People v. Schmeck - S015008 - Thu, 08/25/2005 | California Supreme Court Resources

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Docket No. S015008

People v. Schmeck

Filed 8/25/05

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

S015008

v.

) Alameda

County

MARK LINDSEY SCHMECK,

Super. Ct. No. H-9033

Defendant and Appellant.

A jury found defendant Mark Lindsey Schmeck guilty of the first degree

murder of Lorin Gwynne Germaine (Pen. Code, § 187, subd. (a), § 189)1 and of

second degree robbery (§ 211). The jury also found true the allegations that

defendant killed the victim while engaged in the commission or attempted

commission of a robbery (former § 190.2, subd. (a)(17)(i), now § 190.2,

subd. (a)(17)(A)), and personally used a firearm in committing the murder and the

robbery (§ 12022.5 as amended by Stats. 1988, ch. 1249, § 3, p. 4161). The jury

set the punishment at death.

1

All further statutory references are to the Penal Code, unless otherwise

designated.

1

The case is before us on defendant’s automatic appeal. (Cal. Const., art. VI,

§ 11; Pen. Code, § 1239, subd. (b).) For the reasons that follow, we affirm the

judgment.

I. FACTS

A. Guilt phase

The prosecution proceeded on the theory that defendant sought out a motor

home to steal, and then robbed and murdered Lorin Germaine in the course of

stealing his motor home. The defense theory was that Jamie Gronley (defendant’s

girlfriend), Donald Willis, and perhaps William Duffy committed the murder and

robbery, and that following the murder, defendant unwittingly had merely

attempted to sell the motor home.

1. Prosecution evidence

On the morning of May 30, 1986, Lorin Germaine left his Fremont residence

to meet a prospective buyer for his motor home. On June 5, 1986, Germaine’s

body, with four or five bullet wounds in his head, was discovered on a road near

Sunol.

In May 1986, Lorin and his wife Rebecca Germaine placed an advertisement

in Auto Trader magazine to sell their 1978 22-foot Dodge Brougham motor home,

which had mileage of 38,000, for $14,000. Approximately 8:30 p.m. on Monday,

May 26, Rebecca answered a telephone call from a man who said he had seen the

advertisement in that magazine and was interested in buying the motor home.

Rebecca handed the telephone to Lorin. On Tuesday, May 27, at approximately

6:00 a.m., Rebecca received a telephone call from the same man about the motor

home, and again handed the telephone to Lorin. Afterwards, Lorin told Rebecca

that during his lunch hour Lorin was going for a test drive in the motor home with

the man who had telephoned. Prior to May 30, Rebecca recalled that the caller’s

name was Mark, but her two children believed his name was Mike.

2

On the evening of May 27, Lorin told the family’s babysitter, Carey

Gilchrist, that the prospective buyer had mentioned that an aunt had died and left

him $85,000, which was being managed by his sister. Later the same evening,

Lorin told Rebecca that during the test drive the prospective buyer had commented

that Lorin “looked really familiar and he asked him if he had a younger brother,

that [the prospective buyer] thought that he knew [Lorin’s] younger brother.”

Rebecca testified that in fact Lorin had a younger brother who looked “[e]xactly

like him.” Dennis Trede, a friend of the Germaine family, later testified that in

April, 1986, defendant and Trede had been in the same holding cell in the

municipal courthouse. Lorin’s younger brother, John Germaine, appeared at the

courthouse to visit Trede, and defendant made a comment about John Germaine to

Trede.

On Wednesday, May 28, Rebecca emptied the motor home of all of their

personal belongings, vacuumed the carpet, and washed the interior and exterior.

On Thursday, May 29, Rebecca and Lorin went to the Department of Motor

Vehicles (DMV) and obtained the necessary documents to transfer title to the

motor home. At trial, Rebecca identified the release of liability form that she and

her husband completed, but she did not recognize the printing of the name for the

buyer, Martin R. Freitas, whom the form identified as the ostensible purchaser of

the vehicle.

At approximately 6:00 a.m. on Friday, May 30, Rebecca answered another

telephone call from the same man about the motor home, and she handed the

phone to Lorin. This individual telephoned approximately one hour later, and

Rebecca again handed the telephone to Lorin. Lorin drove their children to

school. He returned to their home, spoke to Rebecca for a few minutes, and

retrieved the DMV documents and keys to the motor home. Lorin also had a

trifold wallet containing approximately $40 in cash and other items, including his

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Kaiser medical identification card. At approximately 8:30 a.m., Lorin departed in

the motor home to meet the buyer at A Street and Grand in Hayward to finalize the

transaction.

During May, defendant made several statements that related to obtaining and

selling a motor home. In that month, defendant sanded and painted the kitchen

and dining area at the residence of Henria (Wanda) Wilson and Melba Valdez.

Wilson saw defendant making telephone calls with an Auto Trader magazine in

his hand. Between May 16 and May 27, defendant asked Wilson and Valdez

whether they knew anyone who wanted to buy a mobile home for approximately

$7,000, and offered to pay them $200 if they located a buyer. After his release

from jail on May 16 and prior to May 30, defendant told Jamie Gronley, his

girlfriend, that he wanted to acquire a motor home. Between those dates,

defendant also told his friend William Duffy that defendant had a plan to make

money, in which he would “pretend [to] buy a motor home out of a newspaper and

he would put the gun to the owner’s head and insist that the owner sign over the

pink slip to him or he would blow him away.” On May 27, defendant told an

acquaintance, John Maartense, he was going to obtain a motor home. When

Maartense inquired how defendant would purchase a motor home without having

a job, defendant replied, “I have my ways.”

At approximately 2:00 p.m. on May 27, a person identifying himself as Mark

Schmeck telephoned Nohr’s R. V. Center in Dublin. Phillip Sipes answered the

telephone. The caller asked whether Nohr’s was purchasing motor homes at that

time, and whether they could make a quick deal. The caller stated that he was

selling a 1978 22-foot Brougham motor home having approximately 39,000 miles.

Sipes informed the caller that the Kelly Blue Book value of that vehicle was

approximately $8,000 at wholesale, and $11,000 at retail, and that once Sipes

inspected the vehicle, he could make a deal the same day. Sipes testified that his

4

May 27 telephone log contained the following notation: “ ’78 22-foot Brougham

39,000 miles, Mark Schmeck.”

Evidence was introduced concerning defendant’s activities on May 30, the

day of Lorin Germaine’s disappearance. Between approximately 10:30 a.m. and

11:30 a.m., defendant appeared at the parking lot of an apartment complex where

Jamie Gronley was assisting her acquaintance, Edward Tanner, move. Defendant

spoke to Gronley for approximately five to 10 minutes and appeared to be upset.

Defendant told Gronley that he was attempting to sell a motor home, but first had

to take it to be cleaned at a car wash.

On the same day between 10:30 a.m. and 11:00 a.m., a person identifying

himself as Mr. Schmeck telephoned Phillip Sipes at Nohr’s R. V. Center, reporting

that he was running a bit late and would be in later. Sipes’s telephone log of

May 30 contained the notation: “Mark — Be In Around 1:00 Brougham.” At

approximately 1:00 p.m., a person telephoned Sipes, identified himself as Mark,

stated he was running late because he had run out of gasoline, but would be there

in another hour or so.

Between 2:00 p.m. and 2:30 p.m. on May 30, Sipes noticed a 1978 22-foot

Brougham in the Nohr’s RV Center parking lot. A man identified at trial as

defendant asked to see Phillip Sipes, identifying himself as Mark Schmeck. Sipes

recognized defendant’s voice as that of the man who had telephoned him on

May 27 and earlier that day, May 30. Defendant was shirtless but soon donned a

jacket. Sipes looked inside the motor home and noticed that a section had been cut

out of the carpet. Defendant stated he had cut out that part of the carpet because it

was in poor condition. Defendant acted very “hyper, jumping around, wiping the

walls down.” Although defendant said he would “take any kind of offer” for the

motor home, Sipes was not interested in it at any price. Sipes suggested defendant

try Lee Peterson’s Motor Home Sales.

5

At approximately 3:00 p.m., a man identified at trial as defendant told a

salesman at Lee Peterson’s Motor Home Sales that he had a motor home to sell

“cheap.” Defendant stated the motor home had a book value of $8,000, but he

would take $2,000 for it right then. Paul Weber, who was at the dealership

purchasing propane, overheard this conversation. Weber followed defendant, who

said his name was Martin Freitas, and asked him about buying the motor home.

Defendant asked Weber whether he had cash in the bank, and allowed him to

inspect the motor home. In Weber’s truck, they drove to two different automatic

teller machines, and Weber gave defendant $300 in cash. Weber agreed to pay

defendant a balance of $1,200. Defendant gave Weber the motor home and

several documents, including the pink slip, a bill of sale, a certificate of

nonoperation, and a registration renewal form.

Later on May 30, Weber made efforts to determine whether defendant was

the legitimate owner of the motor home. Weber subsequently met with Rebecca

Germaine and accompanied her and her friends to the Alameda County Sheriff’s

Department, San Leandro Office, where Weber assisted in the preparation of a

composite drawing of defendant. On Saturday, May 31, Dennis Trede saw the

composite drawing, and he ultimately recognized the person depicted as

defendant.

Weber assisted the police in apprehending defendant. When defendant

telephoned Weber several times, asking him to deliver the balance of $1,200 to

“Stephanie Freitas,” Weber refused and stated that he only would deal with

defendant personally. One of the conversations, recorded on Weber’s father’s

answering machine, was played for the jury. Ultimately Weber and defendant

agreed to meet at 2:00 p.m. on June 1. The police equipped Weber with a “wire”

in order to record sound, and instructed him to signal officers by removing his

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glasses. When defendant appeared, Weber gave the signal, and defendant was

arrested on suspicion of vehicle theft.

Defendant made several statements connecting him to the commission of the

crime. Following his arrest on June 1, defendant was interviewed by the police.

Defendant was breathing hard, moving around a lot, and “seemed hyper, nervous.”

Defendant initially denied any involvement with the stolen motor home, noting

that he expected to inherit $85,000 in the coming months. When confronted by

the circumstance that he had been identified as having been inside the motor

home, defendant stated, “I’m gonna talk.” Defendant maintained that on May 29

or 30, a person named “Don,” whose last name defendant did not know, had

approached defendant about getting rid of a motor home that Don had inherited.

Initially, defendant told the police that he merely looked at, but did not drive, the

motor home. When the police mentioned that three persons had identified

defendant as having been inside the motor home, defendant stated, “[O]kay, now

I’m gonna tell you everything.” Defendant admitted driving the vehicle on

May 30 and stated that Don had offered to pay defendant $200 to sell it. Don

wanted a “quarter pound” (an apparent reference to drugs by weight), which was

worth approximately “three or four thousand dollars,” for the motor home.

Defendant stated he took the motor home to Nohr’s RV Center and Lee Peterson’s

Motor Home Sales, and eventually someone named Paul offered to buy the

vehicle.

Between 4:00 and 6:00 p.m. on May 30, defendant told Jamie Gronley he had

shot and killed a man in order to obtain his motor home. The killing took place

inside the motor home on C Street in Hayward behind the BART station, in an

industrial area. Defendant stated that he used the bathroom, and when he returned

he shot Mr. Germaine in the head. Germaine grabbed his head, turned, looked at

defendant, and asked him what he was doing. Whenever Germaine moved or

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attempted to say something, defendant shot him again. Defendant shot Germaine

five times in the head. As defendant told Gronley about the murder, he began to

cry. Defendant had a trifold wallet that, as he told Gronley, belonged to the

victim. Defendant changed his clothes, and he and Gronley went to the

Laundromat.

That weekend, defendant told Gronley that if he were arrested for murder, he

would implicate his enemy “Don,” who resembled defendant in height, hair color,

mustache, and beard. Following his arrest, defendant asked Gronley to marry him

so that she would not have to testify. Defendant also asked her to write statements

incriminating Don, because defendant knew his mail was being read.

Subsequently, Gronley wrote to defendant, “Remember babe, they can’t convict

you of something you didn’t do. I know you didn’t kill him. Just pray they find

Don.” At trial, Gronley testified that Don was not involved in the murder.

On the evening of June 4, defendant telephoned Gronley at Detton’s Bar and

asked her to move Germaine’s body. Defendant stated that if she followed

Foothill Road until it became another road, then she would locate the body

between a hairpin turn and an impassable bridge. The description was consistent

with an area near Gronley’s grandmother’s residence that defendant had visited

previously. Gronley became hysterical, and William Duffy, who was present with

Gronley, contacted the police. On June 5, Gronley and Duffy accompanied the

police to Foothill Road near Sunol. Germaine’s body, which had an odor of

rotting flesh, was discovered on a ledge below the roadway.

Gronley testified that she had contacted the police on June 3 and had

confessed that she had killed Germaine. During the police interview, Gronley was

unable to describe Germaine and had never seen the motor home. She stated that

two bullets had penetrated the windshield, a fact not reported by any witness who

had inspected the motor home during defendant’s sales efforts on May 30.

8

Gronley reported that the body was located near a construction site on Acosta

Boulevard in San Ramon. Following the interview, Gronley received a negative

response to her inquiry whether the officers believed her. Gronley testified that

she had confessed because she was in love with defendant and somehow felt

responsible for Germaine’s death.

Following his arrest, defendant made two telephone calls to Beverley Dupio,

a friend of Gronley’s with whom defendant was acquainted. In the first

conversation, defendant told Dupio that “he made a mistake of killing this man but

he didn’t think he deserved 15 years for it.” In the second conversation, defendant

sought Dupio’s assistance in arranging for defendant and Jamie Gronley to get

“married so she can’t testify against him.” Defendant also telephoned Wanda

Wilson and requested that, should anyone call her and ask “if [defendant] used a

lot of drugs to say yes.”

Certain physical evidence also connected defendant to the murder. At the

time of his arrest on June 1, defendant wore a black jacket, which had a bloodstain

possessing genetic markers that were consistent with Germaine’s blood but

inconsistent with defendant’s. Blood consistent with the victim’s was found on

the carpet and the inside shower door of the motor home. Defendant’s fingerprints

were found on a plastic cup inside the motor home and on the DMV registration

renewal form.

During several searches of William Duffy’s apartment, where defendant and

Gronley stayed the night following the victim’s disappearance, the police found a

.22-caliber revolver, identified as belonging to defendant, behind a drawer. On the

evening of May 30, Gronley observed defendant wiping down the gun and

attempting to stuff something into the barrel, stating that would change the

markings on “something like” the bullet shells. Ballistics evidence confirmed that

two bullets removed from the victim’s head were fired from that gun. A third

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bullet removed from the victim had markings consistent with having been fired

from that gun, but had insufficient detail to make a match. On the evening she

observed defendant with the gun, Gronley found approximately five empty shells,

which she placed into beer cans. Subsequently, the police found two spent

.22-caliber cartridges in an empty beer can outside in the apartment trash.

In attic areas of William Duffy’s apartment building, the police found a

DMV release of liability form bearing the names Martin Freitas, Lorin Germaine,

and Rebecca Germaine, a bag with six .22-caliber rounds of live ammunition, a

portion of the victim’s Kaiser identification card, and defendant’s black baseball

cap, which he had been seen wearing on Friday, May 30.

In an effort to disprove the defense theory of the case, the prosecution

introduced evidence to establish the whereabouts of Donald Willis and Jamie

Gronley on May 30. Willis testified that on that date, he went to his sister Janice

Suacci’s residence in Santa Rosa, and did not at any time between May 30 and

June 2 leave Santa Rosa and go to Hayward. His sister testified that she saw

Willis sometime after 5 p.m. on May 30. Edward Tanner, his brother George, and

Gronley testified that Gronley spent the morning of May 30 helping Edward

Tanner move out. At approximately 12:30 p.m., Edward Tanner dropped off

Gronley at William Duffy’s apartment. Duffy and Gronley testified that they

spent the afternoon together.

A fingerprint expert testified that he compared the identifiable but unmatched

latent prints found on the documents related to the motor home with the

fingerprints of Donald Willis and concluded that none matched.

2. Defense evidence

Detective Muniz found a second gun in the attic crawl space outside William

Duffy’s apartment. The weapon was a very old, single-shot, .50-caliber, ball-and-

cap type, and Muniz did not turn it in for ballistics or fingerprint testing. During

10

Muniz’s interview with Wanda Wilson, she said that defendant had left her

residence after 12:30 p.m. on May 27.2

On May 30, Officer Jim Fontes of the Fremont Police Department took a

missing person’s report from Rebecca Germaine, who described the possible

suspect as a White male, about 28 years of age, 6 feet tall, 170 pounds, of medium

complexion, without facial hair, with long dark hair tied in a bun and a ponytail

extending from the bun. Rebecca stated that the suspect’s name was Mike or

something similar, and that he was going to pay for the motor home with money

from a $15,000 trust fund. Rebecca personally did not observe the suspect, but

had obtained the description from one of her husband’s coworkers.

Monica Hall, defendant’s aunt, testified that on April 4 she summoned the

police to a residence she owned, where defendant and Gronley were living without

her permission. Hall subsequently found paperwork inside the residence with

handwriting that appeared to be Gronley’s, apparently containing directions to an

area near the location where Mr. Germaine’s body was found. Hall believed that

in April 1986, defendant wore his hair straight down, and she never had seen him

with a bun or a pony tail.

Sally Hughes, Pacific Bell’s custodian of records for Northern California,

testified that during the period of mid-May to mid-June 1986, only one collect

telephone call (on June 7) was received at Detton’s Bar, from South Lake Tahoe.

Between mid-May and mid-August 1986, there were no collect telephone calls

from the men’s facility at the Santa Rita Jail to Beverly Dupio. During June and

2

During the prosecution’s case-in-chief, Wilson testified that defendant left

the residence at approximately 9:00 a.m. on May 27.

11

July 1986, eight collect telephone calls were made from the women’s holding unit

or dormitory at Santa Rita jail to Dupio.

3. Rebuttal evidence

Between April and May 1986, Gronley received a number of telephone calls

from defendant while he was incarcerated in the Santa Rita Jail. When Gronley

asked defendant how he could telephone from the jail without calling collect,

defendant said he used a satellite or calling card number.

Raymond Ruiz, a product manager at Pacific Bell, testified that starting in the

fall of 1985 through the summer of 1986, the company received complaints from

long distance carriers concerning telephone calls that were being made from a

number of penal institutions such as Santa Rita Jail, and were being billed to the

carrier. Ruiz testified it was possible to reach a long distance carrier from a public

telephone in several ways, including the use of a personal identification number or

a seven-digit number beginning with “950.” Pacific Bell made efforts to block

such calls.

Mark Ferrara, a security investigations administrator at Pacific Bell, testified

that the company had received complaints about fraudulent use of satellite codes

by inmates. A telephone call that was made utilizing a satellite code would not

appear as a collect call on the recipient’s telephone records.

Deputy Sheriff James Donnelly testified that on June 4, 1986, the Santa Rita

compound in which defendant was incarcerated had coinless telephones that were

available to inmates at all times.

B. Penalty phase

1. Prosecution evidence

Documentary evidence was introduced that in 1984 defendant had suffered a

prior felony theft conviction in the State of Washington.

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2. Defense evidence

Several family members testified regarding defendant’s childhood and youth.

Defendant’s father, Frank Schmeck, worked as an instrument technician at the

Alameda Naval Air Station. Defendant was born on February 3, 1957. Six

months later, defendant’s mother, Jacqueline, left Frank, taking with her defendant

and his older sister, Lonnie. The children continued to have regular contact with

Frank until defendant was approximately five years of age, when Frank remarried

and moved to Washington. When defendant was about six or seven years of age,

Jacqueline married Bill Freitas.

Jacqueline was a hypochondriac and spent a great deal of time in bed during

the day. Defendant and Lonnie were forced to make their own breakfast and

lunch, and to do other chores around the house. When Lonnie was only in the

second grade, she registered defendant for kindergarten. When defendant was

seven years of age, Jacqueline would disappear for up to two weeks at a time.

Jacqueline treated defendant well, but was not kind to Lonnie. When defendant

was approximately nine years of age, Jacqueline on several occasions threatened

her children with a weapon, and she attempted to stab defendant with a knife and a

fork. By the time Lonnie was a teenager, the immediate family ascertained that

Jacqueline had a substance abuse problem, for which Jacqueline ultimately

received treatment. When Jacqueline was shot to death in 1979, defendant was

traumatized.

Defendant’s stepfather, Bill Freitas, was verbally and physically abusive to

defendant, hitting him several times a month during a five- or six-year period.

Defendant never struck back.

