without the possibility of parole, could still gain his freedom if a
state or federal appellate court grants relief on appeal, or if the Governor exercises
his commutation or clemency power (People v. Thompson, supra, 45 Cal.3d at
p. 130). Although rare, these possibilities nevertheless exist.
Because the jury in this case specifically asked the trial court for guidance
on the question of the possibility of parole, we know it was concerned about this
issue. Given that the jury had already been instructed and had retired to deliberate,
its question came at a critical point in the trial. Under the circumstances, the trial
court should have answered the question. Penal Code section 1138 provides:
“After the jury have retired for deliberation, . . . 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.” (Italics added.)
Some jurors may have been concerned that the primary actor in a
conspiracy that resulted in two murders could eventually go free were they to vote
for life imprisonment instead of death. By simply rereading CALJIC No. 8.84—
the same instruction already provided to the jury—the trial court failed to clarify
the legal issue that concerned the jury and thus ran the risk that some jurors,
erroneously believing release on parole was a possibility, voted to impose the
3
death penalty as a way of ensuring defendant would never be released to kill
again. A death penalty verdict reached under such circumstances may implicate a
defendant’s right to due process of law. (See Simmons v. South Carolina (1994)
512 U.S. 154, 162 (plur. opn.) [due process violated when state imposes death
sentence based in part on the defendant’s future dangerousness when jury not
informed the alternative penalty of life imprisonment was without parole].)
Providing the jury with a more complete picture of the legal effect of a
sentence of life without the possibility of parole, admittedly, may encourage it to
speculate on matters irrelevant to its penalty decision. We faced a similar situation
in People v. Ramos (1984) 37 Cal.3d 136, concerning whether a trial judge in a
capital trial should inform the jury of the Governor’s commutation power. We
concluded: “When the jury raises the commutation issue itself—either during voir
dire or in a question posed to the court during deliberations—the matter obviously
cannot be avoided and is probably best handled by a short statement indicating
that the Governor’s commutation power applies to both sentences but emphasizing
that it would be a violation of the juror’s duty to consider the possibility of such
commutation in determining the appropriate sentence.” (Id. at p. 159, fn. 12.)
We should apply the same approach to a jury’s question concerning the
meaning of life imprisonment without the possibility of parole. Thus, although
CALJIC No. 8.84 seems clear on its face, some jurors may nevertheless believe a
life prisoner will still be able to obtain release on parole sometime in the future. If
the jury submits a question on this topic, I believe the trial court should respond
with a short statement explaining that, in unusual cases, future action by the
judiciary or the Governor may permit the defendant to obtain parole, that such
possibilities apply whether the jury imposes a sentence of death or of life without
the possibility of parole, that the jury should assume such future actors will follow
the law, and that the jury should not speculate on such possibilities and should
4
assume the sentence it reaches will be carried out.1 (See People v. Thompson,
supra, 45 Cal.3d at p. 131; see generally People v. Davis (1995) 10 Cal.4th 463,
547 [quoting extensive instructions concerning the import of a sentence of death or
of life without the possibility of parole and the factors the jury cannot properly
consider].) In that way, the jury is fully informed as to its sentencing choices but
is instructed not to consider matters irrelevant to its decision. A contrary
conclusion, in which we tolerate a jury reaching a penalty decision while uncertain
of the true meaning of the applicable penalty choices, seems unwise.
In the present case, the trial court indicated that if the jury were again to
question the meaning of “life without possibility of parole” it would provide “a
further answer.” No further question was asked. Because nothing in the record
suggests the trial court’s failure to clarify the law in response to the jury’s question
1
Of course, care should be taken not to suggest that the jury’s responsibility
for its verdict is in any way diluted by the possibility of an appeal or future
commutation or grant of executive clemency. (See People v. Memro (1995) 11
Cal.4th 786, 878-879; People v. Fierro (1991) 1 Cal.4th 173, 245; see generally
Caldwell v. Mississippi (1985) 472 U.S. 320.) When a jury asks for greater
elucidation on this subject, however, some mention of the possibility of appellate
review or commutation may be unavoidable.
