IN THE SUPREME COURT OF CALIFORNIA
Plaintiff and Respondent,
GREGORY CALVIN SMITH,
Santa Clara County
Defendant and Appellant.
Super. Ct. No. 140295
A jury convicted defendant Gregory Calvin Smith of murdering (Pen.
Code, § 187),1 raping (§ 261), and kidnapping (§ 207, subd. (a)) Ai Toyoshima,
an exchange student from Japan. It found the murder to be in the first degree and
under the special circumstances of rape murder and kidnap murder, and that
defendant kidnapped the victim for the purpose of rape. (§§ 190.2, subd. (a)(17),
667.8, subd. (a).) The jury also convicted defendant of other crimes committed
the same day against other victims, specifically, attempted robbery (§§ 211, 664),
first degree burglary (§§ 459, 460), and two counts of felony false imprisonment
(§§ 236, 237). As to all counts, it found that defendant personally used a firearm.
(§ 12022.5, subd. (a).) The jury found defendant not guilty of sodomy and found
not true the related special circumstance allegation of sodomy murder. (§§ 190.2,
subd. (a)(17), 286, subd. (c).)
All further statutory references are to the Penal Code unless otherwise
After a penalty trial, the jury returned a verdict of death. The court denied
the automatic motion to modify the verdict (§ 190.4) and imposed that sentence.
This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment.
A. Guilt Phase
1. Prosecution Evidence
On June 16, 1989, Ai Toyoshima, a Japanese student who had come to the
United States to learn English, went to a movie with some friends, including her
boyfriend, Mitsuhiro Fukumoto, another exchange student. She and Fukumoto
then went to a park in Los Gatos and, that evening, got on a bus to go home.
Defendant entered the bus at the same time. Around 9:00 p.m., Fukumoto got off
at his stop, leaving Toyoshima on the bus. Toyoshima got off near an elementary
school in San Jose. Defendant followed her.
Defendant accosted Toyoshima and forced her at gunpoint to go to the
elementary school, where he raped her. While raping her, he shot her in the chest
with a Raven Arms .25-caliber semiautomatic pistol.
After shooting Toyoshima, defendant attempted to steal a car parked in
front of a nearby liquor store. The store owner, John Ajlouni, tried to stop him.
Defendant pointed a gun at Ajlouni, told him to go back into the store, then
entered the car. A San Jose police car drove onto the parking lot. Ajlouni told the
officers that defendant was trying to rob him and he had a gun. Defendant got out
of the car and ran. One of the officers chased him, but he got away.
After fleeing the liquor store, defendant entered the home of Roy and Jean
Gritter. He pointed a gun at Roy and said, “I shot someone. I can also shoot you.”
He said he was looking for a “safe place” inside a home. He stayed for hours,
forcing the Gritters to remain at gunpoint. About half an hour after entering the
home, defendant made a telephone call to Hilda Ang, the victim’s host parent
while she was staying in the United States. Ang was concerned because
Toyoshima was late coming home. Defendant told Ang, “You know that park
down the way from your house, she’s there,” and hung up. He left the Gritters’
house sometime that night.
Ang called the police after receiving the telephone call. A short time later,
the police found Toyoshima lying on her back in the school yard, conscious but
partially paralyzed. She was dressed but wearing no underwear. She was pale,
wet, and cold. It appeared the sprinklers had gone on automatically, drenching
her. Paramedics took her to the hospital where, despite emergency medical
treatment, she died the next morning.
The cause of death was a gunshot wound to the chest. Delay in treatment
and hypothermia caused by her getting wet contributed to her death. The bullet
had passed through a lung, perforated the left subclavian artery and vein, fractured
a vertebra, and partially severed the spinal cord, paralyzing her lower body.
Sperm was found on vaginal and anal swabs. There was no other physical
evidence of forcible sodomy. Some evidence indicated the vaginal swab may
have contaminated the anal swab.