When defendant was 16 years of age, he moved to Washington to live with

his father, his father’s second wife, and their adopted son, Frankie. Although

defendant initially skipped classes at school, he stopped doing so as the result of

13

his father’s efforts. Defendant was not a discipline problem, and his father never

struck him. Defendant was a member of several varsity sports teams, and shortly

before his graduation he began to work at a local McDonald’s restaurant.

Defendant had a close relationship with his stepbrother, Frankie. Defendant

opposed the use of drugs and alcohol, which influenced Frankie never to try using

these substances.

Defendant resided with his father until after defendant’s graduation from

high school, when he found his own apartment nearby. Subsequently, defendant

moved in with his sister Lonnie for approximately one year. Defendant worked at

two jobs during this period. Defendant married Michelle Sather in 1978, and they

moved to Washington. The couple owned their own home, and defendant had his

own automobile body-and-fender-work business. Several years later, defendant

and Michelle divorced, and defendant had a son, Justin, with another woman,

Mary Isenman. In 1985, defendant left Mary, and started seeing a woman named

Jamie (presumably Jamie Gronley).

Defendant’s high school football coach, a fellow member of the football

team, and defendant’s ex-wife all testified regarding defendant’s nonaggressive

character. Defendant’s stepbrother Frankie and defendant’s ex-wife described

defendant’s thoughtfulness.

When defendant’s sister Lonnie saw defendant in February 1986, defendant

was gaunt and had a greenish-yellow pallor to his skin. Lonnie suspected he was

using drugs.

Dr. Stephen Pittel, a psychologist, testified generally about the effect of

amphetamines, including methamphetamines. A person who, during the

afternoon, is hyperactive, sweating, rubbing his hands together, and talking to

himself, would exhibit symptoms consistent with methamphetamine use, but

probably those symptoms would not have been caused by use of that drug during

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the previous night. Sweating, hand rubbing, and hyperactivity could be caused by

many things other than amphetamine use, however. A person who is nervous and

excitable, and experiences sudden weight loss and has a greenish-gray pallor to his

or her skin, would exhibit signs consistent with the chronic use of

methamphetamine or some other stimulant. A person who engages in chronic

amphetamine use can become fearful and suspicious to the point of arming

oneself. Dr. Pittel did not interview or test defendant. Dr. Pittel reviewed the

preliminary hearing transcript in the present proceedings but, with the possible

exception of one brief excerpt, did not review the trial transcript.

Jerry Enomoto, a former Director of the Department of Corrections, testified

that a person serving a sentence of life imprisonment without possibility of parole

is permitted to work in prison, and that such work can have a rehabilitative effect.

II. DISCUSSION

A. Pretrial issues

1. Asserted erroneous excusal of prospective jurors

Defendant contends that his death sentence must be reversed because the trial

court erroneously excused for cause four prospective jurors based upon their views

concerning the death penalty, in violation of defendant’s rights under the Sixth,

Eighth, and Fourteenth Amendments to the United States Constitution.3

3

Although defendant also asserts that his conviction must be reversed on this

basis, an erroneous excusal of a prospective juror based upon his or her views
regarding capital punishment would result in the reversal only of the death
sentence. (Gray v. Mississippi (1987) 481 U.S. 648, 668 (Gray).)

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a. Factual background

i. Prospective Juror R. V.

During sequestered Hovey voir dire,4 the trial court asked Prospective Juror

R. V., “Do you know of any reason why you could not be a juror in this case?”

The juror responded, “Well, I consider execution by the state a sort of barbaric

ritual and would find it difficult to render a judgment that would say a particular

person should be executed by the state. I consider that a tad hypocritical of the

state trying to say that murder is wrong and turn around and kill a citizen.”

Prospective Juror R. V. stated he would not have any trouble making a judgment

of fact, such as would occur at the guilt phase of the trial. He added, “[B]ut it[]

seems that that final stage would be a determination of whether or not the moral

quality of someone is such that this person deserves to be executed by the state

and considering execution rather a sort of barbaric act it would . . . require a sort of

extremely heinous moral quality on the part of the defendant to deserve such a

barbaric treatment so . . . . If the final phase is simply [a] judgment of fact then

there wouldn’t be any problems I don’t think. If the final phase is a moral

judgment that says the moral character of this person is such that this person

deserves to be executed I would have to — have difficulty rendering a judgment

like that.” The trial court then stated that, as it understood Prospective Juror

R. V.’s statements, “you are not concerned that your views of the death penalty

4

The 1989 trial in the present case preceded the passage of Proposition 115

in 1990, and therefore was governed by Hovey v. Superior Court (1980) 28 Cal.3d
1, 80 (Hovey). All prospective jurors whose exclusion forms the basis of a
challenge on appeal were questioned during the Hovey voir dire (that portion of
the voir dire in which a prospective juror is questioned concerning his or her views
pertaining to the death penalty in the absence of the other prospective jurors).

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would [a]ffect your ability to render a verdict in the first part of trial . . . but you

are concerned because of your views as to how that might [a]ffect your ability to

serve in the second phase of the trial, is that true? And your ability to serve on a

jury in a case other than this type would not be [a]ffected but this one might be?”

Prospective Juror R. V. responded: “This is true.”

In response to questioning by defense counsel, Prospective Juror R. V. posed

the question, “[W]hen you are putting this on the scale of values how do you draw

the line as far as determining whether or not someone should be executed or put

away for life?” After a lengthy response by counsel regarding the weighing of

aggravating and mitigating circumstances, and discussion between counsel and the

court, Prospective Juror R. V. stated: “Presently I see that if someone is

permanently removed from society and no longer a danger to citizens I don’t see

any reason for going through with further acts of barb[ar]ism, that is an execution.

So I don’t see the circumstances under which I could make the judgment that so

and so should be executed.” Defense counsel subsequently asked, “[T]here is no

set of circumstances either about the crime or about the defendant or about the

both of them under this general factual outline that the court has given of this case

under which you could vote for the death penalty?” Prospective Juror R. V.

responded, “The reason I find it difficult to imagine right now is if someone is

permanently removed from society and no longer a danger to any of his or her

fellow citizens, what would be the rationale for executing the person? . . . I don’t

see the rationale at the moment.” Prospective Juror R. V. acknowledged, “The

proponent could present arguments for execution that I haven’t heard or

considered enough to convince me that so and so should be executed so presently I

lack that rationale and in the course of the proceedings the prosecution could

present the rationale for execution that could convince me.”

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Prospective Juror R. V. was then questioned by the prosecutor, who asked,

“[I]s Hitler one of those types of people that you might consider voting for the

death penalty if he were still alive?” Prospective Juror R. V. responded, “Well, if

I was convinced that there is some way he could be broken out of prison then I

could vote for the death penalty for Hitler.” When asked whether he ever could

imagine voting for the execution of a person who intentionally killed during a

robbery, Prospective Juror R. V. said, “Right now I do not imagine myself voting

for an execution. That does not rule out a very convincing presentation by the

prosecution that would change my mind.” Prospective Juror R. V. agreed that he

had “a strong bias against the death penalty law,” and stated that he voted against

and disagreed with such laws. When asked whether there was any practical

situation in which he could see himself imposing the death penalty, R. V. stated

that not only would he have to be convinced that defendant had committed a rather

heinous crime and that there were very few possibilities of repentance and

rehabilitation, but also “that in the last section of the trial that I’m rendering a

judgment of facts according to the law and not making a moral statement that the

death penalty is good.”

When the prosecutor challenged Prospective Juror R. V. for cause pursuant

to Wainwright v. Witt (1985) 469 U.S. 412 (Witt), the trial court sustained the

challenge over defense objection, explicitly finding “from this juror’s demeanor

and responses that this juror’s views would prevent or substantially impair his

ability to be neutral and follow the court’s instruction.” After defense counsel

reiterated his objection, the trial court added that “after viewing the questioning of

[R.V.] as a whole, I was left . . . with the definite impression that he would be

unable to faithfully and impartially apply the law . . . .”

18

ii. Prospective Juror M. M.

In response to the trial court’s questioning, Prospective Juror M. M. stated, “I

really strongly feel I’m not sure that I could under any circumstances vote for the

death penalty.” The court inquired whether she was concerned “that if there were

a penalty phase in the trial that you would not enter that phase in a neutral position

as it were?” She responded, “Yes.” Defense counsel subsequently asked, “Are

there certain types of cases, certain types of factual situations where you feel the

death penalty would be appropriate?” Prospective Juror M. M. responded, “I

don’t think so. I mean I have concerns. I feel strongly against the death penalty.

However, it gets a little gray, especially where there are crimes against women and

children, so ― but morally I’m against the death penalty.” Defense counsel asked,

“Do you feel . . . there are certain situations where you could feel it was

appropriate?” Prospective Juror M. M. said, “I’m not sure. I’ve been trying to

figure this out since last week and I’m not sure how . . . it would come out. So I

think that I feel very opposed to the death penalty. So I think that I would tend to

go more in that direction. I don’t know how to be any clearer than that.” When

the prosecutor challenged Prospective Juror M. M. for cause under Witt, supra,
469 U.S. 412, defense counsel responded, “submitted.” The trial court sustained

the challenge.

iii. Prospective Juror M. W.

In response to the court’s inquiry as to whether there was any reason she

could not serve as a juror in the case, Prospective Juror M. W. stated, “I don’t

know that in the end if I could really vote for the death penalty. . . .” The court

inquired, “[A]re you telling me . . . you are concerned that you would be unable

regardless of the facts and circumstances presented in the second phase that you

are concerned you would have difficulty regardless of what those facts and

circumstances were considering or voting for the death penalty, am I

19

understanding you correctly?” Prospective Juror M. W. responded, “Yeah. Not so

much what I would think in the guilt phase but actually having to decide the death

penalty.” The court inquired, “You don’t think you could do that?” Prospective

Juror M. W. responded, “I don’t think I could do it.” The court subsequently

inquired: “But the point is whether you in fact could make a choice or exclude

one of those choices because of your state of mind. That’s the question.”

Prospective Juror M. W. responded, “This is so hard for me. I know it is

California law and a lot of times things that I read in the paper I say of course I

believe in the death penalty. You know honestly I feel like I might have to

exclude that as one of my choices.”

Defense counsel, referring hypothetically to an “extreme case” in which

“your conscience as an individual says there is no redeeming factor about this

situation,” inquired: “[C]ould you bring yourself to say I don’t think that person

should live any longer and you could sign [a]long with the other 11 people a

verdict that says the death penalty?” Prospective Juror M. W. responded, “I don’t

feel I could. I wish I could say that I could do that but —” Defense counsel

subsequently inquired: “I guess the bottom line after we have kicked this around

what say you if the circumstances demanded it if the aggravating factors

substantially outweighed the mitigating circumstances could you go into that

situation and give it a fair shot as to both sentencing choices, that’s what it boils

down to?” Prospective Juror M. W. replied, “I don’t think I could.”

The prosecutor challenged Prospective Juror M. W. for cause under Witt,

supra, 469 U.S. 412, and defense counsel responded, “submitted.” The trial court

sustained the challenge.

iv. Prospective Juror H. L.

Prospective Juror H. L. was asked by the trial court, “[D]o you see any

reason why you could not serve on this jury?” The prospective juror responded,

20

“Well, in my conscience I don’t believe in the death penalty in most cases. Under

very rare circumstances would I ever consider the death penalty.” The court

stated, “[L]et me ask you this. Is it your state of mind, is it such that you could

never vote for the death penalty regardless of what circumstances might be

presented to you?” Prospective Juror H. L. replied, “Of a case of this kind

definitely.” The following colloquy ensued: The court: “That is your state of

mind?” H.L.: “Yes.” The court: “You could not in a case such as this vote for

the death penalty regardless of what circumstances, aggravating and mitigating

circumstances would be presented?” H.L.: “That is correct. . . . It would have to

be another type of case where I could possibly consider it.” When the court

inquired, “But that would not be a case where the charge is murder with the

special circumstance that I have described here?,” Prospective Juror H. L. replied,

“Yes.”

Defense counsel asked Prospective Juror H. L., “In your mind if it was this

type of case very generally, this special circumstance being an intentional killing

during the course of a robbery and there were very severe aggravating factors that

shocked you . . . that you found were so abhorrent and fit into that circumstance,

you could consider and be open to both penalties?” Prospective Juror H. L.

responded, “I still would not consider the death penalty. That is not the

circumstances I’m talking about . . . More like a mass murder or like crimes

against humanity or political crimes.” The court then inquired, “What kinds of

crimes?” Prospective Juror H. L. replied, “Like the Eichmann type murders.”

Defense counsel inquired, “So am I correct in understanding you that in this type

of factual situation of a potential killing during the course of a robbery that you

would not be open to both penalties under any circumstances?” Prospective Juror

H. L. responded, “Under any circumstances, yes.” The prosecutor challenged

21

Prospective Juror H. L. for cause under Witt, supra, 469 U.S. 412, and defense

counsel responded, “submitted.” The court sustained the challenge.

b. Analysis

“The applicable law is settled. The trial court may excuse for cause a

prospective juror whose views on the death penalty would prevent or substantially

impair the performance of that juror’s duties” in accordance with the court’s

instructions and the juror’s oath. (People v. Smith (2003) 30 Cal.4th 581, 601

(Smith); Witt, supra, 469 U.S. at p. 424 [setting forth that standard as the

applicable federal standard].) “The standard of review of the court’s ruling

regarding the prospective juror’s views on the death penalty is essentially the same

as the standard regarding other claims of bias. If the prospective juror’s

statements are conflicting or equivocal, the court’s determination of the actual

state of mind is binding. If the statements are consistent, the court’s ruling will be

upheld if supported by substantial evidence.” (People v. Horning (2004) 34

Cal.4th 871, 896-897.)

Here, with regard to the excusal of Prospective Jurors M. M., M. W., and

H. L., defendant merely submitted the question to the trial court. Hence, as a

practical matter, he “did not object to the court’s excusing the juror, but . . . also

refused to stipulate to it.” (People v. Cleveland (2004) 32 Cal.4th 704, 734.)

Although “this failure to object does not forfeit the right to raise the issue on

appeal, . . . it does suggest counsel concurred in the assessment that the juror was

excusable.” (Id. at pp. 734-735; see Witt, supra, 469 U.S. at pp. 434-435 [in light

of counsel’s failure to question the prospective juror or object to her excusal for

cause, “it seems that . . . no one in the courtroom questioned the fact that her

beliefs prevented her from sitting”].)

Moreover, with respect to all four of the prospective jurors in question,

substantial evidence supports the trial court’s finding that, based upon their

22

demeanor and responses, the views of these prospective jurors would prevent or

substantially impair the performance of their duties. All four prospective jurors

indicated at various points during their voir dire that, in light of their views

concerning the death penalty and the normative role assigned to the jury under

California’s death penalty law, they were unable to state that they could consider

imposing the death penalty in this case as a reasonable possibility. Thus,

Prospective Juror R. V. repeatedly indicated that although his views regarding the

death penalty would not affect his ability to make a finding of fact, those views

would affect his ability to make “a moral judgment that says the moral character of

this person is such that this person deserves to be executed.” Prospective Jurors

M. M., M. W., and H. L. all indicated that they could not state that they would be

able to consider imposing the death penalty, either in any case or in the kind of

case at issue here. Under these circumstances, the trial court properly could find

that each juror’s views regarding the death penalty would prevent or substantially

impair the performance of his or her duties. (See, e.g., People v. Ashmus (1991)

54 Cal.3d 932, 963 [a prospective juror must be able to do more than simply

consider imposing the death penalty at the penalty phase; he or she “must be able

to . . . consider imposing the death penalty as a reasonable possibility”].)

Defendant acknowledges that numerous decisions of this court have held that

when a prospective juror’s statements are conflicting or equivocal, the trial court’s

determination as to the juror’s actual state of mind is entitled to deference. (See,

e.g., People v. Horning, supra, 34 Cal.4th at p. 896; People v. Mincey (1992) 2

Cal.4th 408, 456-457; People v. Frierson (1991) 53 Cal.3d 730, 742-743.)

Defendant contends, however, that this long and well-established line of authority

is inconsistent with the United States Supreme Court decisions in Gray, supra, 481

U.S. 648, and Adams v. Texas (1980) 448 U.S. 38 (Adams), and should be

overruled. Relying in substantial part upon the transcripts of the jury voir dire and

23

the arguments advanced in the briefs that were filed in Gray and Adams, defendant

contends that those cases “made clear that when a prospective capital case juror

gives equivocal responses, the state has not carried its burden of proving that the

juror’s views would ‘prevent or substantially impair the performance of his duties

as a juror.’ ” On this basis, defendant contends that the trial court improperly

excused the four prospective jurors.

We reject defendant’s contention. In its decision in Witt, supra, 469 U.S.

412 — decided several years after Adams — the high court clearly explained that

despite “lack of clarity in the printed record . . . there will be situations where the

trial judge is left with the definite impression that a prospective juror would be

unable to faithfully and impartially apply the law. . . . [T]his is why deference

must be paid to the trial judge who sees and hears the juror.” (Witt, supra, 469

U.S. at pp. 425-426; id. at p. 428 [a trial court’s finding concerning a prospective

juror’s state of mind “is based upon determinations of demeanor and credibility

that are peculiarly within a trial court’s province. Such determinations [are]

entitled to deference . . . on direct review . . . .” (fn. omitted)].) Nothing in the

high court’s subsequent decision in Gray, supra, 481 U.S. 648, purports to depart

from or alter Witt’s holding with regard to the deference that properly must be

accorded to a trial court’s finding concerning a prospective juror’s state of mind;

indeed, the issue before the court in Gray did not involve the determination of the

correct standard for excusing a prospective juror under Witt at all, but rather the

standard of prejudice that applies when a prospective juror improperly has been

excused for cause under Witt. (Gray, supra, 481 U.S. at pp. 659-668.)

Accordingly, there is no basis for reconsidering this court’s uniform line of

decisions on this point.

In sum, we conclude that the trial court did not err under the applicable

federal constitutional standard in excluding the four prospective jurors for cause.

24

2. Asserted Caldwell error

Defendant contends that because the prosecutor told a “fully qualified juror

that a death sentence was only a ‘recommendation’ that defendant be executed in

the future, and the trial court was forced to discharge this prospective juror as a

consequence, reversal is required.”

During the Hovey voir dire of Prospective Juror S. W., the prosecutor made

the following remark: “If the aggravating factors are substantially heavy in your

mind in an ethical and moral value then you may impose the death penalty and it’s

a vote, it’s a recommendation to the court the defendant should be executed at

some time in the future.” The prosecutor then questioned Prospective Juror S. W.

about her occupation. Several days later during the jury selection, defendant

moved that the court excuse Prospective Juror S. W. Relying upon Caldwell v.

Mississippi (1985) 472 U.S. 320 (Caldwell), defense counsel expressed concern

that the prosecutor’s comment might cause Prospective Juror S. W., were she

selected as a juror, to inform other jurors, “Well, it’s all right, we can vote for a

certain penalty because it’s subject to the court’s review, if we made a mistake it

can be taken care of.” Defense counsel noted that “since this is the only juror such

a remark has been made to, . . . I would ask the court to excuse the juror,” and

requested that the court “admonish the district attorney not to make a comment

like that in the future, either in jury selection or in the final argument.” After

affording the prosecutor an opportunity to review and present relevant authority,

the trial court took the matter under submission and ultimately excused

Prospective Juror S. W. for cause.

Defendant contends that the prosecutor violated Caldwell by making the

comment in question, and that “[b]ased on this Caldwell violation, the trial court

was forced to discharge [Prospective Juror S. W.] from serving on the jury. . . .

[B]ecause the prosecutor’s Caldwell violation resulted in the exclusion of an

25

otherwise fully qualified juror, reversal is required,” and it is unnecessary to

analyze whether the error caused prejudice.

In raising this issue, defendant cites Wainwright v. Witt, supra, 469 U.S. 412,

and Witherspoon v. Illinois (1968) 391 U.S. 510 (Witherspoon), as well as

Caldwell. Witherspoon and Witt address the issue of potential juror bias regarding

the death penalty, as does Caldwell, but the decisions differ in certain critical

respects. Error arising under Witherspoon and Witt is “rooted in the constitutional

right to an impartial jury” under the Sixth Amendment, and is reversible per se.

(Gray, supra, 481 U.S. at p. 668.) The excusal of prospective jurors who

improperly are determined to be biased against the death penalty may lead to a

jury “ ‘uncommonly willing to condemn a man to die.’ ” (Adams, supra, 448 U.S.

at pp. 43-44; see Gray, supra, 481 U.S. at p. 666.)