5
convinced a juror to vote for death instead of life imprisonment, I cannot now
conclude the trial court’s failure to clarify CALJIC No. 8.84 was prejudicial.
Accordingly, I concur.
WERDEGAR, J.
I join the concurring opinion:
KENNARD, J.
6
CONCURRING AND DISSENTING OPINION BY KENNARD, J.
I join the majority in affirming the judgment. I write separately to express
my disagreement with the majority’s analysis of two issues, one pertaining to
financial motive to kill, the other involving the prosecutor’s biblical references.
I
At the guilt phase of defendant Mary Ellen Samuels’s capital trial for the
murders of her estranged husband and an accomplice whom, she feared, would
report the killing of her husband to the police, the prosecution presented this
evidence: As a beneficiary of her husband’s life insurance policy defendant
received more than $240,000 in proceeds; she got $70,000 for selling a sandwich
shop that she and her husband had owned; and she obtained $160,000 by
refinancing the family home. She then spent the money on such things as an
expensive sports car, a large television, limousine service, property in a Mexican
resort, and clothing from a store called Trashy Lingerie.
Defendant challenges the trial court’s admission into evidence of how she
spent the money, contending it was inadmissible character evidence. The majority
brushes the contention aside with this cursory comment: “[T]here was no error.
The evidence was relevant to prove defendant’s financial motive for killing
Samuels. (People v. Sapp (2003) 31 Cal.4th 240, 313.)” (Maj. opn., ante, at
p. 17.) The majority’s citation of Sapp is puzzling; no issue in that case bears the
faintest resemblance to the merry widow’s spending spree at issue here.
1
In Sapp, a jury convicted the defendant of murdering three people.
Thereafter, in closing argument at the penalty phase, the prosecutor referred to
evidence at the penalty phase that the defendant had also killed his mother (a
crime for which he was not convicted), and argued that like the other murders, the
defendant had a financial motive to kill his mother, because he owed her $60,000.
On appeal, the defendant in Sapp contended that the trial court should have
instructed the jury that in determining whether he had killed his mother (a
prerequisite for using that fact against him as an aggravating circumstance at the
penalty phase), the jurors should not infer, based on his commission of the charged
murders, that he had a propensity toward criminal behavior. This court held that
the evidence did not warrant such an instruction. (People v. Sapp, supra, 31
Cal.4th at pp. 312-313.)
Sapp is inapposite. (1) At issue there was the trial court’s failure to give a
particular jury instruction; at issue here is the admissibility of evidence. (2) Sapp
involved the penalty phase of a capital trial; this case involves the guilt phase.
(3) In Sapp, the prosecutor tried to use evidence of three murders to prove the
commission of a fourth murder; here, the prosecutor used evidence of defendant’s
spending spree after her husband’s death to prove that she killed him.
The only aspect of Sapp that remotely resembles this case is the
prosecutor’s reference in Sapp to evidence that the defendant had a “financial
motive” (People v. Sapp, supra, 31 Cal.4th at p. 312) to kill his mother because he
owed her money. But that evidence is wholly unlike the evidence of financial
motive at issue here, which pertains to how defendant spent the inherited money;
in any event, this court’s opinion in Sapp did not address the admissibility of that
evidence. Thus, Sapp has no bearing on the issue here: Whether, as the majority
holds, the manner in which defendant spent the money she inherited from the
2
murder victim shows that she had a financial motive to kill him. The issue ought
to be resolved by applying established principles on the admissibility of evidence.
Only relevant evidence is admissible. (Evid. Code, § 350.) Relevant
evidence is evidence “having any tendency in reason to prove or disprove any
disputed fact that is of consequence to the determination of the action.” (Evid.