Following defendant’s arrest two months later on unrelated charges, he
confessed to these events to two sheriff’s deputies who were with him in a holding
cell while waiting for a lineup. He said he was confessing because it was “eating
[him] up inside.” He also said he “didn’t mean to kill her,” and he was “trying to
rape her” when “he shot her accidentally.” He said the “girl was struggling with
him as he was trying to rape her,” and that “he grabbed her by the throat and
started choking her.” She stopped struggling, so he put the gun down. He started
penetrating her. As he did so, she reached for the gun and a struggle ensued. She
tried to kick him in the groin but missed. In the process, the gun discharged.
Defendant started to run away but soon returned. The girl was still alive. She
asked him to write down a telephone number so he could call for help. He said he
did not want to touch anything because he did not want to leave fingerprints, but if
she told him the number he would memorize it. She told him a number and, after
he “dressed her,” he ran away.
Defendant told about his trying to take the car at the liquor store and then
entering the couple’s house. In the house, he called the number the girl had given
him and told the person at the other end that “the girl was bleeding in the park and
they should call an ambulance.” Eventually, he left the house and managed to
elude the police and make his way home, arriving around 3:00 a.m. Defendant
said he was not a “violent person,” but that rape was a “power trip” for him and
that “the power is what got him excited.”
Defendant showed the police where he had hidden Toyoshima’s underpants
in some juniper bushes near the school. The police recovered the underpants,
which contained semen. Defendant also described where he had disposed of the
gun after he left the Gritters’ house. Using this information, the police found the
weapon, with the safety on, in a woodshed about two blocks from the Gritters’
house. Ballistics testing established that a shell casing found at the scene of the
shooting came from that gun, and the bullet from the body could have been fired
from the gun. A firearms expert testified that the trigger pull on the gun was about
five and one-half pounds, and the gun was fired between 12 and 15 inches from
In defendant’s home in San Jose, the police found a knife, a .38-caliber
double-barreled derringer, and some ammunition that did not fit the derringer or
the gun used to shoot Toyoshima.
2. Defense Evidence
The defense presented expert testimony relating to the sodomy charge of
which the jury acquitted defendant, including that there might have been
“contamination from the vagina to the anus.” It also presented evidence of police
interviews with the Gritters. In addition, defendant testified.
Defendant testified that he had an “evil nature,” a portion of himself that he
did not like but that had “gotten out of control.” “There’s a part of me stronger at
times, and sometimes I overcome it, but it’s there.” He sometimes had a “strong
battle, and I needed help to defeat it.” “[A]fter trying to defeat it for such a long
period of time and losing, sometimes winning, and always do [sic] what the urge
led me to do, sometimes I would beat myself, but sometimes I wouldn’t, and after
losing the battle [that] night, . . . I attacked Ai Toyoshima.”
Defendant said he went outside that evening “to look for a girl,” not
necessarily to rape her but to see “whatever the situation presents.” “[A] strange,
funny urge came over me to, like, just go outside and see what happens.” He took
a gun that was loaded, he said, with only one bullet. He took it to intimidate or
scare, but not actually to shoot. He chose that gun because it was small and easy
to conceal. He owned another gun for which he had no ammunition, but he did
not take that one. He “noticed Ai Toyoshima that night in a vulnerable situation,
and all of a sudden that evil urge, almost like adrenaline[,] kicked in” and drove
him to follow her. “The urge was so strong and it overcame me, my better
judgment.” He showed the gun to Toyoshima, but only to scare her. He took her
to the park and raped her, holding the gun in his hand. At one point she reached
for the gun and kicked at him, and the gun discharged. Defendant denied
sodomizing or intending to shoot or kill her.
Defendant admitted trying to take the car to make his escape but said he did
not intend to deprive the owner of it permanently. He said he intended to “get rid
of the car” as soon as he was safe. He also admitted entering the Gritters’ home.
He said he was looking for a place to hide. From the house, he called the
telephone number that Toyoshima had given him, which he had memorized.
Defendant testified that when he was arrested two months later on a
different incident, he confessed freely to these crimes. He wanted to “take the
responsibility” for what he had done and also to be stopped from doing
“something crazy again,” since he could not stop himself. So he gave himself “up
on a silver platter.” He “told the officers that I wanted to clear my conscience. I
wanted to come clean and [say] that I was sorry for what I had done and that it was
an accident. The murder part.” He wanted “the truth to be known.”