By contrast, Caldwell error is based upon the Eighth Amendment, and

focuses on the reliability of the death penalty verdict “as well as bias in favor of

death sentences” when a jury improperly is told that responsibility for the penalty

verdict lies elsewhere. (Caldwell, supra, 472 U.S. at p. 330; id. at p. 333 [the risk

that an invitation to the jury to rely upon appellate review “will generate a bias

toward returning a death sentence is simply too great”]; Sawyer v. Smith (1990)
497 U.S. 227, 244 [“our concern in Caldwell was with the ‘unacceptable risk’ that

misleading remarks could affect the reliability of the sentence”].) Caldwell error

creates “the danger of a defendant’s being executed in the absence of any

determination that death was the appropriate punishment.” (Caldwell, supra, 472

U.S. at p. 332.) Thus, unlike Witherspoon and Witt, Caldwell does not address

error involving jurors who improperly are determined to be biased regarding the

death penalty and then are excused; rather Caldwell requires that a reviewing court

determine whether the jury was biased toward the death penalty because of “state-

26

induced suggestions that the sentencing jury may shift its sense of responsibility.”

(472 U.S. at p. 330.)

In the present case, the prospective juror to whom the prosecutor’s

questioned comment was made never was impaneled, but was excused at the

request of defendant. That circumstance precludes any claim on appeal that a

juror biased in favor of the death penalty participated in determining the

punishment imposed upon defendant, or that the penalty verdict was rendered

unreliable because of the prosecutor’s comment during sequestered voir dire. (See

Smith, supra, 30 Cal.4th at pp. 602-603 [the defendant did not suffer any prejudice

from prosecutor’s comment on voir dire allegedly undermining the seriousness of

a death penalty verdict, because the prospective juror did not sit on the jury].) The

circumstance that the prosecutor’s action prompted defendant’s motion to excuse

the prospective juror does not alter that conclusion.

Moreover, defendant is not free to contend on appeal that the trial court erred

in granting his motion to excuse the prospective juror for cause. It is clear that

other measures short of excusal ― for example, subsequent clarifying instruction

by the trial court ― were available to remedy any misunderstanding arising from

the prosecutor’s single comment made during sequestered voir dire. Comments

that might lead to Caldwell error are capable of subsequent correction, and a

reviewing court may consider other prosecutorial argument or the trial court’s

instructions in determining whether any Caldwell claim is valid. (Caldwell, supra,

472 U.S. at p. 333 [“the uncorrected suggestion that the responsibility for any

ultimate determination of death will rest with others presents an intolerable danger

that the jury will in fact choose to minimize the importance of its role” (italics

added)]; id. at p. 339 [the “trial judge in this case not only failed to correct the

prosecutor’s remarks, but in fact openly agreed with them”].) In the present case,

27

defendant did not seek corrective action other than the excusal granted by the trial

court. No basis for reversal appears.

3. Asserted Wheeler error

Defendant contends that reversible error arose under the Sixth and Fourteenth

Amendments because the prosecutor’s stated reasons for exercising peremptory

challenges against Jewish prospective jurors were mere pretexts, and that the trial

court applied an incorrect standard in ruling on defendant’s Wheeler motion.

In People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler) we held “ ‘that the use

of peremptory challenges by a prosecutor to strike prospective jurors on the basis

of group membership violates the right of a criminal defendant to trial by a jury

drawn from a representative cross-section of the community under article I,

section 16, of the California Constitution. Subsequently, in Batson v. Kentucky

(1986) 476 U.S. 79, 84-89 [(Batson)] . . . the United States Supreme Court held

that such a practice violates . . . the defendant’s right to equal protection of the

laws under the Fourteenth Amendment to the United States Constitution.’ ”

(People v. Catlin (2001) 26 Cal.4th 81, 116.) Religious groups are cognizable

under Wheeler. (See, e.g., People v. Gutierrez (2002) 28 Cal.4th 1083, 1122;

Wheeler, supra, 22 Cal.3d at p. 276.) The United States Supreme Court has not

similarly extended Batson, although some state and federal courts have done so.

(See Miller-El v. Dretke (2005) __ U.S. __ [125 S.Ct. 2317, 2342] (conc. opn. of

Breyer, J.) [noting “[s]ome lower courts have extended Batson’s rule to religious

affiliation as well”].)5 Assuming without deciding that Batson, like Wheeler,

5

Defendant’s claim rests upon an assertion of discrimination on the basis of

religion, so we need not explore the extent to which a Jewish background may
constitute a racial or ethnic classification for the purposes of an equal protection
analysis under Batson v. Kentucky, supra, 476 U.S. 79. (See Shaare Tilfila

(footnote continued on next page)

28

applies to peremptory challenges based upon bias against religious groups, we

nevertheless conclude that defendant has failed to demonstrate purposeful

discrimination against prospective Jewish jurors. (See Purkett v. Elem (1995) 514

U.S. 765, 768 [“the ultimate burden of persuasion regarding racial motivation rests

with, and never shifts from, the opponent of the strike”]; Batson, supra, 476 U.S.

at p. 93 [the burden is “on the defendant who alleges discriminatory selection of

the venire ‘to prove the existence of purposeful discrimination’ ”].)

The high court recently restated the Batson standard as follows: “First, the

defendant must make out a prima facie case ‘by showing that the totality of the

relevant facts gives rise to an inference of discriminatory purpose.’ [Citations.]

Second, once the defendant has made out a prima facie case, the ‘burden shifts to

the State to explain adequately the racial exclusion’ by offering permissible race-

neutral justifications for the strikes. [Citations.]” (Johnson v. California (2005)

___ U.S. ___ [125 S.Ct. 2410, 2416], fn. omitted (Johnson).) Third, once the

prosecutor produces a neutral explanation for the challenges, the trial court must

evaluate the “ ‘persuasiveness of the justification’ ” and “ ‘determine[] whether the

opponent of the strike has carried his burden of proving purposeful

discrimination.’ [Citation.]” (Id. at p. ___ [125 S.Ct. at p. 2418].)

In Johnson, the high court also concluded that an element of the Wheeler

standard for determining whether a prima facie case was established is

(footnote continued from previous page)

Congregation v. Cobb (1987) 481 U.S. 615, 617 [construing 42 U.S.C. § 1982 to
permit a Jew to state a claim of racial discrimination because, at the time of its
enactment, Jews were “among the peoples then considered to be [a] distinct”
race]; see also Saint Francis College v. Al-Khazraji (1987) 481 U.S. 604 [holding
that Arab ancestry constitutes a racial classification within the meaning of 42
U.S.C. § 1981].)

29

inconsistent with that the standard announced in Batson. (Johnson, supra, ___

U.S. at p. ___ [125 S.Ct. at p. 2416].) In the present case, the trial court elicited

the prosecutor’s reasons for the peremptory challenges, and thus the issue whether

defendant established a prima facie case is moot. (Hernandez v. New York (1991)
500 U.S. 352, 359 (Hernandez); People v. Welch (1999) 20 Cal.4th 701, 745-746

(Welch).) We proceed to the third step of the Batson analysis and, specifically, to

defendant’s claim that the prosecutor’s justifications were pretextual.

a. Asserted pretextual justifications for excusal

Defendant asserts that the prosecutor’s stated reasons for excusing

Prospective Jurors D. H. and M. B. were not supported by the record but instead

were pretextual.

On May 10, 1989, and July 5, 1989, Prospective Jurors D. H. and M. B. were

examined, respectively, on voir dire. In response to defense counsel’s

questioning, Prospective Juror D. H. stated that he was “raised Jewish” and

continued to participate in certain ceremonies of that religion. Also in response to

questioning by defense counsel, Prospective Juror M. B. stated that he had

attended the Hebrew University of Jerusalem for four months, that he practiced

“certain things to do with Judaism,” and that religion was “personally very

important.”

On September 11, 1989, these and all other qualified prospective jurors

returned to the court for the exercise of peremptory challenges. At this time,

Prospective Juror D. H. was questioned during sequestered voir dire regarding a

letter he had written to the court regarding his aversion to cigarette smoke.6

6

Prospective Juror D. H.’s letter dated May 24, 1989, stated in relevant part:

“I am allergic and averse to cigarette smoke. I have asthma and have developed a
wheezing cough after indoor exposure to cigarette smoke. I work in the field of

(footnote continued on next page)

30

Immediately following this voir dire, the prosecutor exercised a peremptory

challenge against Prospective Juror D. H. Subsequently, the prosecutor

challenged Prospective Juror M. B. After the latter peremptory challenge,

defendant brought a Wheeler motion, alleging that the prosecutor “has used his

challenges to strike most of the members of” the group of Jewish prospective

jurors. Defendant also cited Batson, supra, 476 U.S. 79.7

The prosecutor noted that both Prospective Jurors D. H. and M. B. had given

“terrible” answers when they were examined “some months ago. I made my

decisions long ago. . . . I didn’t even realize they were Jewish until [defense

counsel] mentioned it this morning.” The trial court subsequently noted that the

prosecutor had mentioned his reasons for excusing these prospective jurors and

asked him to state the reasons again. The prosecutor responded that: “In my

estimation neither of them would ever impose the death penalty against”

defendant. The trial court stated, “All right. I’d like you to be a bit more specific

to them individually,” and requested that the prosecutor review his notes during

the noon recess.

At the afternoon hearing on the motion, the prosecutor noted that Prospective

Juror D. H. had written a letter to the trial court stating that he was allergic to

cigarette smoke and did not want to be in a place where persons smoked. The

(footnote continued from previous page)

air pollution and public health, and am mindful of other potential health hazards of
passive exposure to such smoke. I feel that exposure to cigarette smoke would
make me uncomfortable, impatient, and unable to function at full capacity as a
juror. I hope you might consider excusing me from the jury if smoking will be
permitted indoors during the trial or deliberations.”

7

The defense asserted that an additional prospective juror, whose name was

mentioned at the time the peremptory challenges were exercised, was Jewish.

31

prosecutor “felt that because of that he might not be able to get along with others.”

The prosecutor, citing the record of voir dire in May 1989, added that Prospective

Juror D. H. had stated that it was possible he had feelings that would prevent him

from voting to execute a person. The prosecutor explained that the “overriding

statement” by Prospective Juror D. H. that led to the peremptory challenge was

that this juror might consider it a mitigating circumstance if a suspect committed a

crime, was cornered by a police officer, and then shot the police officer.

Again referring to the record of voir dire, the prosecutor stated that

Prospective Juror M. B. appeared to have difficulty understanding the weighing of

aggravating and mitigating circumstances and the relationship between a special

circumstance and the penalty. As the prosecutor pointed out, that prospective

juror also “felt that the death penalty should be limited [to] heinous crimes,” such

as those committed by Charles Manson or Richard Ramirez. Prospective Juror

M. B. stated he believed he could not impose the death penalty for crimes “lesser”

than those committed by Manson and Ramirez, but then said he thought he could.

The prosecutor also pointed to the prospective juror’s statement that a “past

history of violence may weigh more heavily with respect to aggravating factors

and mitigating circumstances.” The prosecutor noted that because “defendant

doesn’t have a terribly heavy history of violence, I felt that Mr. [M. B.] would not

be a good juror for me.” Prospective Juror M. B. also had indicated that an

attempted home robbery he had experienced had not had a profound impact on

him. The prosecutor stated: “So I felt with Mr. [M. B.’s] attitude that he would

not be a proper juror,” and “in neither of these gentleman’s cases did I consider

their religion at all.” The prosecutor stated that he had made his “decisions on

both of these guys the same day they were here as I did with everybody else.”

32

The trial court considered defendant’s motion in light of the prosecutor’s

explanations and found defendant had failed to persuade the court that the

challenges were motivated by bias “alone.”

Contrary to defendant’s claim, we conclude the record does not establish that

the prosecutor’s justifications were pretextual. Although the prosecutor stated he

did not realize these prospective jurors were Jewish until defense counsel

mentioned this, despite the circumstance the record of the voir dire reflects that

both prospective jurors briefly discussed their affiliation with Judaism, the

relevant voir dire examination of these prospective jurors had taken place a

number of months prior to the occasion on which the prosecutor exercised the

peremptory challenges, and the prosecutor had not reviewed the transcripts of the

voir dire when he initially made the challenges.

The prosecutor also explained he had decided to excuse Prospective Juror

D. H. on the same day the prospective juror was questioned on voir dire —

May 10, 1989. As defendant observes, however, the prosecutor also specified that

he relied upon the letter Prospective Juror D. H. wrote to the court requesting that

he be excused if indoor cigarette smoking would be allowed — dated May 24,

1989. Considered in context, the prosecutor’s comments indicate that his decision

on May 10 to excuse Prospective Juror D. H. was reinforced by the subsequent

discovery that the prospective juror had written to the court. The prosecutor

exercised his challenge against Prospective Juror D. H. soon after the revelation of

the letter’s existence. Regarding defendant’s current challenge to the accuracy of

the prosecutor’s conclusions that the letter indicated D. H. might experience

difficulty getting along with others, we note that the latter specifically stated

cigarette smoke would render the prospective juror “impatient and unable to

function.”

33

The prosecutor’s other stated reasons for excusing Prospective Jurors D. H.

and M. B. — namely, the prosecutor’s perception that the prospective jurors’

views concerning imposition of the death penalty in certain circumstances were

unfavorable to the prosecution and that Prospective Juror M. B. experienced

difficulty understanding certain critical aspects of the law — are supported by the

record of the prospective jurors’ statements during the voir dire. None of the

proffered justifications appear to have been pretextual. Although, on appeal,

defendant emphasizes other statements by these prospective jurors that might have

provided a prosecutor with a rationale for their retention as jurors, the question

before the trial court was whether the prosecutor’s stated reasons were supported

by the record and whether the court was persuaded they were not pretextual. In

denying the Wheeler motion, the trial court did not rely upon its memory of the

voir dire occurring months earlier, but noted, rather, that it had “review[ed] the

transcripts with regard to both of these jurors,” presumably to make certain that

the prosecutor’s stated reasons were supported by the record.

Defendant further contends that the pretextual nature of the prosecutor’s

excusal of these prospective jurors is demonstrated by a comparison of the voir

dire answers of Prospective Jurors D. H. and M. B. with those of several

nonchallenged and seated jurors. Defendant did not engage in a comparative juror

analysis in the trial court. We disapproved of performing for the first time on

appeal such a comparative analysis in People v. Johnson (1989) 47 Cal.3d 1194,

1221. Even assuming without deciding that this aspect of Johnson has been called

into question by the decision in Miller-El v. Dretke, supra, __ U.S. __ [125 S.Ct.

2317], we conclude that the comparative juror analysis relied upon by defendant

fails to demonstrate purposeful discrimination.

In Miller-El v. Dretke, supra, ___ U.S. ___ [125 S.Ct. 2317], in the context

of a challenge based upon racial bias, the high court observed that if a prosecutor’s

34

explanation for a challenged strike “applies just as well to an otherwise-similar

nonblack [juror] who is permitted to serve, that is evidence tending to prove

purposeful discrimination . . . .” (Id. at p. ___ [125 S.Ct. at p. 2325].) As noted

above, the prosecutor remarked that the “overriding statement” made by

Prospective Juror D. H. that led to the peremptory challenge was D. H.’s

observation that the juror might consider it a mitigating circumstance if a suspect

who committed a crime was cornered by a police officer and shot the police

officer. In addition, Prospective Juror D. H. had corresponded with the court

regarding his aversion to cigarette smoke and desire to avoid locations in which

persons might smoke, giving rise to questions whether the prospective juror could

“get along with others.” Finally, the prospective juror revealed the possibility his

feelings would prevent him from executing someone.

Defendant does not refer us to, and we have not discovered, any comment by

a seated juror that was similar to D. H.’s comment that, following a crime, a

perpetrator’s stressful confrontation preceding the shooting of a police officer

would constitute mitigating evidence. Defendant does not point to any another

occasion in which a seated juror communicated with the court to identify behavior

of others rendering jury experience so unpleasant as to justify a request to be

excused from service. Although defendant correctly observes that jurors R. F. and

G. R. gave responses bearing some similarity to those of Prospective Juror D. H.

concerning their feelings about the death penalty,8 these two jurors were not

8

The record reflects that Prospective Juror D. H. responded, “That’s

possible,” when asked “if he had any feelings about the death penalty that would
prevent [him] from voting to execute another human being . . . .” Upon further
questioning, he clarified that he “would consider the circumstances of the
particular case.” Similarly, Juror R. F. stated that he had “some reservations about
taking people’s lives obviously” and that he might or might not consider the death

(footnote continued on next page)

35

“otherwise [] similar” to Prospective Juror D. H. in any other respect contributing

to the prosecutor’s challenge. The circumstance that the two jurors made a single

comment having similarity does not establish that the prosecutor’s reasons were

pretextual or that defendant established purposeful discrimination under the facts

of the present case.

We further conclude that a comparison of Prospective Juror M. B. to seated

jurors E. E., P. L., R. F., M. T., C. V., G. R., and D. St. and alternate juror J. C.

does not demonstrate that these jurors were substantially similar, nor that the

prosecution’s stated justifications for his peremptory challenge were therefore

pretextual.

For example, the prosecutor justified his challenge of Prospective Juror M. B.

in part based upon the juror’s statement that his experience with an attempted

home robbery (which occurred while the prospective juror was at home) had not

had a profound impact on him. Defendant does not refer us to, nor have we found,

any similar comment made by any seated juror. Indeed, because the special

circumstance alleged in this case was murder in the course of a robbery committed

in a motor home, it is understandable that a prosecutor would challenge a juror

who was not deeply affected by an attempted robbery in his own home. (See

Miller-El v. Dretke, supra, ___ U.S. at p. ___ [125 S.Ct. at p. 2329] [noting the

court’s prior decisions holding that the credibility of the prosecutor’s justifications

“can be measured by ‘how reasonable, or how improbable, the explanations are;

(footnote continued from previous page)

penalty in a case involving robbery and intentional murder. Juror G. R.
responded, “I believe I could, your honor,” when asked whether he could make a
choice between the two possible penalties. Upon questioning by the prosecutor,
he subsequently clarified that “I believe it means yes, I can.”

36

and by whether the proffered rationale has some basis in accepted trial

strategy’ ”].)

In addition, the prosecutor stated he had excused Prospective Juror M. B.

because the juror had remarked that a “past history of violence may weigh more

heavily with respect to aggravating factors and mitigating circumstances.” The

prosecutor noted that defendant “doesn’t have a terribly heavy history of

violence.” By contrast, none of the seated jurors referred to by defendant stated

that a history of violence might weigh more heavily than other aggravating

circumstances. Juror C. V. simply responded, “Yeah,” when defense counsel,

during a colloquy about the various factors that might be important in determining

the appropriate penalty, inquired whether “it [would] make any difference to you

if the defendant had never done a serious crime of violence before? Would that be

important to you in deciding [the appropriate penalty]?” Similarly, Alternate

Juror J. C. was asked by defense counsel, “We can also present to you whether this

is the first and only incident of violence in his life. [Is] [t]he past history . . . with

regards to other crimes or other history of violence something that you would

seriously consider?” She responded, “Yes.” She had previously been asked about

the importance of premeditation, defendant’s childhood and family history, and

defendant’s job accomplishments, and following a subsequent inquiry as to

whether a history of drug problems would be important stated, “I feel they’re all

important, yes.” Juror G. R. was asked by defense counsel “[W]ould it be

important to you that there [were] no other instances of violence in the person’s

background before the factors alleged here?” Juror G. R. responded, “Yes.”

Defense counsel asked, “So background facts about the defendant would be

important in determining the penalty in addition to the facts about the crime?”

Juror G. R. stated, “What would be presented, yes.” Finally, Juror D. St.

responded “Sure,” when asked by defense counsel whether she “might be

37

interested if it got to the penalty phase in knowing more about the life of the

defendant?” Defense counsel then inquired, “Apart from the crime . . .?”

Juror D. St. said, “Yes. . . . Habitual criminal, people who have done the same

crime over and over again.” Defense counsel asked a question the juror did not

understand, and then inquired, “You might find it important to know whether there

was an absence of violence in the person’s past?” “Sure. Right.” “Or whether

they had a record of violence?” “Right.”