Code, § 210.) “The test of relevance is whether the evidence tends ‘logically,
naturally, and by reasonable inference’ to establish material facts . . . .” (People
v. Garceau (1993) 6 Cal.4th 140, 177.) Motive is a material fact. (Ibid.)
Evidence that a defendant charged with murder inherited property or
collected life insurance benefits from the victim is relevant, and therefore
admissible, when the defendant knew of the policy’s existence at the time of the
victim’s death. (People v. Goedecke (1967) 65 Cal.2d 850, 860.) Such evidence
would tend to show that the defendant had a motive for the murder. Thus, here the
prosecution was entitled to introduce evidence that defendant collected life
insurance benefits and inherited property on the death of her estranged husband,
because it is reasonable to infer that she knew she would be entitled to them when
her husband died. But what she did with those assets has no bearing on her motive
to kill. How one disposes of inherited money or property differs from person to
person. Some may choose to invest in the stock market or to support a favorite
charity. Others may decide to use the inherited wealth to indulge in a buying spree
largely for their own benefit and enjoyment, as occurred here. In either situation,
how the inheritance is spent has no “tendency in reason” (Evid. Code, § 210) to
establish a motive for the killing by which the funds were obtained.
Thus, the evidence of defendant’s spending habits after her husband’s death
served only to show, as defendant puts it, that she was outside “the norm of middle
class women,” and that she was “a person of poor judgment” who was “loose with
money.” Assuming, as does the majority, that defendant objected with sufficient
3
specificity to preserve the issue, the trial court erred by admitting, at the guilt
phase of defendant’s capital trial, evidence of how she spent the money she
inherited from her murdered husband.
The error, however, was harmless, because there was overwhelming
evidence of defendant’s guilt. Three witnesses (Heidi Dougall, Celina Krall, and
Marsha Hutchison) testified that defendant told them that she wanted her husband
dead, and another witness (David Navarro) testified that defendant had solicited
him to kill her husband. Defendant’s close friend, Anne Hambly, testified that
defendant told her she had persuaded James Bernstein to hire a “hit man” to kill
defendant’s husband. Defendant also told Hambly that she later had Bernstein
killed because she was afraid that he would tell the police of her involvement in
her husband’s death. Paul Gaul, who killed Bernstein with the assistance of an
accomplice, testified that defendant had asked him to commit the murder because
Bernstein was blackmailing her by threatening to tell the police of her role in her
husband’s murder. Given the strength of this evidence, it is not “reasonably
probable” (People v. Watson (1956) 46 Cal.2d 818, 836) that the outcome of
defendant’s trial would have been different if the trial court had excluded the
evidence of how she spent the money she inherited after his death.1
1
Defendant also argues that in addition to violating state law, admission of
the evidence showing how she spent her inheritance violated her right to due
process under the Sixth, Eighth, and Fourteenth Amendments to the federal
Constitution. She cites authority holding that “the admission of bad act testimony
violates due process where ‘the admission of the testimony was arbitrary or
fundamentally unfair.’ ” (Terrovona v. Kincheloe (9th Cir. 1988) 852 F.2d 424,
429.) Assuming for the sake of argument that this standard, which pertains to the
admission of prior criminal conduct by the defendant, is applicable here, I
perceive no violation of defendant’s constitutional rights. The trial court’s
admission of the evidence in question, although erroneous under state law, was not
so damaging as to make the trial fundamentally unfair.
4
I now turn to the prosecutor’s biblical references at the penalty phase.