B. Penalty Phase
1. Prosecution Evidence
The prosecution presented evidence that defendant committed additional
crimes in 1988 and 1989 that had originally been charged with these crimes but
later were severed (and, after the death verdict, dismissed).
On September 7, 1988, defendant assaulted a 16-year-old girl as she was
walking home from school. He tried to kiss her and put his hand around her
throat, threatening to break her neck if she screamed. He tried to force her into
some bushes, but a neighbor observed them and called out. Defendant ran away.
On November 13, 1988, defendant entered a woman’s apartment as she was
watching television, put a knife to her throat, choked her, and threatened to kill her
if she screamed. He took about $50 from her purse and left.
On November 21, 1988, defendant, armed with a knife, entered the
apartment of the mother of the 16-year-old girl he had earlier assaulted. He put a
sock in her mouth, blindfolded her, tied her with telephone wire, raped her, and
took between $300 and $325, which had been hidden in a pillow.
On December 7, 1988, a woman observed defendant standing on her
apartment patio behind a partially open sliding glass door and holding a
semiautomatic handgun. He told her to open the screen door, which was locked.
She managed to close the glass door. He demanded that she open that door.
Instead, she got on the floor, crawled into her bedroom, and summoned the police.
On December 8, 1988, defendant, armed with a handgun, approached a
woman in the garage of her apartment and demanded money. They entered her
apartment where she showed him her purse. A friend of hers then arrived.
Defendant forced both to lie on the floor while he looked around. He tied both up
and later forced the friend into a closet. He blindfolded the woman, took her into
the bedroom, hit her in the face, then raped her. At one point, he held the gun to
her head and threatened to shoot her. He tied her up again, put her into the closet
with her friend, then left, taking $65 to $70 from her purse.
In March 1989, defendant entered a woman’s apartment as she was
watching television, put a knife to her throat, put his hand over her mouth and
nose, and told her not to scream. He forced her onto her bed and tied her hands
together. He looked around the house, then raped her and, eventually, left.
On March 24, 1989, defendant approached a 19-year-old girl who was
sitting in her car, stuck a knife through the car window, pointed it at her neck,
demanded money, took some from her purse, got into the car by forcing the girl
onto the other side, cutting her finger in the process, drove the car several miles,
and then dropped her off and left with the car.
On April 14, 1989, defendant stabbed a woman in the abdomen while she
was in the laundry room of her apartment complex. The wound entered the liver
and injured a major vein. The woman was critically injured and had to endure two
surgeries to save her life.
On April 21, 1989, defendant, armed with a gun, approached a 16-year-old
girl as she was walking home from high school, threatened to shoot her, forced her
to a nearby park, and, when she told him she was having her period, forced her to
orally copulate him.
Also on April 21, 1989, defendant robbed two gas station attendants at
gunpoint of money in the station cash register.
On April 27, 1989, defendant assaulted a 17-year-old girl in the bathroom
of the same high school, put his hand over her mouth, pushed her into a toilet stall,
and put a knife to her neck.
On April 28, 1989, defendant grabbed a 16-year-old girl as she was riding a
bicycle at the same high school, covered her mouth with his hand, pointed a knife
at her, threatened to stab her, forced her to climb a fence, took off her pants and
underpants, tied her pants around her face so she could not see, and tried to rape
and sodomize her. When someone appeared, he ran away.
On August 13, 1989, defendant approached a 14-year-old girl on a bus and
spoke with her. Later, off the bus, he approached and spoke with her again, then
held onto her. He choked her and started pulling her towards an apartment garage,
telling her that she was lucky because he usually carried a “blade.” After a few
minutes, the girl managed to break away and escape.
On August 14, 1989, defendant approached a 15-year-old girl outside the
same high school, tried to kiss her, grabbed her by the neck, said he had a knife,
forced her to a more secluded area, and raped her.
The prosecution also presented evidence of two incidents of violence in jail.
In 1990, defendant threw a chair at his defense attorney at the time, Barbara Fargo,
hitting her. In 1991, he assaulted another jail inmate, hitting him and rendering
him unconscious. Defendant had a conviction in Nevada for credit card fraud.