Moreover, Prospective Juror M. B. expressed confusion as to the role played

by a special circumstance in the penalty process and as to the weighing of

aggravating and mitigating circumstances. By contrast, Juror E. E., whom

defendant compares to Prospective Juror M. B., stated he would not want to know

about defendant’s past, but “[o]nly what is said here.” Once it was explained that

he would hear evidence and, implicitly, could consider defendant’s past,

Juror E. E. said he would “want to know a little about his past.” Contrary to

defendant’s assertion, Juror P. L. was not “initially confused about the weighing

process.” Rather, when the prosecutor asked, “Do you feel as though you as a

human being could ever vote to execute another human being,” Juror P. L. said,

“Could I do it personally?” The court explained that the prosecutor meant “[a]s a

member of the jury,” and Juror P. L. replied, “Oh, I thought you meant just as an

individual could I do this.” The prosecutor said, “No, as a juror, not as the

executioner but as a juror.” Juror P. L. said “Yes.” Nor did Juror R. F. appear to

have difficulty understanding the weighing process, but rather appeared to indicate

he personally would need “overwhelming evidence” to reach a death verdict.

Juror M. T. initially may have had difficulty understanding the weighing process,

but she clearly understood the prosecutor’s explanation, as is demonstrated by the

portion of the voir dire upon which defendant relies. In any event, defendant does

not assert that Juror M. T. was similar to Prospective Juror M. B. on any of the

38

other three bases upon which the prosecutor relied. We do not believe the single

similarity demonstrates the prosecutor gave pretextual justifications for his

challenge. Defendant is correct that somewhat similarly to Prospective

Juror M. B., both Juror R. F. and Alternate Juror J. C. stated that they believed the

death penalty was appropriate for “heinous” crimes. They were not, however,

similar to Prospective Juror M. B. on any other basis. Again, this one similarity

does not demonstrate that pretextual reasons were given.

In sum, the record supports the prosecutor’s stated reasons, and a comparison

of the two challenged prospective jurors with the seated jurors does not

demonstrate such a degree of similarity as to establish the existence of pretext.

We further note that a prospective juror’s religious affiliation, if it is not

stated on a jury questionnaire or revealed during voir dire, is not ascertained as

readily as is his or her race or gender. (See Davis v. Minnesota (1994) 511 U.S.

1115 (conc. opn. by Ginsburg. J.) [denial of petn. for cert., noting the Minnesota

high court’s observation that religious affiliation “ ‘is not as self-evident as race or

gender’ ” and that ordinarily “ ‘inquiry into a juror’s religious affiliation and

beliefs is irrelevant and prejudicial’ ”].) In the present case, the record does not

reflect that the prosecutor consistently examined prospective jurors to ascertain

whether they were Jewish. (See Batson, supra, 476 U.S. at p. 97 [“the

prosecutor’s questions and statements during voir dire examination” may “refute

an inference of discriminatory purpose”].) Rather, Prospective Jurors D. H. and

M. B. both discussed their affiliation with Judaism in response to defense

questioning. Indeed, on his jury questionnaire, Prospective Juror M. B. stated that

he was not a member of any “religious” organization, although he did note

elsewhere that he had lived in Israel for nearly a year. Likewise, Prospective Juror

D. H., who completed a different version of the jury questionnaire, stated he

39

belonged to no “societies, unions, professional associations, civic clubs, or other

organizations” that could be characterized as religious.

Because religious affiliation may not emerge in the absence of specific

questioning, there may have been additional persons of the Jewish faith who

served on defendant’s jury — notwithstanding the many juror questionnaires from

which it appeared prospective jurors lacked religious affiliation. For example,

Jurors G. R., P. L., and D. St. and Alternate Jurors R. B. and J. C. either responded

in the negative when asked on the jury questionnaire whether they belonged to any

“religious” or other organizations, or listed organizations that could not reasonably

be characterized as religious. Using a different form of the questionnaire, Jurors

M. T., C. V., T. F., E. E., R. F., D. Sp., and K. M. and Alternate Jurors M. S. and

D. L. also stated that they belonged to no “societies, unions, professional

associations, civic clubs, or other organizations” that reasonably could be

characterized as religious.9 Yet on voir dire, Juror E. E. nevertheless identified

himself as a “born Catholic” and “now a born again Christian”; Juror P. L.

identified herself as a Baptist who attended church; Juror D. St. had a Lutheran

background; and Juror M. T. stated she was Catholic and went to church every

Sunday. Further, the religious affiliation of seven jurors (Jurors G. R., C. V.,

D. N., D. Sp., T. F., R. F., and K. M.), or greater than one-half the number of

jurors, and all four alternate jurors (Alternates J. C., D. L., M. S., and R. B.), never

was elicited or otherwise identified.10

9

Juror D. N.’s jury questionnaire is not in the record.

10

Alternate Juror J. C. responded “No” when asked by defense counsel

whether her “feelings about the death penalty [are] any result of your religious
feelings.” Juror C. V. was asked by defense counsel, “So there is nothing in your
philosophy or religious background or your feelings about your own personal

(footnote continued on next page)

40

Thus, it is virtually impossible on this record to state the number of Jewish

persons who served on the jury, or who were in the jury pool. (Cf. Miller-El v.

Dretke, supra, __ U.S. at p. __ [125 S.Ct. at p. 2325] [noting the prosecution

challenged 10 out of 11 African-American prospective jurors not removed for

cause].) As observed above, even when jurors did not list religious organizations

on their questionnaires, on several occasions voir dire revealed that they were in

fact religious. Thus, although the prosecutor exercised peremptory challenges

against two prospective jurors who, during voir dire, identified affiliations with

Judaism in response to questioning by defense counsel, the circumstance that

neither the prosecutor nor defense counsel ever inquired into the religious

affiliation of the majority of the seated jurors and alternates, and that the

prosecutor had no other reasonable means of ascertaining their religious

affiliation, undercuts any suggestion of purposeful discrimination against

Prospective Jurors D. H. and M. B. because of their Jewish faith.

Finally, as we do in any case of alleged bias, we defer to the trial court’s

determination as to credibility. (Hernandez, supra, 500 U.S. at p. 365 [best

evidence of whether race-neutral explanation should be believed is often “the

demeanor of the attorney who exercises the challenge,” and “evaluation of the

prosecutor’s state of mind based on demeanor and credibility lies ‘peculiarly

within a trial judge’s province’ ”]; Batson, supra, 476 U.S. at p. 98, fn. 21 [“Since

the trial judge’s findings in the context under consideration here largely will turn

(footnote continued from previous page)

participating [sic] that would prevent you from applying either penalty, is that
correct?” Juror C. V. replied, “That’s correct.” Juror K. M. was asked by defense
counsel, “And how does religion play any part in your life? Is religion
important?” Juror K. M. replied, “No.”

41

on evaluation of credibility, a reviewing court ordinarily should give those

findings great deference”].)

We therefore conclude, with respect to both Prospective Jurors M. B. and

D. H., that defendant has not demonstrated that the prosecutor engaged in

purposeful discrimination against prospective Jewish jurors, and that the defense

motion below was properly denied by the trial court.

b. Asserted incorrect standard

Defendant contends that the trial court applied an incorrect standard to decide

the Wheeler motion. He asserts that the trial court determined that group bias

played a part in the prosecutor’s peremptory challenges, but nonetheless denied

defendant’s Wheeler motion because group bias was not the “sole” reason

motivating the prosecutor. In advancing this argument, defendant relies upon the

circumstance that the trial court, in rejecting defendant’s Wheeler motion, stated:

“Now after an analysis of the proffered reasons with regard to the exercise of these

two peremptory challenges, the court will find at this time that the peremptory

challenges in question were not predicated on group bias alone and accordingly

the motion will be denied.”

In Wheeler, this court stated that “the use of peremptory challenges to

remove prospective jurors on the sole ground of group bias violates the right to

trial by a jury drawn from a representative cross-section of the community under

article I, section 16, of the California Constitution.” (Wheeler, supra, 22 Cal.3d at

pp. 276-277, italics added; id. at p. 281 [“If the court finds that a prima facie case

has been made, the burden shifts to the other party to show if he can that the

peremptory challenges in question were not predicated on group bias alone” (fn.

omitted)]; id. at p. 287 [“all claims in California courts that peremptory challenges

are being used to strike jurors solely on the ground of group bias are to be

governed by article I, section 16, of the California Constitution and the procedure

42

outlined above”]; see Batson, supra, 476 U.S. at p. 89 [“the Equal Protection

Clause forbids the prosecutor to challenge potential jurors solely on account of

their race or on the assumption that black jurors as a group will be unable

impartially to consider the State’s case against a black defendant” (italics added)];

see also People v. Willis (2002) 27 Cal.4th 811, 816; People v. Ayala (2000) 24

Cal.4th 243, 260; People v. Turner (1994) 8 Cal.4th 137, 164 (Turner).) In light

of the language in Wheeler, it is not surprising that the trial court repeated this

wording in ruling on defendant’s Wheeler motion. (See People v. Reynoso (2003)

31 Cal.4th 903, 927, fn. 8 [because this court has employed the phrase

“ ‘systematic exclusion,’ ” “it hardly seems fair or appropriate to fault this trial

judge for using the term . . . much less to conclude that a wrong standard was

applied in ruling on the motion”].)

Relying upon a number of decisions of the United States Supreme Court that

have arisen in other contexts, defendant contends that when a trial court finds that

a prosecutor’s exercise of a peremptory challenge is based in part on an

impermissible class bias, the court may not properly deny a Wheeler or Batson

objection on the ground that the improper motivation was not the “sole” or “only”

motivation for the challenge. (Cf. Arlington Heights v. Metropolitan Housing

Development (1977) 429 U.S. 252, 265 [in seeking to establish that zoning

decision was motivated by racial bias in violation of the Equal Protection Clause,

challenger need not establish “that the challenged action rested solely on racially

discriminatory purposes. Rarely can it be said that a legislature or administrative

body . . . made a decision motivated by a single concern, or even that a particular

purpose was the ‘dominant’ or ‘primary’ one”]; PriceWaterhouse v. Hopkins

(1989) 490 U.S. 228, 241, 258 [in action under title VII of the federal Civil Rights

Act of 1964, plaintiff need not prove that unlawful discrimination was the sole

factor motivating an employment decision in order to establish a violation of the

43

act]; see also Desert Palace, Inc. v. Costa (2003) 539 U.S. 90, 101-102

[considering use of circumstantial evidence as proof in mixed-motive case under

1991 amendments to Title VII].) Defendant acknowledges that neither in Wheeler

nor in any subsequent decision has our court actually addressed or decided the

question whether a mixed-motive peremptory challenge could constitute a

violation of the defendant’s constitutional rights, but he maintains that the question

must be decided in the present case.

We do not agree that we need to or properly should address the mixed-

motive question in this case. For the reasons explained above, we have rejected

defendant’s claim that the prosecutor’s stated reasons for the peremptory

challenges were pretextual, and defendant points to no evidence in the record other

than the mere circumstance that two Jewish prospective jurors were excused

through peremptory challenges upon which the trial court could have found such

group bias. Under these circumstances, we conclude it is not reasonable to

interpret the trial court’s use of the language from Wheeler in denying defendant’s

motion as a determination by the trial court that the prosecutor was motivated in

part by group bias. Rather, in light of the record in this case, we believe the trial

court’s statement simply reflected its finding that defendant had not established

that the peremptory challenges in question were motivated by group bias.

B. Guilt phase

1. Asserted erroneous limitation on scope of cross-examination

Defendant contends the trial court committed reversible error, and violated

his state and federal constitutional rights to confrontation, a fair trial, due process

of law, and a reliable verdict, when it refused to allow him to cross-examine Jamie

Gronley concerning promises made to her in exchange for her testimony.

During cross-examination, defense counsel asked Gronley whether a month

earlier she had been convicted of the felony of possession of heroin. She replied

44

“yes,” and also responded affirmatively when asked whether she was awaiting

sentencing on that conviction. Defense counsel then asked, “At the time you pled

guilty to that offense . . . did the district attorney recommend you be released from

custody?” “No, he did not.” “Within 10 minutes of you entering that plea were

you released from custody?” “I was released. That was my release date from

Hayward was August 30th. That’s the day I got out of jail. My sentencing date

for this case that I picked up is on November 3rd.” “Did your attorney represent

to you that if you entered a guilty plea in this case the district attorney would

recommend you be released from custody?” “There were no promises made.”

“Were you released [from] custody the very date you entered your plea?” “I was

released on O.R. [own recognizance] and also upon my release date and I was put

on O.R. for the new date.” “And are you awaiting sentence at this time?” “Yes, I

am.” Defense counsel then asked, “Has your attorney indicated if your testimony

is favorable in this case the district attorney ―” The prosecutor objected, and

Gronley stated, “Whether I had a case or not I would testify.” The prosecutor

stated that defense counsel was “asking [Gronley] to violate the lawyer-client

privilege.” The trial court sustained the objection “as to anything her attorney may

have told her” and told defense counsel to proceed. Defense counsel then changed

the subject, asking Gronley whether she had suffered a prior felony conviction in

Oregon.

Contrary to defendant’s assertion, it is apparent defendant was not

“completely precluded” from exploring the topic of what promises, if any, were

made to Ms. Gronley in exchange for her testimony. Rather, defense counsel

cross-examined Gronley at some length concerning the chain of events leading to

her impending sentencing in the felony case, apparently in an effort to delineate

circumstances that implicitly might demonstrate that the prosecutor had accorded

her leniency. As the high court has observed, “the Confrontation Clause only

45

guarantees ‘an opportunity for effective cross-examination, not cross-examination

that is effective in whatever way, and to whatever extent, the defense might

wish.’ ” (Pennsylvania v. Ritchie (1987) 480 U.S. 39, 53.)

Defendant could have asked Gronley, but did not, whether any promises of

leniency were made to her in exchange for her testimony in the present case,

without inquiring as to her conversations with her attorney. Instead, defendant

simply abandoned the subject. Under these circumstances, we are reluctant to find

error of constitutional proportion based upon the trial court’s ruling sustaining an

objection to a single question regarding a witness’s conversation with her

attorney.11

In addition, on May 12, 1987, in the context of a broad discovery order

entered prior to trial, the trial court ordered that the prosecutor disclose to defense

counsel, with respect to all witnesses, the following: “any and all promises,

inducements, offers of reward or immunity, or affirmative representations made or

implied to such persons in an effort to obtain information or testimony as to the

11

Defendant also claims the trial court “exacerbated the impact” of its

asserted error (in preventing defense counsel from fully impeaching Gronley) by
permitting Gronley to testify that the police did not find credible her confession to
the murder of Germaine. As discussed above, however, the trial court did not err
in sustaining the prosecutor’s objection, and defendant thereafter failed to pursue
the matter. Nor did Gronley’s testimony regarding her confession constitute, as
defendant contends, “lay opinion regarding the veracity of a witness.” Rather,
evidence that Gronley initially confessed to a murder she later ascribed to
defendant was relevant to her credibility. Thus, the probative value of that
confession also was relevant. Presumably, the reason the police did not find her
confession credible was that she was unable to describe the victim and told the
police that two bullets previously had penetrated the windshield of the motor
home, a fact not corroborated by any witness who inspected the motor home on
May 30.

46

investigation and/or prosecution of the alleged offenses as charged in the

information, and as to such persons, any and all threats made or implied for a like

purpose.” This order was to “be deemed a continuing and ongoing order through

the completion of trial, so that any items granted by this order, which are actually

or constructively obtained by or become known to the District Attorney of

Alameda County or any of his deputies, investigators, employees, or agents after

initial compliance with this order has been made, shall also be made available

forthwith to defense counsel.”

On September 11, 1989, the eve of opening statements to the jury, the

prosecutor noted that “There’s been a continuing discovery order. . . . [T]he court

ordered me to continue to disclose any promise or representation I made to any

prospective witnesses.” The prosecutor then stated that he had spoken with Jamie

Gronley’s attorney, Jack Noonan. Mr. Noonan stated that Gronley was in jail for

probation violations and would be released on August 31; she had a court date on

August 30 regarding a felony. The prosecutor informed the court that he had told

Mr. Noonan: “Well, I don’t object if she pleads guilty to the felony to have an out

of custody [report and sentence] and I said other than that there are no promises as

to her. So that was the representation made and it is my understanding that she did

plead guilty to the felony ― or nolo, and that she is out of custody . . . [f]or

purposes of report and sentence.” The court asked defense counsel, “Mr. Meyer,

anything further on that issue, sir?” Mr. Meyer responded, “That is the District

Attorney’s representation pursuant to the previous order and I have no further

comments at this time.”

There is no evidence in the record indicating that, subsequent to the colloquy

described by the prosecutor, and despite the circumstance that the prosecutor was

subject to the May 1987 discovery order until the “completion of trial,” he made

undisclosed promises to Gronley in exchange for her testimony. The prosecutor’s

47

pretrial disclosure suggests that defense counsel did not have any reason to pursue

the topic with Gronley during cross-examination after the trial court sustained the

prosecutor’s objection.

Defendant further contends that the trial court erred by failing to hold a

hearing to determine the admissibility of communications between Gronley and

her attorney concerning the treatment she might expect in exchange for her

favorable testimony. Defendant never sought a hearing on this issue, however, nor

indeed did he even suggest the trial court erred in sustaining the objection.

Defendant thus waived the claim on appeal. Even assuming the claim was not

waived, it is clear that any error would have been harmless under any standard of

review.

2. Asserted improper admission of hearsay evidence

Defendant contends that reversal is required because the trial court admitted

unreliable hearsay evidence concerning the issue of identity, in violation of

defendant’s state and federal constitutional rights to confrontation of adverse

witnesses, due process of law, and reliable guilt and penalty determinations.

During her direct testimony, Rebecca Germaine was asked whether her

husband Lorin Germaine told her “anything that the buyer said to him?” Over

defense objection, Rebecca responded that during the test drive, the prospective

buyer had commented to Lorin that he “looked really familiar and he asked him if

he had a younger brother, that [the prospective buyer] thought that he knew

[Lorin’s] younger brother.” Rebecca further testified that in fact, Lorin did have a

younger brother, John, who looked “[e]xactly like him.” Subsequently, Trede

testified that Rebecca Germaine told him that Lorin had said the prospective buyer

“thought he knew Lorin’s brother.” Trede further testified that in April 1986,

defendant and Trede were in the same holding cell in municipal court. John

48

Germaine was in the courtroom visiting Trede, and defendant made a comment

about him to Trede.

On appeal, defendant challenges the admission of the testimony of Rebecca

Germaine with regard to Lorin’s recollection to her of the prospective buyer’s

comments, as well as Trede’s testimony that Rebecca Germaine repeated to him

the statement her husband Lorin assertedly made to her concerning the prospective

buyer’s conversation with Lorin. Defendant asserts that Rebecca’s testimony

describing Lorin’s statements to her was double hearsay, and that Trede’s

testimony was triple hearsay, admitted in violation of the confrontation clause and

serving “only to exacerbate the harm caused by introduction of the original

hearsay.”

A statement by defendant to Lorin constituted a statement by a party, and

was relevant to the prospective buyer’s identity. (See Evid. Code, § 1220; People

v. Robinson (2000) 85 Cal.App.4th 434, 444-445.) Nonetheless, that purported

statement of the prospective buyer was recounted by the victim to Rebecca and

subsequently to Trede. Assuming that the testimony of Rebecca and Trede

presented multiple hearsay that should not have been admitted, there is no

conceivable prejudice under any standard of review, because of the overwhelming

evidence against defendant, including his admission to Gronley that he was the

killer.

3. Asserted illegal search and seizure

Defendant contends that the police violated his United States Constitution,

Fourth and Eighth Amendment rights by performing a warrantless search of

belongings that he had stored in a private home, and by introducing in evidence a

letter recovered in the search subsequently used to establish his identity as the

killer.

49

The trial court held a hearing on defendant’s motion to suppress evidence

recovered in the search, in particular, as relevant here, defendant’s letter to

Gronley of May 9, 1986, indicating that defendant wanted to obtain “some wheels

for us right away, prob[ably] a van.” Hayward Police Detectives Muir and Muniz

testified at the hearing on June 1, 1986, that following defendant’s arrest and

interview with the police, the officers went to the residence of Melba Valdez and

Wanda Wilson, arriving at approximately 7:30 p.m. Valdez identified herself as

the tenant of the premises. After the officers identified themselves and explained

the purpose of their visit, Valdez invited them to examine several paper bags

containing defendant’s clothing that were located in her garage. There, Detective

Muir found defendant’s May 9 letter to Gronley. Detective Muir believed that

Valdez had authority to consent to an examination of the contents of the bags

containing defendant’s belongings.

Valdez testified she had given the officers permission to enter and to search

three bags containing defendant’s clothing that were stored in her garage. During

much of May, defendant sanded and painted her kitchen. Defendant did not live

there, but on a “couple” of occasions when he fell asleep while watching

television, she covered him with a blanket and let him sleep there rather than

awaken him. Defendant did not have a key, had to be let in each day, and he did

not receive mail at her residence. After he finished sanding and painting for the

day, defendant would shower and Valdez would wash his clothes and place them

back inside the paper bags. Defendant never told Valdez not to open the bags.