II
In her closing argument to the jury, the prosecutor said: “Genesis chapter
9, verse 6; Exodus chapter 21, verse 12; and the Book of Numbers chapter 35,
verse 31 all repeat the same basic message: ‘Whoever sheds the blood of man, by
man shall his blood be shed, for in his image did God make man.’ ” Defendant
raised an objection, which the trial court overruled. The prosecutor then
continued, “ ‘He who fatally strikes a man shall be put to death.’ [¶] Exodus
even answers a common defense argument that only God can take a life. [¶] ‘It is
not [sic] man, not God, who is to execute murders. By man shall his, the
murderers [sic] blood be shed.’ [¶] Although some look to the New Testament
and quote, ‘Vengeance is mine, I will repay saith the Lord,’ in the very next
chapter, Romans, Paul calls for capital punishment by saying, ‘The ruler bears not
the sword . . . in vain for he is the minister [of] God, a revenger to execute wrath
upon him that doeth evil.’ ”
The prosecutor followed those biblical quotations with these comments:
“Now that’s enough said. And please understand I’m not telling you to use the
Bible. I’m telling you not to use the Bible. The Bible is not the law of the land.
[¶] I only read those brief quotes for any of you who may have personal
reservations against the death penalty because you believe that it is against your
own beliefs. [¶] Please don’t misunderstand because there was no other reason
for reading those sections other than that. [¶] Ladies and gentlemen, . . . a free
society requires of its citizen jurors strength and vigilance and courage and resolve
in making the tough decision that is before you now. [¶] It is much easier to beg
you to spare a life than to ask you to take a life. That’s because those of us who
live within the norms of society have a natural compassion, a natural reference
[sic] for life. [¶] It would be very easy for you to . . . walk away, to say that
5
[defendant] will spend the rest of her life in prison. [¶] But there is a greater
principle here. If you believe that the death penalty is appropriate, then to walk
away and to take the easy road because it was convenient or because it’s easy to
live with, I submit you are ignoring the laws of the land that capital punishment
should be applied when you decide it is appropriate.” (Italics added.)
Defendant argues that the prosecutor’s biblical references violated her
rights under the Sixth, Eighth, and Fourteenth Amendments to the federal
Constitution. The majority does not resolve the issue. It simply concludes that
even if improper, the prosecutor’s argument did not prejudice defendant. The
majority explains: “The prosecutor’s biblical argument was only a small part of
her argument, the bulk of which focused on arguing to the jury why it should find
that the statutory aggravating factors outweighed the mitigating factors.” (Maj.
opn., ante, at p. 46.)
If I were to find that the prosecutor’s biblical references in this case were
improper, I would conclude that they prejudiced defendant. The majority is wrong
when it says that a prosecutor’s improper reliance on religious authority is
harmless if it is only a “small part” of the prosecutor’s closing argument. I
explained why in my dissenting opinion in People v. Slaughter (2002) 27 Cal.4th
1187. There, this court used reasoning identical to that used by the majority here
to find that the prosecutor’s improper biblical references in his closing argument at
the penalty phase of a capital case were harmless. I dissented, with these
comments: “The majority’s assertion that the prosecutor’s improper argument
must be considered harmless because it was ‘part of a longer argument that
properly focused upon the factors in aggravation and mitigation’ . . . makes little
sense. Under that logic, prosecutors may freely refer to biblical authority when
making their penalty arguments to juries in capital cases, secure in the knowledge
that this court will never reverse a resulting death judgment for this misconduct,
6
provided only that the prosecutors also present an argument focusing on the
statutory aggravating and mitigating factors. Appeals to divine authority in jury
arguments in capital cases are prejudicial when jurors for whom the aggravating
and mitigating factors appear closely balanced use religious considerations to
resolve their doubts, as the prosecutor’s improper argument invites them to do.”
(Id. at p. 1228 (dis. opn. of Kennard, J.); see also People v. Vieira (2005) 35
Cal.4th 264, 309 (dis. opn. of Kennard, J.).) The majority here employs the same
faulty logic used by the majority in Slaughter.
Because, in my view, an impermissible reliance on religious authority by
the prosecutor may be prejudicial even when, as here, the biblical references are
only a short part of the prosecutor’s argument, I must decide whether the
prosecutor’s biblical references in this case were improper. On point here is this
court’s decision in People v. Hughes (2002) 27 Cal.4th 287, in which I joined.