Previously, during defendant’s guilt phase testimony, the jury had learned that he
also had felony convictions for forgery and possession of stolen property.
Shintaro and Mieko Toyoshima, Ai’s parents, testified about the impact of
their daughter’s death. Ai Toyoshima was 16 years old when she died.
2. Defense Evidence
The defense presented substantial evidence in mitigation. Various
witnesses, including family members, testified about his childhood and adulthood
and his family life. Many expressed their love for him and testified that he was
good to his family and others. He loved and cared for his twin daughters. Some
witnesses testified that defendant expressed remorse for his crimes. Barbara
Fargo, his original attorney, the one at whom he had thrown the chair, testified that
she thought that life without the possibility of parole would be the appropriate
punishment. One witness testified that defendant once helped rescue passengers in
a car accident, at some risk to himself.
The defense also presented evidence that before his arrest, there were many
suspects in the various crimes, and the victims’ descriptions of their assailant
varied. It then played to the jury a tape recording of a statement defendant made
on August 16, 1989, in which he confessed to these crimes (a different confession
than the one presented in the prosecution’s case-in-chief). The purpose was to
show that defendant did not confess because he had been caught, but because he
was truly remorseful.2
A. Jury Selection Issues
Defendant contends the court erred in excluding for cause five prospective
jurors because of their views on the death penalty, in violation of his state and
federal constitutional rights. 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. (People v.
Mayfield (1997) 14 Cal.4th 668, 727.) “On appeal, we will uphold the trial court’s
The prosecution presented evidence in rebuttal that after his arrest, and
even before he confessed, defendant was a suspect in all of these crimes.
ruling if it is fairly supported by the record, accepting as binding the trial court’s
determination as to the prospective juror’s true state of mind when the prospective
juror has made statements that are conflicting or ambiguous.” (Ibid.)
We have reviewed the record as to each of the five prospective jurors and
find no basis on which to overturn the trial court’s rulings. All gave conflicting
and sometimes ambiguous statements, but all also made statements supporting the
court’s findings that their views would at least substantially impair the
performance of their duties. The first twice answered in the affirmative when the
court asked whether her views would prevent or substantially impair her ability as
a juror. The second time, she stated, “I guess I would have to say it would prevent
or somehow impair . . . on the knowledge I have right now.” The second
answered in the affirmative when the district attorney asked whether the
knowledge that the case might require a decision on the death penalty would
“substantially impair [her] ability to act as a juror in this case.” She later told the
court that her views “could” interfere with her ability to perform her duty as a
juror. The third said, “I always thought I couldn’t [return a death verdict], so
probably when it came right down to saying that, I probably couldn’t.” When the
court asked whether she would automatically vote against the death penalty, she
answered, “Yeah, I think so.” The fourth stated, “No,” when asked whether she
could “ever possibly choose the death penalty.” The fifth said he would
automatically return a verdict of life without the possibility of parole. When the
court asked whether his feelings would substantially impair his ability to follow
the law, he responded, “I’m afraid it would.”
Defendant cites other statements by these prospective jurors that would
have supported keeping them as jurors. The question before us as a reviewing
court, however, is whether the evidence supports the actual rulings, not whether it
would have supported different rulings. Here the record supports the trial court’s
findings that these prospective jurors’ views would substantially impair the
performance of their duties.
Defendant also contends the district attorney committed misconduct during
jury selection. In questioning one of the prospective jurors that the court later
excused for cause, the prosecutor asked: “You can walk by Tiffany’s and you can
look in the window and you can meaningfully consider this $15,000 stone and that
gold Rolex watch; right? And you can think, well, I’d rather have this one with
the rubies in it or that with the stones in it or this beautiful diamond ring. But
there is a difference between considering and choosing. Could you ever possibly
choose the death penalty?” Defendant contends the question “undermined the
seriousness of the imposition of the death penalty.” The contention fails for
several reasons. First, defendant did not object, thus making the claim not
cognizable on appeal. (People v. Medina (1995) 11 Cal.4th 694, 740.) Second,
the question merely illustrated the difference between considering and actually
choosing; it did not suggest that the penalty decision was no more important than
selecting jewelry. The prospective juror responded that she could never choose
the death penalty, so she continued to take the penalty decision seriously despite
the question. Finally, because the prospective juror did not become an actual
juror, defendant suffered no prejudice. This final point also disposes of another of
defendant’s arguments—that a comment the prosecutor made (over objection) to
this prospective juror improperly impugned the integrity of defense counsel. The
comment was innocuous but, in any event, no actual juror ever heard it.