Valdez did not learn defendant’s last name until the officers informed her.

Defendant did not testify at the hearing. The trial court denied the motion to

suppress evidence, finding, among other things, that Valdez had authority to

consent to the search by the police.

50

The trial court ruled correctly. Although defendant asserted ownership of the

contents of the bags, such an assertion is merely one factor in the determination

whether he had a legitimate expectation of privacy therein. (Rawlings v. Kentucky

(1980) 448 U.S. 98, 105.) Significantly, defendant left these belongings in bags at

a residence occupied by two other persons, knowing that one of them (Valdez)

routinely placed his laundered clothing inside the bags, and he never instructed her

not to do so. Accordingly, Valdez had access to defendant’s personal effects

sufficient to endow her with authority to consent to the search. “[C]onsent of one

who possesses common authority over . . . effects is valid as against the absent,

nonconsenting person with whom that authority is shared.” (United States v.

Matlock (1974) 415 U.S. 164, 170; People v. Jenkins (2000) 22 Cal.4th 900, 976-

977.) By permitting Valdez common access to the bags, and storing them at her

home, defendant “assumed the risk” that Valdez “would allow someone else to

look inside.” (United States v. Matlock, supra, 415 U.S.at p. 171.) Regardless

whether defendant is characterized as a mere invitee or as an overnight guest, he

had no reasonable expectation of privacy in the bags with respect to Valdez, an

occupant of the residence who consented to the search.

4. Asserted mishandling of physical evidence

Defendant contends the state’s failure to honor discovery orders requiring the

disclosure of physical evidence to the defense and to preserve and store the

evidence properly, as well as the state’s destruction of certain physical evidence,

violated his right to a fair trial under federal principles of due process of law.

a. Factual background

At the time of his arrest on June 1, 1986, defendant was wearing a

bloodstained black jacket. In November 1988, in the trial court, defendant filed a

“Motion for Sanctions for Failure to Properly Preserve Material Evidence” and in

March 1989, filed supplemental points and authorities in support of that motion.

51

Defendant asserted that the jacket should have been maintained in a frozen state to

make it possible to perform more refined tests on the bloodstains at a later time.

Defendant sought to exclude “all testimony regarding blood tests on the jacket.”

At the May 1989 hearing on the motion, Sharon Binkley, a criminalist in the

Alameda County Sheriff’s laboratory, testified that she had received the jacket

from the Hayward Police Department on June 5, 1986. She stored the jacket in a

freezer “to slow down the deterioration of the genetic markers that can be found in

the biological evidence.” Subsequently, Binkley received known blood samples

from the murder victim and from defendant.

At some point, Binkley examined the jacket and found human blood on the

right sleeve. She cut out a portion of the bloodstained area and tested it for genetic

markers. As a result of these tests, Binkley concluded that the blood on the jacket

was consistent with victim Lorin Germaine’s blood, but inconsistent with that of

defendant’s. Performing the genetic marker typing consumed a portion of the

bloodstain, and therefore Binkley did not retain the cut-out portion she had tested.

Another criminalist returned the jacket to the Hayward Police Department on

September 29, 1986. It was not Binkley’s practice, upon release of items of

property, to advise the police how to maintain biological specimens, and she was

unfamiliar with the provisions used by police departments for the storage of

biological material.

Dr. Edward Blake, a forensic serologist and defense expert, testified that, on

August 11, 1987, he received the jacket from Inspector McGrath. On September

11, 1987, Dr. Blake received blood specimens originating from the victim and

from defendant. The prosecutor informed him that the jacket had not been

maintained in a frozen state and that the material removed by Binkley was

unavailable. Dr. Blake stated that, because of the jacket’s black color and the

52

nature of the fabric, it was “very difficult to perceive whether or not there [were]

any biological fluids dried onto the fabric.”

Dr. Blake cut out a portion of the jacket adjacent to the area previously

removed, and determined that it contained type A human blood. He was unable to

perform more refined genetic marker tests, most likely because the sample had not

been properly preserved or frozen. His tests would have sought to determine

whether the excised bloodstain remained consistent with the victim’s blood. Dr.

Blake was furnished with a copy of Binkley’s laboratory report and her notes. He

found no inadequacy in her laboratory technique, nor any inconsistency between

her report and her notes.

The trial court denied defendant’s motion, finding “there was no suggestion

or showing of governmental bad faith either by the Hayward Police Department or

the Alameda County Sheriff’s Laboratory, and the failure to refrigerate the

evidence here . . . could at worst be described as negligent.” The trial court further

found that “while the failure to preserve the bloodstain and jacket evidence may

preclude the defendant from obtaining comparable evidence by other reasonably

apparent means, that evidence did not possess an apparent exculpatory value

before the suggested failure to properly preserve but rather possessed upon

completion of tests performed by criminalist Sharon Binkley an apparent

inculpatory value.”

b. Analysis

The state has a duty to preserve evidence that both possesses “an exculpatory

value that was apparent before the evidence was destroyed,” and is of “such a

nature that the defendant would be unable to obtain comparable evidence by other

reasonably available means.” (California v. Trombetta (1984) 467 U.S. 479, 489

(Trombetta).) Moreover, a constitutional violation is not established unless the

53

authorities acted in bad faith in failing to preserve potentially useful evidence.

(Arizona v. Youngblood (1988) 488 U.S. 51, 58 (Youngblood).)12

In the present case, the trial court properly found that because the bloodstain

evidence was inculpatory rather than exculpatory at the time the jacket was

returned to the Hayward Police Department, the Trombetta test was not satisfied.

Therefore, any failure of the police properly to preserve the jacket in a frozen state

did not constitute a violation of defendant’s right to due process of law.

Defendant asserts that, because the state had been aware of the inculpatory

value of the evidence, “[b]y a parity of reasoning, the state had to be equally aware

of the potential exculpatory value of the jacket. The absence of the victim’s blood

on the jacket would make it unlikely that Mr. Schmeck was the shooter.” That

reasoning, however, does not constitute the applicable test. The circumstance that

additional, more refined testing possibly could have excluded the victim as the

source of the bloodstain on the jacket worn by defendant does not suggest the

evidence properly can be characterized as exculpatory.

Defendant contends that bad faith was evident in the asserted violation of a

discovery order by the police. On June 19, 1986, defendant filed in municipal

court a discovery motion that requested all physical evidence, and at the hearing

he indicated that the parties had stipulated to a July 16, 1986 date for compliance.

On July 16, the prosecutor explained, presumably referring in part to the

bloodstains on the jacket, that the laboratory analysts had not yet completed their

tests because a blood sample from defendant was required. The court continued to

12 Although

Youngblood was decided after the events here in question, the

decision applies to the present case. (See People v. Hardy (1992) 2 Cal.4th 86,
165 [Trombetta, decided in 1984, “applies even to cases — like the present one —
where the crime occurred prior to the enactment of” Proposition 8].)

54

August 12 the date set for compliance with the discovery order. On July 24, the

court ordered that a blood sample be taken from defendant. On August 12, the

court observed that the parties still were waiting to receive certain laboratory

reports, and continued to August 29 the date set for compliance with the discovery

order. Subsequently, the court continued to September 12, 1986 the date set for

compliance.

The reporter’s transcripts of the hearings held on September 12,

September 26, and October 24, 1986, have been destroyed. Nonetheless, at a

hearing held on December 11, 1986, the prosecutor observed that at some point

during that period, the laboratory report “regarding the blood” had been provided

to defendant, and that the only item defendant still required was the “scientific lab

work that provided the foundation for the report.” The prosecutor indicated that

those notes would be provided, probably the following day, and inquired, “Is there

anything else in the way of discovery that the defense is requesting at this point?”

Defense counsel answered, “Not that we know of. However, we would reserve the

right to bring it to the Court’s attention if something may come up from the very

materials that the District Attorney has indicated he will furnish us tomorrow. We

don’t anticipate anything else.” On December 18, 1986, defense counsel noted

that at the last hearing the defense was notified that it would be provided with the

lab notes of the blood analysis, and stated, “We now have received the entire

contents of blood analysis that was done by the Alameda County Lab.”

On May 11, 1987, shortly after defendant’s arraignment in superior court, he

filed a discovery motion that included a request for “all physical evidence.”

Defendant did not request the jacket, or note that he had not received the jacket, in

the discovery request or in defense counsel’s supporting declaration.

As noted above, on August 11, 1987, defendant received the jacket for

testing. Defendant, who wore the jacket at the time of his arrest in June 1986,

55

knew it was in the possession of the police, yet at no time during those hearings

did the defense indicate it had not received the jacket; rather, the defense indicated

it had received the related laboratory reports and notes. In sum, we conclude the

record fails to establish any violation of the discovery order, let alone any bad

faith on the part of the prosecution or law enforcement.

5. Asserted instructional error and prosecutorial misconduct

Defendant contends that so-called structural error occurred because the jury

improperly was instructed that the state did not have to prove beyond a reasonable

doubt that defendant was the killer, and because the prosecutor’s opening and

closing arguments included comments that reinforced the erroneous instruction.

The trial court instructed the jury regarding the difference between a

confession and an admission, and that the jury was the exclusive judge whether

defendant had made a confession or an admission and, if so, whether the

confession or admission was true in whole or in part. The trial court also

instructed the jury that evidence of an oral confession or admission by defendant

should be viewed with caution unless it had been tape-recorded. The court further

instructed: “Evidence has been received from which you may find that an oral

statement of intent, plan or design was made by the defendant before the offense

with which he is charged was committed. It is for you to decide whether such a

statement was made by the defendant. Evidence of an oral statement ought to be

viewed with caution.” The court then read the challenged instruction: “No person

may be convicted of a criminal offense unless there is some proof of each element

of the crime independent of any confession or admission made by him outside of

this trial. The identity of the person who is alleged to have committed a crime is

not an element of the crime nor is the degree of the crime. Such identity or degree

of the crime may be established by a confession or admission.”

56

Defendant concedes that the “mere provision of these [corpus delicti]

instructions itself is not enough to establish a ‘reasonable likelihood’ that the jury

failed to apply the correct burden of proof to the issue of identity.” (See People v.

Frye (1998) 18 Cal.4th 894, 959-960.) Defendant insists, however, a reasonable

likelihood existed that the jury did not apply the correct burden of proof, because

in addition the prosecutor made two misleading statements. The prosecutor

assertedly made the first during his opening argument, prior to describing the

elements of robbery: “I represent the people of the state of California, I represent

the society, the group of people that live in this state. And anyone who is accused

of a crime has to be convicted beyond a reasonable doubt and to a moral certainty.

And that’s my responsibility to you, the jury. Each crime has certain elements,

and each element has to be proved beyond a reasonable doubt or the crime fails.

The identity of a person who is accused of a crime is not an element of a crime.”

(Italics added.)

Defendant did not object to the prosecutor’s statement or seek an admonition,

and no exception to the general requirement of an objection is applicable; thus

defendant has forfeited this claim on appeal. (People v. Turner (2004) 34 Cal.4th

406, 430.) Moreover, defense counsel observed in closing argument that the

prosecutor “says that identity of the perpetrator is not an element. He’s correct in

[that] it’s not one of those steps or those elements that satisfy the particular crime.

But what you are talking about is it’s got to be the person that’s on trial . . . . If

that’s not the person that did that crime then the crime is not applicable to that

person. . . . [T]he People have not proved homicide against the defendant beyond

a reasonable doubt.” Indeed, the identity of the killer was the primary issue

disputed at trial and in counsels’ arguments to the jury.

The prosecutor made the second statement at the outset of closing argument,

when he characterized as conjecture and insinuation defense counsel’s argument

57

attempting to persuade the jury that Jamie Gronley and Donald Willis had

committed the murder, and then added, “If you are going to present a case that

someone else committed this crime, you’ve got to put on evidence.” Defense

counsel objected and sought an assignment of misconduct, noting that “there is no

burden on the defense. The burden is on” the prosecutor. The trial court reminded

the jury that the statements of counsel are not evidence and that the court would

instruct them “as to the law at the conclusion of the arguments.”

Despite any ambiguity in the prosecutor’s statements, the trial court’s

instructions made clear that defendant’s identity as the murderer had to be proved

beyond a reasonable doubt.13 (Boyde v. California (1990) 494 U.S. 370, 384

13

Thus, with regard to circumstantial evidence, the jury was instructed that

“each fact which is essential to complete a set of circumstances necessary to
establish the defendant’s guilt must be proved beyond a reasonable doubt. [¶] A
defendant in a criminal action is presumed to be innocent until the contrary is
proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown,
he is entitled to a verdict of not guilty. This presumption places upon the People
the burden of proving him guilty beyond a reasonable doubt. [¶] Defendant is
accused in count one of the information of having committed the crime of murder,
a violation of Penal Code section 187. Every person who unlawfully kills a
human being with malice aforethought or while engaged in the commission or
attempted commission of robbery is guilty of the crime of murder in violation of
section 187 of the Penal Code. [¶] If you are convinced beyond a reasonable
doubt that the crime of murder has been committed by a defendant, but you have a
reasonable doubt whether such murder was of the first or second degree, you must
give the defendant the benefit of that doubt and return a verdict fixing the murder
as of the second degree. [¶] Before you may return a verdict in this case, you
must agree unanimously not only as to whether the defendant is guilty or not
guilty, but also if you should find him guilty of an unlawful killing, you must
agree unanimously as to whether he is guilty of murder in the first degree or
murder of the second degree or voluntary manslaughter. . . . If you are not
satisfied beyond a reasonable doubt that the defendant is guilty of the crime
charged and you unanimously so find, you may nevertheless convict him of any
lesser crime, if you are convinced beyond a reasonable doubt that the defendant is

(footnote continued on next page)

58

[“[A]rguments of counsel generally carry less weight with a jury than do

instructions from the court. The former are usually billed in advance to the jury as

matters of argument, not evidence [citation], and are likely viewed as the

statements of advocates; the latter, we have often recognized, are viewed as

definitive and binding statements of the law”]; Cupp v. Naughten (1973) 414 U.S.

141, 146-147 [“a single instruction to a jury may not be judged in artificial

isolation, but must be viewed in the context of the overall charge”].) In view of

the parties’ emphasis at trial upon the issue of identity, and the substance of the

remaining instructions, we conclude there is no reasonable likelihood the jury

would not have understood it must determine whether it had been proved beyond a

reasonable doubt that defendant killed Lorin Germaine.

Defendant further contends that even if this asserted error “did not require

reversal of the guilt phase verdict, it separately would require reversal of the death

sentence.” He observes that in arguing at the penalty phase against any lingering

doubt, the prosecutor stated: “[A]sk yourself did they present any evidence, did

they present any evidence to show that the defendant was not there? Did they

bring in an alibi? No. Nothing. The evidence as you have . . . determined it, he’s

the killer.” Nothing in the prosecutor’s comment indicates that defendant’s

identity as the killer was not relevant to his murder conviction or to the penalty

that should be imposed.

(footnote continued from previous page)

guilty of such lesser crime. [¶] If you find the defendant guilty of one or more of
the crimes charged or a lesser felony offense, you must determine whether the
defendant personally used a firearm in the commission . . . of such felonies . . . .
The People have the burden of proving the truth of this allegation. If you have a
reasonable doubt that it is true, you must find it to be not true.”

59

We have concluded that no reasonable juror would interpret the corpus

delicti instruction or the prosecutor’s argument during the guilt phase to mean that

it was unnecessary to prove, beyond a reasonable doubt, defendant’s identity as

the killer. In view of our conclusions regarding the claims of instructional error

and prosecutorial misconduct, we also reject defendant’s related contention that

this claimed instructional error and prosecutorial misconduct violated his federal

and state constitutional rights to proof of guilt beyond a reasonable doubt and his

Eighth Amendment right to a reliable determination of guilt and penalty.

6. Asserted additional prosecutorial misconduct

Defendant contends that the prosecutor committed other misconduct

violating defendant’s federal and state rights to due process of law and a reliable

guilt and penalty phase determination. Considering his claims either singly or in

combination, we conclude there was no prejudicial prosecutorial misconduct.

First, defendant contends the prosecutor committed misconduct in telling a

prospective juror during Hovey voir dire that her vote was merely a

recommendation as to penalty. We previously rejected this claim in considering

whether that prospective juror erroneously was excused (see ante, at pp. 25-28),

and reject the claim in the present context for the same reasons.

Defendant contends that during closing argument, the prosecutor relied upon

the “failure of the defense to present certain evidence when the defense was kept

from presenting the evidence by the prosecutor’s own motion.” During that

argument, the prosecutor stated that the defense “conjecture[s] that I have some

secret deal with Jamie Gronley about her sentencing on a felony matter that we

didn’t divulge out here in the open.” Although defense counsel objected that he

had made no such argument or statement, no objection was made on the ground

that the defense had been precluded from learning about any deal the prosecution

had made with Gronley. Thus, the claim is waived. It also is lacking in merit for

60

the reasons stated in our discussion of defendant’s similar claim regarding the

assertedly improper limitation of the defense cross-examination of Gronley. (See

ante, at pp. 44-48.)

Defendant also reiterates the claim that we rejected above, in considering the

instructions on corpus delicti, that the prosecutor committed misconduct when he

“told the jury that the state did not have to prove identity beyond a reasonable

doubt.” (See ante, at p. 56.) As discussed above, the prosecutor did not so inform

the jury but rather stated that “[t]he identity of a person who is accused of a crime

is not an element of a crime.” As we have noted, defendant forfeited this claim by

not objecting. Nor did the prosecutor’s challenged comment during the penalty

phase indicate that defendant’s identity as the killer was not pertinent to his

murder conviction or to the appropriate penalty to be imposed. (See ante, at

pp. 57-60.) For the reasons stated in our earlier discussion, we conclude that the

prosecutor did not commit misconduct.

Defendant contends that on “numerous” occasions during argument the

prosecutor referred to facts that were not in evidence. The prosecutor stated that

“defendant saw John Germaine[,] and John and Dennis [Trede] look alike. . . .

[D]efendant said ‘Is that your brother?’ [Trede said] No, it’s not, it’s a friend.”14

Defense counsel objected on the ground that the prosecutor was misstating the

testimony. The trial court reminded the jury that the arguments of counsel are not

evidence. Defendant notes that the trial court earlier had sustained (on the ground

of hearsay) defendant’s objection to Trede’s testimony regarding what defendant

14

In an odd set of coincidences, it also appears that Dennis Trede closely

resembled John Germaine (as did the victim, Lorin Germaine, John Germaine’s
brother).

61

had said to Trede. But defendant fails to demonstrate that the prosecutor’s brief

reference infected the trial with such unfairness as to render the subsequent

conviction a denial of due process, or that the reference involved deceptive or

reprehensible methods employed to persuade the trial court or the jury. (People v.

Ayala (2000) 23 Cal.4th 225, 283-284 (Ayala).)

Defendant raises the same claim regarding the prosecutor’s comment on the

order in which the bullets were fired. The prosecutor stated: “Now if you recall,

the first two rounds did not penetrate the skull. Those were number 2 and number

3 here ―” Defense counsel objected on the ground that the pathologist had

testified she was unable to ascertain the order in which the bullets were fired. The

trial court reminded the jury that the arguments of counsel are not evidence. The

prosecutor next described the evidence supporting the ballistic expert’s opinion,

based upon certain assumptions, that two shots were fired into the victim’s scalp in

light of the combined weight of the fragments.

Defendant reiterates in this court his argument that the pathologist was

unable to determine the order in which the bullet wounds were sustained. But in

light of defendant’s statement to Gronley that after defendant fired the first shot

the victim grabbed his head, looked at defendant, and asked defendant what he

was doing, it reasonably may be inferred that the victim sustained one or more

superficial gunshot wounds before the fatal ones. In any event, the prosecutor’s

use of the word “first” was isolated, and his apparent point was to refer to the

ballistic expert’s conclusion that there were two bullet wounds in the victim’s

scalp, not one, regardless of the order in which those shots were fired.

Next, defendant contends the prosecutor’s statement that the defense had

“asked for and got [an instruction on] murder in the second degree” was not based

upon the evidence. Defense counsel objected and sought an admonition. The trial

court “advise[d] the jury they will be instructed on the law at the conclusion of the

62

arguments of counsel.” Defendant correctly observes there is no evidence who

requested the second degree murder instruction, and in any event that information

is irrelevant. Nonetheless, the comment was brief and probably not given any

consideration by the jury, and defendant makes no attempt to demonstrate that it

infected the trial with such a degree of unfairness as to render the subsequent

conviction a denial of due process, or involved the use of deceptive or

reprehensible methods to persuade the trial court or the jury. (Ayala, supra, 23

Cal.4th at pp. 283-284.)