There the prosecutor, as in this case, quoted several biblical passages supportive of
the death penalty in his closing argument at the penalty phase of a capital trial.
But he went on to explain to the jury that he was not trying to argue that the Bible
provided a basis for imposing the death penalty, but only to show that the Bible
was “ ‘not an impediment to imposing the death penalty.’ ” (Id. at p. 391.) This
court held the comments were permissible: “The prosecutor’s references were
part of a straightforward argument that jurors should not be persuaded either way
by biblical and religious teachings, and that the ultimate penalty decision was an
individual determination. The prosecutor did not imply or suggest that another,
higher law should be applied instead of the court’s instructions . . . .” (Id. at
p. 392.)
“Because any use of biblical references in argument must be carefully
scrutinized, cautious prosecutors will choose to avoid such references” (People
v. Harrison (2005) 35 Cal.4th 208, 248); “[a] prosecutor who mentions the Bible
7
in closing argument runs a grave risk that a reviewing court will . . . reverse the
defendant’s conviction” (ibid.). But here, as in Hughes, the prosecutor’s biblical
references “were part of a straightforward argument that jurors should not be
persuaded either way by biblical and religious teachings . . . .” (People v. Hughes,
supra, 27 Cal.4th at p. 392), but should instead base their penalty decision on “the
laws of the land.” Thus, under this court’s decision in Hughes, the prosecutor’s
argument did not violate defendant’s constitutional rights.
KENNARD,
J.
8
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Samuels
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S042278
Date Filed: June 27, 2005
__________________________________________________________________________________
Court: Superior
County: Los Angeles
Judge: Michael R. Hoff
__________________________________________________________________________________
Attorneys for Appellant:
Joel Levine, under appointment by the Supreme Court, for Defendant and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C.
Hamanaka, Assistant Attorney General, Sharlene A. Honnaka and Kyle S. Brodie, Deputy Attorneys
General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Joel Levine
16000 Ventura Blvd., Suite 500
Encino, CA 91436
(818) 995-6052
Kyle S. Brodie
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
(213) 576-1334
Opinion Information
| Date: | Docket Number: |
| Mon, 06/27/2005 | S042278 |
Parties
| 1 | The People (Respondent) Represented by Attorney General - Los Angeles Office Kyle S. Brodie, Deputy Attorney General 300 South Spring Street, Suite 500 Los Angeles, CA |
| 2 | Samuels, Mary Ellen (Appellant) Central California Women's Facility Represented by Joel Levine Attorney at Law 695 Town Center Dr., Suite 875 Costa Mesa, CA |
| Disposition | |
| Jun 27 2005 | Opinion: Affirmed |
| Dockets | |
| Sep 16 1994 | Judgment of death |
| Sep 21 1994 | Filed certified copy of Judgment of Death Rendered 9-16-94. |
| Jan 11 1999 | Filed: Applt's Applic. for appointment of Counsel. |
| Jan 11 1999 | Filed: Request by Inmate for Dual representation. |
| Jan 11 1999 | Filed: Request by Counsel for Dual representation appointment. |
| Jan 12 1999 | Counsel appointment order filed Upon request of appellant for appointment of counsel, Joel Levine is hereby appointed to represent appellant Mary Ellen Samuels for both the direct appeal and related state habeas corpus/ executive clemency proceedings, in the above automatic appeal now pending in this court. |
| Apr 12 1999 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Apr 19 1999 | Received letter from: Los Angeles County Clerk, dated 4-14-99, Advising Record Was mailed to Applt's Counsel on 1-12-99. |
| Apr 26 1999 | Extension of Time application Granted To 6-16-99 To request Record correction |