Defendant also complains of questions the district attorney asked to
determine whether the prospective jurors could actually impose the death penalty
if they found it appropriate. Defendant objected to one early question.3 The court
The prosecutor asked: “[I]f I could prove to you beyond a reasonable doubt
and to a moral certainty that he’s guilty of murder, first degree murder with special
permitted the questions as long as they were conditional, that is, if they contained
“the proper ‘if’s,’ ” and did not simply ask the prospective jurors to return a death
verdict. Accordingly, the prosecutor asked similar questions repeatedly during
jury selection. Defendant contends the questions improperly asked the jurors “to
commit to return a verdict of death before they heard any of the evidence.” We
disagree. It would be improper to try to commit the jurors to vote in any particular
way. These questions, however, did not do so. They merely sought assurance that
the jurors would properly perform their duty and return a death verdict if the
prosecution proved capital charges beyond a reasonable doubt and they believed
the death penalty was appropriate. The questions were proper. (People v. Riel
(2000) 22 Cal.4th 1153, 1178; People v. Fierro (1991) 1 Cal.4th 173, 209.)
Defendant also contends the questions were inflammatory. He argues,
“Asking a prospective juror if he or she could return a death sentence and then
pointing to appellant Smith invited the juror to decide the case based upon
emotion and not upon fact.” We disagree. The prosecutor’s specific reference to
defendant “was an acceptable means of impressing upon each prospective juror
that the verdict of death would affect a real person who would be in the courtroom
at that time, and sought to elicit whether, under these circumstances, the
prospective juror nevertheless would be able to vote for death.” (People v.
Samayoa (1997) 15 Cal.4th 795, 853.)4
circumstances, and based upon the second phase of this trial, the penalty phase,
that you thought the death penalty was appropriate, could you then take that
system and say, ‘Yes, that man, Gregory Smith, he deserves the death penalty,’
and vote accordingly; could you do that?”
Defendant also objected as inflammatory to a question whether the
prospective juror could “kill that man sitting right there.” The court sustained the
objection, and the prosecutor rephrased it to refer to returning “a death verdict
against that man sitting right there.” Because the court sustained the objection,
and this particular prospective juror was excused for cause, defendant suffered no
B. Denial of Defendant’s Motions for New Counsel
Three times during trial, defendant expressed concerns outside the presence
of the district attorney about the representation he was receiving from his attorney,
David Johnson. On the latter two occasions, he asked the court to appoint new
counsel to represent him. The court denied both requests. Defendant argues the
denials violated his state and federal constitutional rights to counsel.
When a defendant seeks new counsel on the basis that his appointed
counsel is providing inadequate representation—i.e., makes what is commonly
called a Marsden motion (People v. Marsden (1970) 2 Cal.3d 118)—the trial court
must permit the defendant to explain the basis of his contention and to relate
specific instances of inadequate performance. A defendant is entitled to relief if
the record clearly shows that the appointed counsel is not providing adequate
representation or that defendant and counsel have become embroiled in such an
irreconcilable conflict that ineffective representation is likely to result.
Substitution of counsel lies within the court’s discretion. The court does not abuse
its discretion in denying the motion unless the defendant has shown that a failure
to replace counsel would substantially impair the defendant’s right to assistance of
counsel. (People v. Hart (1999) 20 Cal.4th 546, 603.)