Finally, defendant contends that the prosecutor’s reference to gunshot residue

was not based upon the evidence. During defendant’s closing argument, in the

course of challenging the thoroughness of the police investigation, counsel stated:

“The fact that there is no evidence that when the defendant was arrested any

attempt was made to find out if he had discharged the firearm, had powder burns

on his clothes or his hands . . . .” Apparently in response, the prosecutor stated,

“What if? That’s pure speculation. What if. Did they take powder burns off the

defendant’s hands two days after a shooting? Can’t.” Defense counsel objected

on the ground that “That’s not in the evidence.” The trial court reminded the jury

that “the statements of counsel are not evidence.” Defendant is correct in noting

that no evidence was introduced regarding the ability to detect powder burns two

days following a shooting, but in any event the prosecutor’s comment was brief

and cannot reasonably be viewed as having affected the verdict.

7. Asserted additional instructional error

a. Instructions on consciousness of guilt

Defendant contends that his murder and robbery convictions must be

reversed because the trial court erroneously instructed the jury that defendant’s

false statements and attempts to suppress evidence, if any, could be considered as

evidence of guilt.

63

The jury in this case was instructed, in the language of CALJIC Nos. 2.03

and 2.06, that any willfully false or deliberately misleading statements or efforts to

conceal or destroy evidence on the part of defendant could be considered as a

circumstance tending to prove consciousness of guilt.15 Contrary to defendant’s

assertion, neither instruction was improper merely because the theory of the

defense was that defendant assisted Donald Willis only after the murder and the

robbery were committed and hence the defense theory already “presupposed

commission of a crime.” If found to have been made, defendant’s false statements

to the police disclaiming his involvement in the robbery of Lorin Germaine, and

his attempt to wipe down and alter the murder weapon, were evidence of a

consciousness of guilt of the robbery and the murder. As such, the evidence was

relevant to a determination of defendant’s guilt of those offenses, even though the

defense conceded that other offenses were committed.

Defendant also contends that these instructions allowed the jury to draw

impermissible inferences. We previously have rejected this claim, and defendant

fails to offer any persuasive basis for revisiting our prior decision. (People v.

15

The jury was instructed: “If you find that before this trial the defendant

made a willfully false or deliberately misleading statement concerning the crimes
for which he is now being tried, you may consider such statement as a
circumstance tending to prove a consciousness of guilt. However, such conduct is
not sufficient by itself to prove guilt and its weight and significance, if any, are
matters for your determination.” The jury further was instructed: “If you find that
a defendant attempted to suppress evidence against himself in any manner, such as
by destroying evidence or by concealing evidence, such attempt may be
considered by you as a circumstance tending to show a consciousness of guilt.
However, such conduct is not sufficient by itself to prove guilt, and its weight and
significance if any are matters for your consideration.”

64

Breaux (1991) 1 Cal.4th 281, 303-304 (Breaux) [nothing in CALJIC Nos. 2.03 and

2.06 compels the drawing of impermissible inferences].)

b. Asserted failure to instruct on being an accessory after the fact

Defendant contends that the trial court failed to instruct the jury on the crime

of being an accessory after the fact, in violation of defendant’s state and federal

constitutional rights to trial by jury and due process of law, and his right under the

Eighth Amendment to procedures ensuring a reliable guilt phase verdict.16 We

conclude that no such error occurred.

Defendant concedes that the offense of being an accessory after the fact is not

a lesser included offense to robbery and murder, and that he did not request an

instruction to the jury regarding this crime.17 We have held that a trial court has

no duty to instruct on an uncharged lesser related offense when requested to do so

by the defendant (People v. Birks (1998) 19 Cal.4th 108, 136) and, therefore, it is

clear that the trial court did not err in failing sua sponte to so instruct on that point.

Nor, contrary to his assertion, was defendant deprived of an adequate

opportunity to present his defense. The jury fully was apprised of the theory of the

16

Section 32 provides: “Every person who, after a felony has been

committed, harbors, conceals, or aids a principal in such felony, with the intent
that said principal may avoid or escape from arrest, trial, conviction or
punishment, having knowledge that said principal has committed such felony or
has been charged with such felony or convicted thereof, is an accessory to such
felony.”

17

Despite that concession, in his reply brief defendant refers to “the lesser

included offense of accessory after the fact.” In view of his earlier concession,
and the circumstance that defendant’s briefs do not contain any analysis why the
offense of being an accessory after the fact is a lesser included offense to any of
the charged offenses, we presume that this isolated reference was not intended to
set forth a separate claim of error.

65

defense through defendant’s statement to the police, the defense’s impeachment of

prosecution witnesses, and defense counsel’s closing argument.

8. Asserted juror misconduct

Defendant contends that the trial court violated his state and federal rights to

fair hearing and trial, and reliable guilt and penalty phase verdicts, by failing to

hold an adequate hearing after learning that Juror D. N. committed misconduct in

speaking to nonjurors about the case and prejudging it. Defendant further asserts

that the error requires reversal of his conviction and the sentence of death.

a. Factual background

On November 6, 1989, the jury returned its guilt phase verdict. Prior to the

commencement of the penalty phase, on November 15 defense counsel brought to

the court’s attention an alleged incident of juror misconduct, further filing on

November 20 a written “motion for mistrial and new trial.” In support of that

motion, defendant attached the declarations of Bobby McGough and Ellis

Williams.18

The trial court held a hearing on the motion on November 27. Mr. McGough

testified that he knew Juror D. N. because at the time McGough lived on Dohr

Street the juror lived across the street from him, and McGough had lived with

Juror D. N.’s sister, J. N. McGough also had known defendant since 1985, when

McGough brought his automobile to a body shop where defendant worked. At

that time, McGough had a conversation with defendant about defendant’s racism.

On a Thursday in late October or early November 1989, at approximately

11:30 a.m. or 12:00 noon, McGough, who previously had been convicted of four

18

Defendant also attached the declarations of defense counsel and a defense

investigator that, as relevant here, contained inadmissible hearsay.

66

felonies, was in custody at court, waiting to appear for “multiple armed robbery

and assault with a deadly weapon.”19 McGough testified that he noticed Juror

D. N., called out to him, and then had a four-minute to five-minute conversation

with the juror. McGough was on one side and Juror D. N. was on the other side of

a door that had a screen on it. Ellis Williams, McGough’s codefendant, also was

present.

In their conversation, Juror D. N. told McGough, in a sentence that was

interrupted and never was completed, that defendant “was giving him dirty looks,

looks that consisted of racial — ”20 Juror D. N. also told McGough in the middle

of the conversation that he “wasn’t going to vote not guilty in terms of

[defendant], that him and two other ladies were going to vote not guilty.” [Sic.]

At the end of the conversation, McGough told Juror D. N. “to go ahead and do

what you gotta do.” The conversation ended when a man told Juror D. N. and

another woman who was about 12 to 18 feet away, “It’s time to go in.” On the

same day McGough relayed this conversation to defendant during the lunch break.

Ellis Williams also testified at the hearing. Williams had one prior felony

conviction, recently had pleaded guilty to five counts of robbery and “a few”

counts of assault with a deadly weapon, and was awaiting sentencing on the latter

charges. Williams testified that at some point while he and McGough were at

court, McGough had a conversation with a Black juror, who was 5 feet 7 inches or

19

McGough ultimately pleaded guilty to “seven robberies and use of a gun

and nine assaults with deadly weapons.”

20

In his declaration, McGough stated that Juror D. N., “who is black, told me

that he thought the defendant looked at him ‘funny’ during the trial with dirty
looks that Mr. [N.] took as racial prejudice against him by [defendant], who is
white.”

67

5 feet 8 inches in height and weighed approximately “150, 160 pounds.”

McGough had called out to the juror and inquired whether he remembered

McGough “from when he used to date his sister.” The conversation was two or

three minutes and no more than five minutes in length. During the conversation,

Williams left the area “for a minute or two.” Williams did not see anyone

standing near the juror during the conversation.

Juror D. N. also testified. Although the trial court encouraged counsel for

both parties to suggest questions to the court outside the presence of the juror, the

court conducted all of the questioning of Juror D. N. In response to questioning,

that juror stated that during the course of the trial, he did not have any

conversation with an individual incarcerated in a holding cell in the area of the

jury deliberation room, or any discussion about the case with anyone who was

inside a holding cell. At some point when the jurors headed down the stairs to the

courtroom, Juror D. N. heard someone “hollering” something like: “The guy is

innocent, the guy is innocent, he didn’t do it.” The juror could not tell who was

yelling or to whom the comment was directed, nor could he recall whether the

incident occurred during deliberations. The jurors never discussed the comment

during deliberations. Juror D. N. knew that 10 to 15 years earlier his sister J. N.

had dated someone named “Bobby,” but the juror was not certain he ever had seen

“Bobby” or whether he would recognize the person if he saw him. Juror D. N.

stated that he had lived on Dohr Street. The court admonished Juror D. N. not to

discuss the hearing or what had transpired at the hearing with anyone.

The trial court denied the motion for a mistrial and for a new trial, as well as

defendant’s request to discharge Juror D. N. The court found Juror D. N.’s

testimony “more credible than that of the other witnesses. Further, as to the

comments that Mr. [D. N.] testified that he heard, there is no sufficient basis to

believe at this time, . . . that the juror’s impartiality was affected, the defendant’s

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case thereby prejudiced or harmed, the fairness of the trial affected or the verdict

affected.”

b. Analysis

In determining whether juror misconduct occurred, “[w]e accept the trial

court’s credibility determinations and findings on questions of historical fact if

supported by substantial evidence.” (People v. Nesler (1997) 16 Cal.4th 561, 582

(lead opn. of George, C.J.); People v. Pride (1992) 3 Cal.4th 195, 260 (Pride)

[“we defer to the court’s observations and credibility determinations” regarding

whether misconduct occurred].) In the present case, the trial court credited the

testimony of Juror D. N. over that of McGough and Williams, and found that no

misconduct had occurred. Because that finding is supported by substantial

evidence we defer to it.

Contrary to defendant’s assertion, the hearing held by the trial court on this

matter was adequate in dealing with the possibility of juror misconduct. Defense

counsel reasonably was precluded from eliciting testimony from other jurors

merely to ascertain whether anyone else observed the alleged conversation

between Juror D. N. and McGough, or heard a voice “hollering” down the stairs.

(See People v. Hedgecock (1990) 51 Cal.3d 395, 419 (Hedgecock) [evidentiary

“hearing should not be used as a ‘fishing expedition’ to search for possible

misconduct”].)

Defendant also contends the trial court abused its discretion in failing to hold

a second evidentiary hearing on additional claims of juror misconduct following

the penalty phase. In support of his motion for new trial, defendant submitted a

March 24, 1990 declaration from Juror D. St. stating in relevant part: “I observed

during deliberations a prisoner speak to [D. N.], another juror, when Mr. [D. N.]

and myself were in the hall outside the jury room. The prisoner yelled out hello to

Mr. [D. N.] from behind a door with a screen, and Mr. [D. N.] went up to the door

69

to talk to the prisoner. Mr. [D. N.] told me that the prisoner had dated his sister,

and I joked with Mr. [D. N.] about who his friends were. Mr. [D. N.] did not

speak with the prisoner about the Schmeck trial. I believe Mr. Schmeck received a

just sentence and a fair trial.”

We conclude that the trial court did not abuse its discretion in failing to hold

a further evidentiary hearing. The trial court is required to hold such a hearing

only when the defense adduces evidence demonstrating a “strong possibility that

prejudicial misconduct has occurred,” and generally a hearing is unnecessary

unless there is a material conflict in the evidence presented by the parties.

(Hedgecock, supra, 51 Cal.3d at p. 419.) The declaration of Juror D. St. states

merely that the prisoner called out “hello,” and that Juror D. N. “went up to the

door to talk to the prisoner.” Thus, it is not clear whether there was any

conversation between Juror D. N. and the prisoner, or whether there was an

interruption as Juror D. N. approached the prisoner. Moreover, even assuming

that a conversation occurred, whether Juror D. N. spoke to someone was not a

material issue in the case, and evidence of any such conversation did not create a

likelihood of prejudicial misconduct. Rather, the conversation, if one occurred,

was relevant only if Juror D. N. spoke to a third person about the case, and the

declaration expressly stated that the juror did not do so. Indeed, the trial court

previously had held an evidentiary hearing to investigate assertions that the juror

committed misconduct, and found no misconduct. Under these circumstances, the

trial court acted within its discretion in declining to hold a second evidentiary

hearing. (People v. Brown (2003) 31 Cal.4th 518, 582.)

C. Penalty phase

1. Failure to discharge Juror D. N.

Defendant contends that even if Juror D. N. did not engage in misconduct at

the guilt phase, his reaction to the trial court’s inquiry and to events subsequent to

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that inquiry demonstrated a significant risk that Juror D. N. was biased against

defendant, and hence the trial court’s failure to discharge that juror violated

defendant’s federal and state constitutional rights to a fair penalty phase and his

Eighth Amendment right to a reliable penalty phase determination.

On November 16, 1989, while discussing the claims of misconduct by Juror

D. N. to be considered at the hearing on November 27, 1989, the trial court stated

that “out of an abundance of caution, I know it is not necessary but there was

discussion about declarations and the declarations to which the court was referring

I hope obviously w[ere] declarations from the two prisoners set forth in [defense

counsel] Mr. Meyer’s declaration, and I know it need not be said. The jury has not

been discharged and we were scheduled to proceed with the penalty proceeding

and I’m not suggesting or directing that declarations be taken from sitting jurors.

That is not to occur at this stage of the proceedings. I know I need not say this but

I want to make sure there was no misunderstanding. . . . [W]e are clear on the

issue of no contact with jurors I presume, Mr. Meyer?” Attorney Meyer

responded, “Certainly clear with me.”

On November 29, 1989, two days after the hearing and one day after the

ruling on the motion for mistrial and new trial, the court clerk received a telephone

call from Juror D. N. asking to speak with the trial judge. Juror D. N. was advised

by the clerk to put any concerns in writing, and counsel were advised of his call.

Later that same day, Juror D. N. delivered a letter to the court in which he

inquired: “Is it lawful or unlawful for an investigator, an official, or any other

persons from the office of the public defender to personally go to the residence of

an immediate family member of a juror with no prior notice and question them off

the record regarding matters related and/or not unrelated to this case on [sic]

parties involved and parties not involved in this case? Do they have [the] right to

question members of a juror’s family regarding the juror’s whereabouts such as

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where does he work? What church does he go to? Where does he live? Et cetera.

If this should happen to a juror in a case such as this what should he or she do if

approached by above officials? Is this to be expected in a case such [as] this?”

After receiving this letter, the trial court held a hearing on November 30,

1989, at which Juror D. N. and counsel were present. Juror D. N. testified that

when his sister J. N. (the letter N signifies her former surname) telephoned him

late on Tuesday night, November 28, 1989 (one day following the earlier hearing

on the claims of juror misconduct), to invite him to a baby shower, he told his

sister that if anyone asked for his address or telephone number, not to give them

that information. J. N. replied, “It’s a funny thing that you asked me that because

somebody already came looking for you.” On the telephone, and later in person,

J. N. relayed to Juror D. N. that that morning, at approximately 9:00 or 9:30, a

woman knocked at J. N.’s door. J. N. let her in, and the woman began to ask J. N.

a series of questions, including whether J. N. had lived with Juror D. N. on Dohr

Street. J. N. had answered, “No.” J. N. was surprised that the woman had located

her, because she had not used this last name for 20 years. The woman visitor was

forceful, and J. N., who was nine months pregnant, asked her to leave. The

woman responded that she had to obtain this information, and continued her series

of questions, such as where Juror D. N. resided and worked. At that point, J. N.’s

husband entered the room because he had heard J. N. ask the woman to leave, and

he said, “You’re gonna have to leave, ma’am.” The woman continued with her

questioning, asking J. N. whether she knew Bobby or defendant. J. N. replied,

“No, who are these people?” Her husband stated that all Juror D. N. did was “go

to work and go to church,” prompting the woman to inquire as to which church he

attended. J. N.’s husband again asked the woman to leave, and she then wrote on

a legal pad something to the effect that she “did not obtain any information.” The

woman then asked J. N.’s husband for his telephone number. He replied that they

72

did not have a telephone number yet, and although they expected to receive one,

he would not divulge that information to the woman, and he again asked her to

leave. At that point, the woman gave J. N. a business card identifying herself as

Elizabeth Litov, a senior investigator in the Office of the Public Defender.

After receiving this information from his sister, Juror D. N. had difficulty

sleeping and wondered what was the proper thing to do in such a situation. He

stated at the hearing: “That’s why I wrote the letter. . . . Because I didn’t want to

jeopardize this case in any kind of way . . . . I wanted to know how I go about

handling something like this if it happens to a juror.”

The court assured Juror D. N. he had done the correct thing in bringing the

incident to the court’s attention. In response to the court’s inquiry as to whether

Juror D. N. could continue to be fair and impartial to both sides, he said, “Yeah,

because . . . I want Mark and Mrs. Germaine to get a — I want to hear both sides

basically. I can do that. I been like that since the beginning.” The court asked,

“And you continue to feel that way?” Juror D. N. said, “Yeah, uh-huh . . . It’s no

reflection on him.” The court asked, “No reflection on the defendant?” Juror

D. N. said, “No, huh-uh, Mark deserves a fair trial.” The court subsequently

asked, “Based on everything as you’ve described it that’s occurred, is there any

reason at all that you can’t be a fair juror here and give Mr. Schmeck a fair trial?”

Juror D. N. answered, “ “None whatsoever.” The court asked, “And give the

People a fair trial?” Juror D. N. replied, “None whatsoever.”

The court also asked Juror D. N. about the earlier inquiry, held on Monday

November 27, 1989: “Is there anything at all about the questions that I asked on

Monday or that inquiry that you feel impacts your ability to be fair and impartial

to both sides in this case?” Juror D. N. responded, “No, of course not.” The court

admonished Juror D. N. not to discuss the case, and not to discuss with any other

73

juror anything that had occurred at the November 27 or November 30 hearings, or

“anything about” his letter to the court. Juror D. N. said, “No problem.”

Defendant moved to discharge Juror D. N. for implied bias. After hearing

argument, the trial court denied the motion. The court noted that Juror D. N.

consistently had stated “he could be fair and that what occurred was no reflection

on the defendant, that the defendant deserved a fair trial.”

Pursuant to section 1089, when a trial court’s denial of a motion to discharge

a juror is supported by substantial evidence, it will be upheld. (See Turner, supra,

8 Cal.4th at p. 205.) In the present case, the trial court, which was in a position to

observe Juror D. N.’s demeanor, found that the juror consistently had stated that

he could be fair and did not harbor bias against defendant because of the conduct

of the Public Defender’s investigator. The trial court acted within its discretion in

declining to discharge Juror D. N. Lacking any factual predicate, defendant’s

constitutional claims also fail.

The trial court also did not abuse its discretion in denying defendant’s motion

to discharge Juror D. N. after the first inquiry held on November 27, 1989. Juror

D. N. specifically was asked whether anything in that inquiry affected his ability

to be fair and impartial, and he responded in the negative. Although defendant

asserts there was “a genuine risk . . . that [Juror D. N.] would believe the defense

instigated the misconduct inquiry,” such a concern is unfounded in view of the

circumstance that the court, not counsel, conducted the examination. Substantial

evidence supports the trial court’s rulings.

2. Asserted prosecutorial misconduct

Defendant contends that misconduct by the prosecutor at the penalty phase

violated his federal and state rights to due process of law and a reliable penalty

phase determination. Considering the claims both singly and cumulatively, we

conclude there was no prosecutorial misconduct.

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Defendant asserts that the prosecutor “attack[ed] the integrity of defense

counsel, cast aspersions on defense counsel, [and] suggest[ed] that defense counsel

ha[d] fabricated a defense.” First, defendant notes that the prosecutor displayed

for the jury a photograph of defendant taken at the time of his arrest, and

commented that the defense had altered defendant’s appearance at trial so that he

did not look “like the dope dealing lying rat that he really is.” Defendant did not

object to this comment below, and no exception to the general requirement of an

objection applies. Defendant therefore has forfeited this claim of error. (People v.