| Jun 11 1999 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Jun 17 1999 | Extension of Time application Granted To 8-16-99 To request Record correction |
| Aug 9 1999 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Aug 11 1999 | Compensation awarded counsel |
| Aug 17 1999 | Extension of Time application Granted To 10-15-99 To request Record correction |
| Oct 13 1999 | Application for Extension of Time filed To request correction of the Record. |
| Oct 19 1999 | Extension of Time application Granted To 12/14/99 To Applt To request Corr. of the Record. |
| Dec 13 1999 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Dec 23 1999 | Extension of Time application Granted To 2/14/2000 To Applt To request Corr. of the Record. no further Extensions of time Are Contemplated. |
| Feb 14 2000 | Received copy of appellant's record correction motion Request for correction of transcripts, additional record on appeal, and to examine sealed documents and transcripts (18 pp.) |
| Mar 15 2000 | Compensation awarded counsel Atty Levine |
| Mar 15 2000 | Compensation awarded counsel Atty Levine |
| Aug 28 2000 | Counsel's status report received (confidential) |
| Oct 23 2000 | Counsel's status report received (confidential) |
| Dec 22 2000 | Counsel's status report received (confidential) |
| Feb 21 2001 | Counsel's status report received (confidential) |
| Apr 16 2001 | Counsel's status report received (confidential) |
| May 21 2001 | Record on appeal filed C-18 (3949 Pp.) and R-52 (6244 Pp.) including material under seal. |
| May 21 2001 | Appellant's Opening Brief Letter sent, due: 7/2/2001. |
| May 31 2001 | Filed: RT dated: 5/11/2001 (3 Pp.). |
| Jun 14 2001 | Compensation awarded counsel Atty Levine |
| Jun 14 2001 | Compensation awarded counsel Atty Levine |
| Jun 15 2001 | Counsel's status report received (confidential) from atty Levine. |
| Jul 2 2001 | Application for Extension of Time filed to file AOB. (1st request) |
| Jul 9 2001 | Extension of Time application Granted To 8/31/2001 to file AOB. |
| Aug 13 2001 | Counsel's status report received (confidential) |
| Aug 30 2001 | Application for Extension of Time filed To file AOB. (2nd request) |
| Aug 31 2001 | Extension of Time application Granted to 10-30-2001 to file AOB. |
| Oct 16 2001 | Counsel's status report received (confidential) |
| Oct 29 2001 | Application for Extension of Time filed To file AOB. (3rd request) |
| Nov 1 2001 | Extension of Time application Granted To 12/31/2001 to file AOB. |
| Dec 11 2001 | Counsel's status report received (confidential) |
| Dec 31 2001 | Request for extension of time filed To file AOB. (4th request) |
| Jan 3 2002 | Extension of time granted To 3/1/2002 to file AOB. |
| Feb 7 2002 | Counsel's status report received (confidential) |
| Mar 4 2002 | Request for extension of time filed To file AOB. (5th request) |
| Mar 11 2002 | Filed: Supplemental declaration in support of application for extension of time. |
| Mar 18 2002 | Extension of time granted To 5/1/2002 to file AOB. Counsel anticipates filing the brief by 11/15/2002. Only four futher extensions totaling 198 additional ays are contemplated. |
| Apr 8 2002 | Counsel's status report received (confidential) |
| Apr 29 2002 | Request for extension of time filed To file AOB. (6th request) |
| May 2 2002 | Extension of time granted To 7/1/2002 to file AOB. Counsel anticipates filing the brief by 11/15/2002. Three further extensions totaling 137 additional days is contemplated. |
| Jun 10 2002 | Counsel's status report received (confidential) from atty Levine. |
| Jul 1 2002 | Request for extension of time filed To file AOB. (7th request) |
| Jul 3 2002 | Extension of time granted To 8/30/2002 to file AOB. Counsel anticipates filing that brief by 11/15/2002. Two further extensions totaling 77 additional days are contemplated. |