Boyette (2002) 29 Cal.4th 381, 432.) Moreover, the jury properly could be shown

any differences between defendant’s past and present appearance, and the

prosecutor’s remark constituted fair comment on such evidence. The prosecutor’s

remark came “within the bounds of the ‘wide latitude’ given to prosecutors during

closing argument” at the penalty phase. (Welch, supra, 20 Cal.4th at p. 763; see

People v. Hawkins (1995) 10 Cal.4th 920, 961 [no misconduct in referring to the

defendant as “ ‘coiled like a snake,’ ” or to life imprisonment for the defendant

being like “ ‘putting a rabid dog in the pound’ ”].)

Defendant asserts that the prosecutor committed misconduct by stating:

“Recall in the guilt phase that the defense counsel argued to you knowing well that

it wasn’t true that those blue Levi’s were the trousers that the defendant was

wearing when he murdered . . . Lorin Germaine. You know that that wasn’t true.

You know that the defense accused Jamie Gronley of conspiring to commit this

murder with another person. Falsely accused her. You know that they tried to get

the defendant off from being found guilty of first degree murder, robbery and the

special circumstance. They didn’t want him convicted at all.” Defendant also

objects to the prosecutor’s comments that “you can’t believe anything they tell

you,” and that defendant was “a coward. He wouldn’t stand up to anyone but he

would sneak up behind you. Maybe like they’ve been trying to sneak up behind

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you all telling you one lie after another and then asking you don’t gas him.” The

defense did not object to the prosecutor’s comments; no exception to the general

requirement of an objection applies, and defendant’s claim of error therefore is

forfeited. (People v. Turner, supra, 34 Cal.4th 406, 430.)

We similarly view the prosecutor’s comment that, “When [Defense Counsel]

Judith Harris came out here and told you that it was tragic, but she doesn’t care.

She does not want you to give the defendant the death penalty notwithstanding

that the severity of this crime, the severity of the circumstances and the

defendant’s past call for it clearly and loudly . . . .” Defendant did not object; no

exception applies to the general requirement of an objection, and defendant’s

claim of error is therefore forfeited.

Defendant also claims that the prosecutor “suggest[ed] that defense counsel

believe[d] his client [was] guilty or [did] not believe in his client’s case.”

Defendant relies upon the prosecutor’s statement, “There isn’t one person in this

room, not one, that has any doubt about the defendant’s responsibility in this

case.” Defendant objected; the jury was admonished that the statements of

counsel are not evidence, and the prosecutor moved on to a different topic. There

is no reasonable likelihood that the jury understood the prosecutor’s fleeting

remark as referring to defense counsel.

Defendant next asserts that the prosecutor made misstatements of law. The

prosecutor argued: “The question is . . . if the mitigating circumstances are

substantially outweighing of the aggravating factors, then you can return a life in

prison without the possibility of parole. If the mitigating circumstances and the

aggravating factors are equal, then you may return and must return a verdict of life

without parole. But if the aggravating factors outweigh the mitigating

circumstances, . . . you may return a death [sic]. When you do, the aggravating

factors must so substantially outweigh the mitigating circumstances that it calls for

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the defendant’s death.” Defendant did not object to this statement; no exception to

the general requirement of an objection is applicable, and defendant’s claim of

error is therefore forfeited. Moreover, the slight misdescription of the weight of

the mitigating factors would not have misled the jury, in light of the other

comments by the prosecutor and the instructions given by the court.

Nor did the prosecutor commit misconduct by stating that “sympathy is a

factor both for aggravation and for mitigation if any.” Defendant objected and

sought an assignment of misconduct, and the court admonished the jury that it

would be “instructed as to the law at the conclusion of the arguments of counsel.”

A jury properly may consider sympathy for the defendant in determining the

weight of aggravating evidence, and that, apparently, is what the prosecutor

meant. Shortly before the making the comment assigned as error, the prosecutor

stated: “You ― each and every one of you ― are free to assign whatever moral or

sympathetic value you deem appropriate to each and all ― all includes the

aggravating factors ― to each and all of the various factors you are permitted to

consider.” Nor, contrary to defendant’s contention, did the prosecutor “repeatedly

[tell] the jury it could consider defendant’s lack of remorse in determining if

sympathy should be considered aggravating.” Moreover, the jury was instructed:

“While remorse is a factor you may consider in mitigation, you may not consider

the absence of remorse as a factor in aggravation.”

Defendant contends that the prosecutor “minimized the magnitude” of the

penalty decision by referring to a statement by the philosopher Immanuel Kant

that “The last murderer on earth has to be punished, the last, otherwise there is no

justice.” We previously have rejected the substantially similar claim that such a

reference constitutes error under Caldwell, supra, 472 U.S. 320. (People v. Young

(2005) 34 Cal.4th 1149, 1222 [no Caldwell error in citing to Kant, because there

was “no reasonable likelihood that the prosecutor’s argument misled the jury

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regarding its responsibility in determining the appropriateness of a death

sentence”].)

Finally, defendant asserts that the prosecutor improperly commented on

defendant’s decision not to testify at the penalty phase. Nothing in the

prosecutor’s closing argument reasonably can be so construed. Moreover, the jury

was instructed at the request of the defense that defendant had a “constitutional

right not to be compelled to testify at . . . the penalty phase,” and that the jury

“must not draw any inference from the fact that a defendant does not testify.

Further, you must neither discuss this matter nor permit it to enter into your

deliberations in any way.”

3. Asserted improper admission of facts underlying the Washington

State prior conviction

Defendant contends that the trial court’s admission of the facts underlying his

1984 prior felony theft conviction in Washington State, and the prosecutor’s

reliance upon that evidence, violated his state and federal constitutional rights.

Defendant is correct that the circumstances surrounding his prior conviction of

nonviolent auto theft were inadmissible at the penalty phase. (§ 190.3, factor (c);

People v. Livaditis (1992) 2 Cal.4th 759, 776.) He did not, however, object on this

basis below, and his claim of error therefore is waived.21

Nor did the prosecutor commit misconduct by referring to defendant’s having

stolen a car and been placed on probation. Defendant did not object to the

prosecutor’s argument, and no exception to the general requirement of an

objection is applicable. Defendant’s claim of error therefore is forfeited.

21

Similarly, we need not address defendant’s further argument, made for the

first time on appeal, that in admitting evidence of these underlying facts, the trial
court violated the full faith and credit clause of the federal Constitution.

78

Moreover, on the merits, it would be difficult under the circumstances to fault the

prosecutor for simply referring to evidence that had been admitted by the court.

4. The trial court’s failure to inform defense counsel that the jury

believed defendant had suffered two prior felony convictions

Defendant contends that the trial court’s failure to inform defense counsel

that the jury believed defendant had suffered two prior felony convictions, and the

court’s failure to correct that misunderstanding, violated his constitutional rights

under the Fifth, Sixth, and Eighth Amendments of the United States Constitution,

and also violated section 1138.

At the conclusion of the penalty phase, the parties stipulated that the exhibits

that had been received in evidence could be forwarded to the jury room upon the

jury’s request, without the need to convene court and inform counsel. During its

deliberations, the jury sent the court a note that read: “We would like to see the

wedding photo, and the two (2) f[e]lony convictions from the State of

Washington.”

Defendant’s prior conviction repeatedly was referred to in the singular, both

by counsel in argument and by the court in instruction to the jury. Moreover, the

prosecutor encouraged the jury to examine the two exhibits (Nos. 64-B and 64-C)

documenting the prior conviction, in determining whether defendant had suffered

that conviction. In light of such argument and instruction, the trial court may have

interpreted the jury’s note to signify simply that the jury wished to see those two

documents. Because that interpretation was not unreasonable, and the parties had

stipulated not to convene whenever the jury merely requested exhibits, it does not

appear that the trial court erred in failing to notify counsel of the existence or

content of the jury’s note. Moreover, even had the jury believed, at the time it

requested the exhibits, that defendant had suffered two prior felony convictions, it

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would have been disabused of that notion after it received and examined the

documents that clearly reflected but a single prior conviction.

5. Asserted admission of nonstatutory evidence in aggravation

Defendant contends that the trial court’s admission of nonstatutory evidence

in aggravation regarding an uncharged burglary and theft, and the prosecutor’s

reliance upon that evidence in asking the jury to impose the death penalty, violated

his state and federal constitutional rights and requires that he be granted a new trial

as to penalty phase proceedings.

At the guilt phase, on cross-examination Jamie Gronley testified that she and

defendant had entered defendant’s aunt’s residence when the aunt was not present

and had stayed there for “a couple of weeks” until their arrest. The defense also

called as a witness defendant’s aunt, Monica Hall, who testified that she had

telephoned the police because defendant and Gronley were in her house without

her permission. Because that testimony was elicited by defendant, who did not

object to it, defendant on appeal does not challenge its admission at the guilt

phase.

Defendant asserts, however, that the evidence “had no place in the penalty

phase” because it was not unadjudicated violent criminal activity that was

admissible under section 190.3, factor (c). Contrary to defendant’s assertion, there

was no prosecutorial misconduct in referring to this guilt phase evidence during

the penalty phase closing argument. At defendant’s request, the jury was

instructed that it could consider as a circumstance in mitigation, or in determining

the appropriate sentence, evidence that defendant “has potential for rehabilitation

and for leading a useful life while incarcerated in prison for life without the

possibility of parole.” In arguing that defendant was not amenable to

rehabilitation, the prosecutor noted the residential break-in was one of many times

that defendant had squandered the opportunities in his life. In making this

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argument, the prosecutor did not suggest that the jury treat this evidence as

aggravating evidence. Moreover, the jury was instructed that other than the

alleged Washington theft conviction, “you may not consider any evidence of any

other crime as an aggravating circumstance.”

6. Routine instructional and constitutional challenges

Numerous pages of defendant’s opening brief are dedicated to presenting

generic claims that we repeatedly have considered and rejected in prior capital

cases. Before we address those individual claims, we comment generally upon the

briefing of these and similar generic claims.

Counsel for appellants regularly reassert such claims in this court, primarily

in order to preserve them for review in federal court. (See Vasquez v. Hillery

(1986) 474 U.S. 254, 257 [habeas corpus petitioner must have “fairly presented”

to the state courts what is, in “substance,” the same claim upon which he is

seeking federal habeas corpus review]; Baldwin v. Reese (2004) 541 U.S. 27, 29,

33 [a federal habeas corpus petitioner complies with the exhaustion requirement

by “alerting [the state] court to the federal nature of the claim”].)

Although a “fair” presentation is all that is necessary to preserve such claims,

the briefing that this court often receives in capital appeals such as this one

frequently contains extensive exploration and discussion that is unnecessary to

preserve generic claims that we repeatedly have considered and rejected. The

extensive nature of such briefing may arise from a perception that this court

requires such a presentation and that, in the absence of such a presentation, the

claim might be labeled by this court as “perfunctorily asserted” — thus possibly

precluding both merit review in this court and subsequent federal review of such

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claims. Upon reflection, we recognize that certain language in a number of our

prior decisions may have contributed to this perception.22

We take this opportunity to clarify that routine or generic claims that we

repeatedly have rejected, and which are presented to this court primarily to

preserve them for review by the federal courts, have been and will be deemed by

this court to be fairly presented so long as the claim is stated in a straightforward

manner accompanied by a brief argument. Such a claim is fairly presented even

when the defendant does no more than (i) identify the claim in the context of the

facts, (ii) note that we previously have rejected the same or a similar claim in a

prior decision, and (iii) ask us to reconsider that decision.

We now turn to the numerous contentions of instructional error and deficits

in the death penalty statute that defendant presents in order to preserve these

claims for future review. We find none meritorious.

22

See, for example, People v. Mayfield (1993) 5 Cal.4th 142, 196

(“Defendant’s constitutional claims largely are asserted perfunctorily and without
argument in support. Therefore we do not consider them.”); Turner, supra, 8
Cal.4th at page, 214, footnote 19 (“We discuss those arguments that are
sufficiently developed to be cognizable. To the extent defendant perfunctorily
asserts other claims, without development and, indeed, without a clear indication
that they are intended to be discrete contentions, they are not properly made, and
are rejected on that basis.”); People v. Freeman (1994) 8 Cal.4th 450, 482,
footnote 2 (same); People v. Catlin, supra, 26 Cal.4th at page 123, footnote 8
(“Defendant also claims perfunctorily that the admission of this evidence violated
his right under the state and federal Constitutions to a reliable guilt and penalty
determination. This claim, too, is waived and in any event is without merit.”);
People v. Griffin (2004) 33 Cal.4th 536, 589, footnote 25 (“To the extent
defendant claims that the trial court erred by refusing his request to instruct on the
elements of murder [and other offenses], we dismiss his claim ‘as not properly
raised: it is perfunctorily asserted without argument in support.’ [Citation.]”).

82

The jury was instructed that before it could consider the alleged 1984 crime

as an aggravating circumstance, “you must first be satisfied beyond a reasonable

doubt that the defendant was in fact convicted of such prior crime.” Defendant

contends the trial court violated his Sixth, Eighth, and Fourteenth Amendment

rights by failing to instruct the jury that it must agree unanimously that defendant

had committed that crime. The court’s instruction was sufficient. (People v.

Prieto (2003) 30 Cal.4th 226, 263, 275; People v. Medina (1995) 11 Cal.4th 694,

782.) Nothing in Ring v. Arizona (2002) 536 U.S. 584 (Ring) affects our

conclusions in this regard. (People v. Prieto, supra, 30 Cal.4th at pp. 263, 275.)

Nor did the trial court violate defendant’s Fifth, Sixth, Eighth, or Fourteenth

Amendment rights in failing to instruct the jury that it must find beyond a

reasonable doubt that the aggravating factors outweigh the mitigating factors.

(People v. Cox (2003) 30 Cal.4th 916, 971-972.) Again, nothing in Ring, supra,
536 U.S. 584, mandates a different conclusion. (Cox, supra, at pp. 971-972.) Nor

does the death penalty statute as construed by this court fail to perform the

narrowing function required by the Eighth Amendment. (People v. Sakarias

(2000) 22 Cal.4th 596, 632.) Section 190.3, factor (a), as applied, does not fail to

sufficiently minimize the risk of wholly arbitrary and capricious action prohibited

by the Eighth Amendment. (Cf. Tuilaepa v. California (1994) 512 U.S. 967, 975-

980; People v. Crittenden (1994) 9 Cal.4th 83, 156.) Nor do instructions in the

language of CALJIC No. 8.85 violate the Eighth and Fourteenth Amendments by

failing to delete inapplicable sentencing factors, delineate between aggravating

and mitigating circumstances, or specify a burden of proof either as to aggravation

(except for other crimes evidence) or the penalty decision. (People v. Box (2000)

23 Cal.4th 1153, 1217.) Nor are potentially mitigating factors unconstitutionally

limited by the adjectives “extreme” and “substantial,” because section 190.3,

factor (k), as expanded in People v. Easley (1983) 34 Cal.3d 858, allows

83

consideration of “ ‘any other circumstance which extenuates the gravity of the

crime even though it is not a legal excuse for the crime’ and any other ‘aspect of

[the] defendant’s character or record . . . that the defendant proffers as a basis for a

sentence less than death.’ ” (Id. at p. 878, fn. 10; People v. Yeoman (2003) 31

Cal.4th 93, 165.) Defendant fails to specify or offer any argument as to which

factors he concludes are “vague and ill-defined;” in any event, we do not perceive

that any factors are so.

Defendant further contends that the death penalty statute violates

international law, and that his death sentence therefore must be vacated.

Defendant fails to point to any authority that “prohibit[s] a sentence of death

rendered in accordance with state and federal constitutional and statutory

requirements” (People v. Hillhouse (2002) 27 Cal.4th 469, 511), and we reject his

claim.

D. Posttrial motions

1. Asserted juror misconduct

Defendant contends that the trial court’s refusal to grant his motion for new

trial or hold an evidentiary hearing after learning of alleged juror misconduct at

the penalty phase violated his right to a fair trial under principles of due process of

law, and his federal and state constitutional rights to the effective assistance of

counsel, requiring reversal of his death sentence.

At the penalty phase, the jury was instructed that it was not “to speculate

about whether or not there are circumstances that might preclude either a sentence

of death or life without the possibility of parole from being carried out. In making

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the penalty determination in this case, you must assume that whichever penalty

you find to be appropriate for defendant is in fact th[e] penalty he will receive.”

In support of his motion for new trial, defendant submitted the declaration of

Juror J. M.23 In opposition, the prosecution submitted the declarations of Jurors

P. L., K. M., and D. Sp. We consider only those portions of the declarations that

are relevant and whose admission in evidence did not violate Evidence Code

section 1150, subdivision (a). (People v. Danks (2004) 32 Cal.4th 269, 298, fn. 9,

301-302.)

Juror J. M. stated: “In deliberations, it was discussed in the jury room by

some jurors that the sentence of life imprisonment without the possibility of parole

would not necessarily mean that Mark Schmeck would spend the rest of his life in

prison. Several jurors discussed during deliberations that the defendant, if given a

life without the possibility of parole sentence, could be released in the future. [¶]

In the course of the penalty phase deliberations, the jury foreman raised the issue

of a television program in which a prisoner who had been sentenced to life

imprisonment without the possibility of parole came up for parole. This

information was discussed by jurors during deliberations.”

Juror P. L. stated that “[o]ne morning before all the jurors were assembled,

one of the jurors mentioned a talk show about a prisoner, who was sentenced to

life imprisonment without the possibility of parole, but was released and

23

Defendant also submitted the declaration of Lorelei Sontag, a capital case

consultant for the Public Defender’s Office. Sontag’s declaration pertained to her
conversations with Jurors D. Sp., K. M., and P. L., and noted that these jurors had
refused to sign declarations regarding what they purportedly had told Sontag. The
declaration solely contained hearsay or statements that violated Evidence Code
section 1150, and therefore was of little evidentiary value. (People v. Cox, supra,
53 Cal.3d 618, 695, 697.)

85

committed another crime. The Jury was not deliberating at this time and the

subject was dropped and never brought up again to my knowledge.” Juror K. M.

stated, “[O]ne morning before we began deliberation there was a conversation

which I overheard about a Television program ‘L.A. Law.’ The conversation was

between Mr. [E.], Mr. [V.] and Mr. [F.]. That conversation was never discussed

by any of the jurors in deliberations and was never part of the deliberations.”

Juror D. Sp. declared, “[O]ne morning during the Schmeck case, before the jurors

were assembled and deliberating, a juror mentioned a television show about an

unknown subject. I ignored it since it was not directed at me.”

No juror misconduct occurred. The declarations suggest that either before or

during deliberations, the jurors briefly discussed the possibility that defendant

would be released despite any verdict of life imprisonment without the possibility

of parole, and also discussed television episodes dramatizing such an event. As

we have observed: “The court can, and here did, tell the jury that a life without

parole sentence means just that, but no one can predict the future with certainty.

No one, including a court, can guarantee that a person will never be paroled or

otherwise get out of prison. The possibility that sometime in the future a person

might be released, perhaps because of a change in the law, is a matter ‘of common

knowledge appreciated by every juror who must choose between a death sentence

and a sentence of life without parole.’ ” (People v. Steele (2002) 27 Cal.4th 1230,

1264-1265; Pride, supra, 3 Cal.4th at pp. 267-268 [“Defendant incorrectly

suggests misconduct occurs whenever the jury, though instructed to consider only

the evidence before it, nonetheless discusses speculative, irrelevant, and/or

erroneous facts or opinions. . . . [¶] . . . The average juror undoubtedly worries

that a dangerous inmate might escape”]; People v. Cox, supra, 53 Cal.3d at p. 696

[juror’s reference to “former [California] Chief Justice Rose Bird and the fact ‘that

the death penalty had not been exercised in California since the 1960s’ ” was not

86

misconduct in light of it being only “a single reference to factual matters of which

the entire jury undoubtedly had some independent knowledge”].)

As we observed in People v. Riel (2000) 22 Cal.4th 1153 in a similar context:

“A prediction that the court would commute a death verdict, if in fact made, was

merely the kind of comment that is probably unavoidable when 12 persons of

widely varied backgrounds, experiences, and life views join in the give-and-take

of deliberations. Not all comments by all jurors at all times will be logical, or

even rational, or strictly speaking, correct. But such comments cannot impeach a

unanimous verdict; a jury verdict is not so fragile. ‘The introduction of much of

what might strictly be labeled ‘extraneous law’ cannot be deemed misconduct. . . .

Jurors bring to their deliberations knowledge and beliefs about general matters of

law and fact that find their source in everyday life and experience. That they do so

is one of the strengths of the jury system. It is also one of its weaknesses: it has

the potential to undermine determinations that should be made exclusively on the

evidence introduced by the parties and the instructions given by the court. Such a

weakness, however, must be tolerated. “[I]t is an impossible standard to require

. . . [the jury] to be a laboratory, completely sterilized and freed from any external

factors.” [Citation.] Moreover, under that ‘standard’ few verdicts would be proof

against challenge.’ [Citations.]” (Id. at p. 1219.)

We also conclude the trial court did not abuse its discretion in failing to hold

an evidentiary hearing. Defense counsel expressly stated during the hearing on the

motion for new trial that he had nothing to offer by way of evidence pertaining to

this matter.

2. Asserted erroneous ruling on automatic motion to modify penalty

Finally, defendant contends that in ruling on his automatic motion to modify

the death sentence (§ 190.4, subd. (e)), the trial court failed to consider the

mitigating evidence introduced by defendant at the penalty phase. The trial court

87

stated it was aware of its obligation to make “an independent determination

whether imposition of the death penalty upon the defendant is appropriate in light

of the relevant evidence and the applicable law.” In addition, the court stated it

had “examined and reviewed all the evidence presented to the jury, both in the

guilt phase and the penalty phase, in making its determination as to the appropriate

penalty,” and “personally and carefully reviewed the transcript[s] and evidence as

to the penalty phase of the trial.” Immediately prior to denying the motion, the

court concluded: “Considering all of the evidence and by independent review, the

court’s personal assessment is that the factors in aggravation outweigh those in

mitigation and further the court independently finds that the evidence in

aggravation is so substantial as compared to the evidence in mitigation that death

is warranted and not life without possibility of parole.”

Thus, read in context, the trial court’s challenged comments ― such as “there

are no factors in mitigation which will extenuate and mitigate the gravity of the

crimes committed” ― did not indicate that the court failed to consider the

mitigating evidence presented, or that it considered such evidence “legally

irrelevant.” Rather, such comments indicate, as does the trial court’s ultimate

ruling, that the court “considered all of the evidence offered in mitigation; it

merely found that much of that evidence did not, in fact, mitigate in light of the

evidence as a whole.” (Smith, supra, 30 Cal.4th at p. 640; People v. Steele, supra,

27 Cal.4th at pp. 1267-1268 [“Although the court must consider all proffered

mitigating evidence, as this court did, it need not find that any particular evidence

is in fact mitigating under the circumstances.”].)

88

DISPOSITION

The judgment is affirmed in its entirety.

GEORGE, C. J.

WE CONCUR:

KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.

89

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Schmeck

_________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S015008
Date Filed: August 25, 2005
__________________________________________________________________________________

Court: Superior
County: Alameda
Judge: William R. McGuiness

__________________________________________________________________________________

Attorneys for Appellant:

Cliff Gardner, under appointment by the Supreme Court, and Catherine White for Defendant and
Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gerald A. Engler,
Assistant Attorney General, Ronald S. Matthias and Violet M. Lee, Deputy Attorneys General, for Plaintiff
and Respondent.

90

Counsel who argued in Supreme Court (not intended for publication with opinion):

Cliff Gardner
2088 Union Street, Suite 3
San Francisco, CA 94123
(415) 922-9404

Violet M. Lee
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5896

91

Opinion Information

Date:	Docket Number:
Thu, 08/25/2005	S015008

Parties

1	The People (Respondent) Represented by Attorney General - San Francisco Office Violet M. Lee, Deputy Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA
2	Schmeck, Mark Lindsey (Appellant) Represented by Cliff Gardner Attorney At Law 19 Embarcadero Cove Oakland, CA
3	Schmeck, Mark Lindsey (Appellant) Represented by Lawrence A. Gibbs Attorney At Law P.O. Box 7639 Berkeley, CA

Disposition
Aug 25 2005	Opinion: Affirmed

Dockets
Apr 5 1990	Judgment of death
Apr 11 1990	Filed certified copy of Judgment of Death Rendered 4-5-90.
Nov 15 1990	Received: notice that Deputy A.G. Violet Lee will be representing respondent.
Mar 18 1992	Counsel appointment order filed Upon request of appellant for appointment of counsel, Ruth L. Robinson, Esq., is hereby appointed to represent appellant on his automatic appeal now pending in this court, including any related habeas proceedings.
Apr 22 1992	Application for Extension of Time filed By Applt to request correction of Record.
Apr 22 1992	Extension of Time application Granted To Applt To 6-29-92 To request Corr. of Record.
Jun 19 1992	Application for Extension of Time filed By Applt to request correction of Record.
Jun 22 1992	Extension of Time application Granted To Applt To 7-29-92 To request Corr. of Record.
Jul 30 1992	Received: Copy of Applt's Record correction motion filed in Superior Court (45 Pp.)
Oct 15 1992	Compensation awarded counsel
Dec 22 1992	Compensation awarded counsel
Jan 27 1993	Compensation awarded counsel
May 26 1993	Compensation awarded counsel
Jun 30 1993	Compensation awarded counsel
Jul 6 1994	Compensation awarded counsel
Jul 21 1994	Compensation awarded counsel
Mar 20 1998	Record on appeal filed C-14 (3,872 Pp.) and R-64 (7,759 Pp.) (Includes Material Under Seal). Clerk's Transcript includes 2,309 pages of Juror Questionnaires.
Mar 20 1998	Appellant's opening brief letter sent, due: 4-29-98.
Apr 27 1998	Application for Extension of Time filed To file Aob.
Apr 28 1998	Extension of Time application Granted To 6-29-98 To file AOB
Jun 26 1998	Application for Extension of Time filed To file Aob.
Jul 1 1998	Extension of Time application Granted To 8-28-98 To file AOB
Aug 28 1998	Application for Extension of Time filed To file Aob.
Aug 31 1998	Filed: Suppl Decl of Ruth Robinson in support of motion for Ext. of Time.
Sep 1 1998	Extension of Time application Granted To 10-27-98 To file AOB
Oct 26 1998	Application for Extension of Time filed To file Aob.
Oct 30 1998	Filed: Suppl Decl of Ruth Robinson in support of request for Eot.
Nov 3 1998	Extension of Time application Granted To 12-28-98 To file Aob.
Dec 28 1998	Application for Extension of Time filed To file Aob.
Jan 6 1999	Extension of Time application Granted To 2-26-99 To file AOB
Feb 26 1999	Application for Extension of Time filed To file Aob.
Mar 4 1999	Extension of Time application Granted To 4-27-99 To file AOB
Apr 27 1999	Application for Extension of Time filed To file Aob.
May 11 1999	Extension of Time application Granted To 6-28-99 To file AOB
Jun 28 1999	Application for Extension of Time filed To file Aob.
Jul 2 1999	Extension of Time application Granted To 8-27-99 To file AOB no further Extensions of time Are Contemplated
Aug 23 1999	Application for Extension of Time filed To file Aob.
Sep 2 1999	Extension of Time application Granted T0 10/26/99 to file Aob. no further Extensions of time will be Granted.
Oct 26 1999	Application for Extension of Time filed To file Aob.
Oct 29 1999	Extension of Time application Denied To file Aob.
Jul 13 2000	Counsel's status report received (confidential)
Oct 19 2000	Counsel's status report received (confidential)
Nov 1 2000	Order filed: Appellant's opening brief shall be filed on or before 12-1-2000. If the brief is not filed by that date, the court will consider issuance of an order directing counsel Ruth Robinson to show cause before this court, when the matter is ordered on calendar, why counsel should not be held in contempt of court and further payments suspended or other sanction imposed for the delay in the appellate process occasioned by the nine extensions of time to file the brief thus far granted.
Dec 1 2000	Counsel's status report received (confidential)
Dec 20 2000	Order to show cause issued (attorney contempt matter) In accordance with the authority vested in this court under Code of Civil Procedure section 1209, Attorney Ruth Louise Robinson, 4930 Fulton St., No. 301, San Francisco, CA, 94121, is ordered to show cause before this court on February 7, 2001, at 9 am at its courtroom in the State Library and Courts Building, 914 Capitol Mall, Sacramento, CA, why she should not be held in contempt of court for the willful neglect of her duty to file the appellant's opening brief in this case which was due on Dec. 1, 2000. The written return shall be filed with the court in the San Francisco clerk's office on or before Friday, January 5, 2001. (Votes: George, CJ, Mosk, Kennard, Baxter, Chin and Brown, J.J.)
Dec 21 2000	Case Ordered on Calendar: for OSC 2-7-01, 9am, Sac.
Feb 2 2001	Filed: attorney Ruth Robinson's return to OSC (perm.)
Feb 2 2001	Filed: confidential letter in support of return to OSC. (confidential)
Feb 2 2001	Motion filed by attorney Ruth Robinson to withdraw as counsel.
Feb 7 2001	Hearing held re Order to Show Cause re Contempt
Feb 13 2001	Order filed: Pursuant to the bench order issued on February 7, 2001: The motion to withdraw as appointed counsel, filed by Ruth Louise Robinson on February 2, 2001, is granted. The order filed on March 18, 1992, appointing Ms. Robinson as counsel of record for Mark Lindsey Schmeck is vacated. Michael Millman, Executive Director of the California Appellate Project, is appointed to serve as interim counsel on appeal for Mr. Schmeck. Ms. Robinson is ordered to deliver on or before February 14, 2001, the complete record on appeal, draft copies of all briefs thus far prepared, all materials related to the habeas corpus investigation, and all related papers and documents in her possession to the office of the California Appellate Project, One Ecker Place, San Francisco, CA 94105. Ms. Robinson is ordered to cooperate fully with interim counsel and with new counsel. The order to show cause re contempt issued December 20, 2000, is discharged.
Feb 20 2001	Received letter from: Atty Ruth Robinson dated 2/15/2001 re record delivered to CAP on 2/14/2001 and 2/20/2001.
Sep 13 2001	Counsel appointment order filed The order appointing Michael Millman, Executive Director of the California Appellate Project, to serve as interim counsel on appeal for appellant Mark Lindsey Schmeck, filed February 13, 2001, is hereby vacated. Cliff Gardner is hereby appointed to represent appellant Mark Lindsey Schmeck for the direct appeal in the above automatic appeal now pending in this court. Michael Millman, Executive Director of the California Appellate Project, is hereby appointed to serve as interim habeas corpus/executive clemency counsel of record for appellant Mark Lindsey Schmeck.
Sep 14 2001	Letter sent to: replacement counsel Cliff Gardner advising that at some point in the future, the court will send a letter advising counsel of the new briefing schedule.
Jan 11 2002	Counsel's status report received (confidential) from atty Gardner.
Mar 6 2002	Appellant's opening brief letter sent, due: 9-3-2002.
Aug 1 2002	Counsel's status report received (confidential) from atty Gardner.
Aug 7 2002	Compensation awarded counsel Atty Gardner
Aug 29 2002	Request for extension of time filed to file AOB. (1st request)
Sep 3 2002	Extension of time granted to 11-4-2002 to file AOB. The court anticipates that after that date, only two further extensions totaling 120 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Oct 29 2002	Request for extension of time filed To file appellant's opening brief. (2nd request)
Nov 4 2002	Extension of time granted To 1/3/2003 to file appellant's opening brief. The court anticipates that after that date, only one further extension totaling 60 additional days will be granted. Counsel is orderd to inform his or her assisting attorney or entity, if any, and assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet this schedule.
Nov 14 2002	Counsel's status report received (confidential) from atty Gardner.
Nov 21 2002	Compensation awarded counsel Atty Gardner
Jan 3 2003	Request for extension of time filed to file appellant's opening brief. (3rd request)
Jan 8 2003	Extension of time granted To 3/4/2003 to file appellant's opening brief. The court anticipates that after that date, no further extension will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Feb 19 2003	Counsel appointment order filed The order appointing Michael Millman, Executive Director of the California Appellate Project, to serve as interim habeas corpus/executive clemency counsel of record for appellant Mark Lindsey filed September 12, 2001, is hereby vacated. Lawrence A. Gibbs is hereby appointed to represent appellant Mark Lindsey Schmeck for habeas corpus/executive clemency proceedings related to the above automatic appeal now pending in this court.
Feb 19 2003	Compensation awarded counsel Atty Gibbs
Feb 28 2003	Application to file over-length brief filed (295 pp. appellant's opening brief submitted under separate cover)
Feb 28 2003	Request for judicial notice filed (in AA proceeding) (Appellant's request)
Mar 5 2003	Compensation awarded counsel Atty Gardner
Mar 5 2003	Order filed Appellant's application for order permitting filing of oversize brief is granted.
Mar 5 2003	Appellant's opening brief filed (295 pp.)
Mar 7 2003	Filed: Supplemental certificate of service of appliation for order permitting filing of oversize brief, applcication for judicial notice and appellant's opening brief.
Mar 7 2003	Opposition filed by respondent to appellant's request for judicial notice.
Apr 1 2003	Request for extension of time filed to file respondent's brief. (1st request)
Apr 4 2003	Extension of time granted to 6/3/2003 to file respondent's brief.
May 27 2003	Request for extension of time filed to file respondent's brief. (2nd request)
May 29 2003	Extension of time granted to 8/4/2003 to file respondent's brief. After that date, only two further extensions totaling about 90 additional days will be granted. Extension is granted based upon Deputy Attorney General Violet M. Lee's represenation that she anticipates filing that brief by 11/9/2003.
Jun 11 2003	Request for judicial notice denied Defendant Mark L. Schmeck's February 28, 2003 "Application for Judicial Notice Pursuant to California Rules of Court 41 and 41.5" is denied.
Jul 3 2003	Motion filed respondent's motion for copy of sealed portions of record.
Jul 28 2003	Request for extension of time filed to file respondent's brief. (3rd request)
Jul 31 2003	Extension of time granted to 10-3-2003 to file respondent's brief. After that date, only one further extension totaling about 30 additional days will be granted. Extension granted based upon Deputy AG Violet Lee's representation that she anticipates filing the brief by 11-9-2003.
Aug 6 2003	Counsel's status report received (confidential) from atty Gibbs.
Aug 6 2003	Filed: Confidential declaration of counsel Lawrence A. Gibbs pursuant to Penal Code Section 1241.
Aug 21 2003	Letter sent to: counsel advising that the court is considering whether to unseal, on its own motion, the documents that are the subject of respondent's "Motion for Copy of Sealed Portions of Record," filed on 7-3-2003. (See Cal. Rules of Court, rule 12.5(f)(2).) The court invites counsel to serve and file a response, if they wish, on or before September 5, 2003, addressing whether any of the documents in question is "required to be kept confidential by law" (Cal. Rules of Court, rule 12.5(a)), and if not, whether "(1) [t]here exists an overriding interest that overcomes the right of public access"; (2) [t]he overriding interest supports [continued] sealing"; "(3) [a] substantial probability exists that the overriding interest will be prejudiced" in the absence of continued sealing; "(4) [t]he proposed [continued] sealing is narrowly tailored"; and "(5) [n]o less restrictive means exist to achieve the overriding interest" (id., rule 243.1(d).
Aug 22 2003	Compensation awarded counsel Atty Gibbs
Aug 28 2003	Filed: respondent's response, dated 8-28-2003, to court's letter of 8-21-2003, regarding sealed record.
Sep 4 2003	Request for extension of time filed by appellant to file response to court's letter dated, 8/21/2003, regarding sealed record.
Sep 11 2003	Extension of time granted to 9/19/2003 to appellant to file response to the court's letter dated, 8/21/2003, regarding sealed record.
Sep 11 2003	Filed: appellant's response, dated 9-10-2003, to court's letter of 8-21-2003.
Sep 26 2003	Request for extension of time filed to file respondent's brief. (4th request)
Oct 1 2003	Order filed The Attorney General's July 3, 2003 "Motion for Copy of Sealed Portions of Record" is granted in part. The clerk is directed to provide copies of the following portions of the record to the Attorney General: Clerk's Transcript pages 983-985, 987-1013. On the court's own motion, the clerk is further directed to unseal the original portions of the record cited above. The remainder of the motion is denied.
Oct 1 2003	Extension of time granted to 11/12/2003 to file resondent's brief. After that date, no further extension is contemplated. Extension is granted based upon Deputy Attorney General Violet M. Lee's representation that she anticipates filing that brief by 11/9/2003.
Oct 9 2003	Counsel's status report received (confidential) from attorney Gibbs.
Nov 5 2003	Request for extension of time filed to file respondent's brief. (5th request)
Nov 12 2003	Extension of time granted to 11/24/2003 to file respondent's brief. Extension is granted based upon Deputy Attorney General Violet M. Lee's representation that she anticipates filing that brief by 11/24/2003. After that date, no further extension will be granted.
Nov 19 2003	Respondent's brief filed (173 pp.)
Dec 17 2003	Request for extension of time filed to file appellant's reply brief. (1st request)
Dec 23 2003	Extension of time granted to 2/9/2004 to file appellant's reply brief.
Jan 27 2004	Request for extension of time filed to file reply brief. (2nd request)
Jan 28 2004	Extension of time granted to 4-9-2004 to file reply brief.
Apr 1 2004	Counsel's status report received (confidential) from atty Gibbs.
Apr 7 2004	Request for extension of time filed to file appellant's reply brief. (3rd request)
Apr 12 2004	Extension of time granted to June 8, 2004 to file appellant's reply brief.
Apr 27 2004	Compensation awarded counsel Atty Gibbs
May 19 2004	Appellant's reply brief filed (24,567 words - 113 pp.)
Jun 7 2004	Compensation awarded counsel Atty Gardner
Jun 29 2004	Counsel's status report received (confidential) from atty Gibbs.
Sep 2 2004	Counsel's status report received (confidential) from atty Gibbs.
Sep 2 2004	Filed: Declaration of attorney Lawrence A. Gibbs pursuant to Penal Code Section 1241 (confidential).
Sep 29 2004	Compensation awarded counsel Atty Gibbs
Nov 1 2004	Exhibit(s) lodged People's 17 and 17A.
Dec 22 2004	Compensation awarded counsel Atty Gibbs
Feb 7 2005	Filed: Declaration of atty Gibbs pursuant to Penal Code Section 1241 (confidential).
Feb 9 2005	Counsel's status report received (confidential) from atty Gibbs.
Feb 16 2005	Compensation awarded counsel Atty Gibbs
Feb 18 2005	Related habeas corpus petition filed (concurrent) No. S131578
Feb 24 2005	Exhibit(s) lodged People's 64b and 64c.
Mar 3 2005	Compensation awarded counsel Atty Gibbs
Mar 16 2005	Oral argument letter sent advising counsel that the case could be scheduled for oral argument as early as the first May calendar, to be held the week of May 2, 2005, in San Francisco. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument.
Apr 27 2005	Compensation awarded counsel Atty Gibbs
May 3 2005	Case ordered on calendar 5/31/05, 2pm, LA
May 13 2005	Filed: respondent's focus issue letter, dated 5-12-2005.
May 17 2005	Filed: appellant's focus issue letter, dated 5-16-2005.
May 20 2005	Received: letter from respondent, dated 5-19-2005, with additional authority.
May 31 2005	Cause argued and submitted
Jun 6 2005	Exhibit(s) lodged People's 3
Jun 8 2005	Compensation awarded counsel Atty Gardner
Jul 8 2005	Exhibit(s) lodged People's nos. 2, 36 and 45.
Aug 3 2005	Change of contact information filed for: attorney Cliff Gardner.
Aug 25 2005	Opinion filed: Judgment affirmed in full Majority Opinion by George, C.J. -----joined by Kennard, Baxter, Werdegar, Chin & Moreno, JJ.
Sep 8 2005	Rehearing petition filed by appellant. (9 pp.)
Sep 12 2005	Filed: certificate of compliance re word count for appellant's petition for rehearing. (1775 words)
Sep 26 2005	Time extended to consider modification or rehearing to and including 11-23-2005, or the date upon which rehearing is either granted or denied, whichever occurs first. This order is entered nunc pro tunc as of 9-23-2005, due to clerical error.
Oct 12 2005	Remittitur issued (AA)
Oct 12 2005	Rehearing denied Opinion modified.
Oct 12 2005	Opinion modified - no change in judgment
Oct 17 2005	Received: acknowledgment of receipt of remittitur.
Oct 31 2005	Exhibit(s) returned People's 2, 3, 17, 17A, 45, 64B and 64C.
Nov 2 2005	Received: acknowledgment of receipt of exhibits.
Nov 3 2005	Order filed (150 day statement)
Jan 25 2006	Motion filed (AA confidential)
Apr 12 2006	Motion denied (confidential)

Briefs
Mar 5 2003	Appellant's opening brief filed
Nov 19 2003	Respondent's brief filed
May 19 2004	Appellant's reply brief filed

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Advocates On This Case

Cliff Gardner (Attorney At Law)

Lawrence A. Gibbs (Attorney At Law)

Attorney General - San Francisco Office (Violet M. Lee, Deputy Attorney General)

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