| Aug 7 2002 | Counsel's status report received (confidential) |
| Aug 30 2002 | Request for extension of time filed to file AOB. (8th request) |
| Sep 4 2002 | Extension of time granted to 10-29-2002 to file AOB. After that date, only one further extension totaling 17 additional days is contemplated. Extension granted based upon counsel Joel Levine's representation that he anticipates filing the brief by 11-15-2002. |
| Oct 7 2002 | Counsel's status report received (confidential) |
| Oct 25 2002 | Request for extension of time filed To file appellant's opening brief. (9th request) |
| Oct 30 2002 | Extension of time granted To 11/15/2002 to file appellant's opening brief. Extension is granted based upon counsel Joel Levine's representation that he anticiaptes filing that brief by 11/15/2002. After that date, no further extension will be granted. |
| Nov 7 2002 | Application to file over-length brief filed to file appellant's opening brief. (347 pp. brief submitted under separate cover) |
| Nov 13 2002 | Order filed Appellant's application for permission to file oversized opening brief is granted. |
| Nov 13 2002 | Appellant's opening brief filed (347 pp.) |
| Dec 11 2002 | Request for extension of time filed to file respondent's brief. (1st request) |
| Dec 13 2002 | Extension of time granted To 2/11/2003 to file respondent's brief. |
| Dec 18 2002 | Counsel's status report received (confidential) |
| Jan 3 2003 | Filed: Declaration of attorney Joel Levine pursuant to Penal Code Section 1241 (confidential). |
| Jan 13 2003 | Compensation awarded counsel Atty Levine |
| Jan 13 2003 | Compensation awarded counsel Atty Levine |
| Feb 6 2003 | Request for extension of time filed to file respondent's brief (2nd request) |
| Feb 19 2003 | Counsel's status report received (confidential) |
| Feb 24 2003 | Extension of time granted to 4-14-2003 to file respondent's brief. After that date, only one further extension totaling about 30 additional days is contemplated. Extension granted based upon Deputy AG Kyle Brodie's representation that he anticipates filing the brief by 5-15-2003. |
| Apr 11 2003 | Request for extension of time filed to file respondent's brief. (3rd request) |
| Apr 17 2003 | Counsel's status report received (confidential) |
| Apr 18 2003 | Extension of time granted to 5/15/2003 to file respondent's brief. Extension is granted based upon Deputy Attorney General Kyle S. Brodie's representation that he anticipates filing that brief by 5/15/2003. After that date, no further extension is contemplated. |
| May 15 2003 | Respondent's brief filed (164 pp.) |
| Jun 9 2003 | Request for extension of time filed to file appellant's reply brief. (1st request) |
| Jun 10 2003 | Extension of time granted to 8/4/2003 to file appellant's reply brief. |
| Jun 16 2003 | Counsel's status report received (confidential) |
| Aug 4 2003 | Request for extension of time filed to file appellant's reply brief. (2nd request) |
| Aug 7 2003 | Extension of time granted to 10/3/2003 file appellant's reply brief. After that date, only one further extension totaling 60 additional days is contemplated. Extension is granted based upon counsel Joel Levine's representation that he anticipates filing that brief by early December 2003. |
| Aug 14 2003 | Counsel's status report received (confidential) |
| Oct 1 2003 | Request for extension of time filed to file reply to informal response. (3rd request) |
| Oct 3 2003 | Extension of time granted to 12/3/2003 to file appellant's reply brief. Extension is granted based upon counsel Joel Levine's representation that he anticipates filing that brief by 12/3/2003. After that date, no further extension will be granted. |
| Oct 14 2003 | Counsel's status report received (confidential) |
| Dec 1 2003 | Appellant's reply brief filed (124 pp) |
| Jan 15 2004 | Counsel's status report received (confidential) |
| Mar 15 2004 | Counsel's status report received (confidential) |
| May 21 2004 | Related habeas corpus petition filed (concurrent) No. S124998 |
| Jun 1 2004 | Filed: Declaration of attorney Joel Levine (confidential). |
| Jun 7 2004 | Compensation awarded counsel Atty Levine |
| Oct 5 2004 | Exhibits requested People's 3 (A,B,C,J,K) and 16. |
| Oct 12 2004 | Exhibit(s) lodged People's 3 and 16. |
| Nov 10 2004 | Record augmentation granted It is hereby ordered that the Los Angeles Superior Court is to augment the record on appeal with the information presented to the trial court at the in camera hearing on defendant's motion to discover the law enforcement records of George Daley, Los Angeles Police Department serial No. 17029. This hearing was held before the Honorable Michael Hoff, Tuesday, May 3, 1994, in the case of The People of the State of California v. Mary Ellen Samuels, case No. PA 002269. (Cal. Rules of Court, rules 12, 36.1.) The item will remain under seal unless otherwise ordered by this court. Compliance with this order shall be within 20 days. |
| Nov 30 2004 | Change of contact information filed for: for attorney Joel Levine. |
| Dec 2 2004 | Supplemental record/transcript filed Clerk's transcript supplemental IV (1 vol. - 46 pp.) (Note: Pursuant to court's order of 11/10/2004) |
| Dec 2 2004 | Letter sent to: counsel advising that the clerk's 4th supplemental transcript was filed this date. |
| Feb 23 2005 | Oral argument letter sent advising counsel that case could be scheduled for oral argument as early as the April calendar, to be held the week of April 4, 2005, in Los Angeles. 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. |
| Mar 8 2005 | Case ordered on calendar Wed. 4/6/05 @2pm - Los Angeles |
| Mar 18 2005 | Filed letter from: attorney Joel Levin, dated 3/16/2005, re focus issues for oral argument and request for 45 minutes for argument. |
| Mar 18 2005 | Filed letter from: respondent, dated 3/18/ 2005, re focus issues for oral argument and request for 45 minutes for argument. |
| Apr 6 2005 | Cause argued and submitted |
| Apr 27 2005 | Compensation awarded counsel Atty Levine |
| Jun 27 2005 | Opinion filed: Judgment affirmed in full Majority Opinion by Brown, J. -- joined by George C.J., Baxter, Chin & Moreno JJ. Concurring Opinion by Werdegar, J. -- joined by Kennard, J. Concurring & Dissenting Opinion by Kennard J |
| Jul 11 2005 | Rehearing petition filed appellant. (12 pp.) |
| Jul 15 2005 | Time extended to consider modification or rehearing to 10/25/2005, or the date upon which rehearing is either granted or denied, whichever occurs first. |
| Jul 15 2005 | Filed: Appellant's certificate of word count for petition for rehearing. (2879 words) |
| Sep 6 2005 | Order filed The order filed on 7/15/2005, extending time to grant or deny rehearing is amended to read, in its entirety; "The time for granting or denying rehearing in the avoe entitled case is hereby extended to and including 9/23/2005, or the date upon which rehearing is either granted or denied, whichever occurs first. |
| Sep 21 2005 | Rehearing denied Petition for rehearing denied. Opinion modified. George, C.J., was absent and did not participate. |
| Sep 21 2005 | Opinion modified - no change in judgment |
| Sep 21 2005 | Remittitur issued (AA) |
| Sep 30 2005 | Received: Acknowledgment of receipt of remittitur. |
| Oct 5 2005 | Exhibit(s) returned People's 3 and 16 |
| Oct 11 2005 | Order filed (150 day statement) |
| Oct 19 2005 | Received: acknowledgment of receipt of exhibits. |
| Jan 23 2006 | Received: letter from U.S.S.C., dated 1/17/2006, advising petition for writ of certiorari filed on 12/14/2005 and placed on docket 1/17/2006 as No. 05-8672. |
| Apr 17 2006 | Certiorari denied by U.S. Supreme Court |
| Briefs | |
| Nov 13 2002 | Appellant's opening brief filed |
| May 15 2003 | Respondent's brief filed |
| Dec 1 2003 | Appellant's reply brief filed |