Defendant first complained about his attorney on the second day of the
prosecution’s guilt phase case-in-chief. He complained about what he considered
inadequate cross-examination of prosecution witnesses, but he also said he did not
“really want to fire my attorney, because there’s no personal conflict.” The court
told defendant that he had the right to request new counsel and explained what
showing he would have to make. It also expressed concern that substitution at that
time would “impact the normal, orderly process of the trial that we are now
undertaking.” The court made no ruling because defendant made no motion, but it
made clear that defendant could later move for new counsel if he wished.
Defendant’s first actual Marsden motion, in which he did seek new
counsel, occurred after the jury had reached its guilt verdict and before the penalty
phase began. Defendant stated a number of specific complaints about his
attorney’s representation, and the court allowed the attorney to respond.
Defendant also stated, “I think our relationship has broken down.” He had no
“trust” or “confidence” in counsel and complained that counsel did not follow his
advice. The court asked the attorney to ponder whether the relationship had
broken down such that he could no longer provide proper representation, but
otherwise it found no basis on which to discharge counsel. It explained to
defendant that his objections “boil down to differences of opinion as to tactics . . .
which are the sole responsibility of” counsel. Defense counsel then stated that,
based on what defendant had said, he “can’t disagree” that the “relationship [has]
broken down to the extent that I can no longer competently represent [defendant].”
He asked for more time to consult with other attorneys to decide what he should
do in this situation and how much information he should give the court. The court
continued the hearing to the next day.
The next day, defense counsel merely submitted the matter without further
comment. The court then denied the motion for new counsel in a detailed ruling.
It discussed defendant’s specific complaints and found them insufficient because
tactical decisions are within the “sole prerogative of counsel, and [do] not in any
way constitute grounds for dismissal on the basis of incompetency.” It found that
counsel “was not only entirely competent, but [he] gave [defendant] an excellent
representation presented in an understandable way, the only defenses which would
be reasonably accepted to the jury. The evidence against the defendant was
overwhelming, the record is free of prejudicial error.” It also found “that the
apparent breakdown of the relationship” was not “controlling,” because defendant
“could not have reasonably expected, based upon the law and the facts of this
matter, defense counsel to have done anything other than what was done to this
stage of the proceedings.”
Defendant made his second motion for new counsel after the presentation
of evidence at the penalty phase and before jury arguments. The court permitted
defendant to state further reasons why he believed counsel was providing
inadequate representation. The court stated it needed no response from counsel as
to all but one complaint because it had had the opportunity to observe counsel in
court. It asked counsel to respond to defendant’s complaint that he had failed to
call certain “character witnesses.” Counsel stated it was his judgment that these
witnesses would have been insufficiently beneficial to call them, and that in his
professional opinion, he presented the best case in mitigation that the
circumstances allowed. The court denied the motion.
We find no abuse of discretion. Defendant asserts he “was denied the
opportunity to develop a record sufficient for this court to review the error in light
of all of the evidence.” On the contrary, the court gave defendant full opportunity
to air all of his complaints, and counsel to respond to them. Defendant’s specific
complaints merely showed a disagreement as to tactics, not deficient performance.
Disagreement concerning tactics, by itself, is insufficient to compel discharge of
counsel. (People v. Hart, supra, 20 Cal.4th at p. 604.)
Defendant cites his claim that his relationship with counsel had “broken
down” and counsel’s statement that he could not disagree that the “relationship
[has] broken down to the extent that I can no longer competently represent
[defendant].” However, counsel’s statement was based on what defendant had
told the court and does not itself compel the court to grant new counsel. A
defendant may not effectively veto an appointment of counsel by claiming a lack
of trust in, or inability to get along with, the appointed attorney. (People v.
Berryman (1993) 6 Cal.4th 1048, 1070.) Moreover, the trial court need not
conclude that an irreconcilable conflict exists if the defendant has not tried to
work out any disagreements with counsel and has not given counsel a fair
opportunity to demonstrate trustworthiness. (People v. Barnett (1998) 17 Cal.4th
1044, 1086.) Defendant did not show that defense counsel did anything to cause
any breakdown in their relationship. “[A] defendant may not force the substitution
of counsel by his own conduct that manufactures a conflict.” (People v. Smith
(1993) 6 Cal.4th 684, 696.)
“The denial of a motion to substitute counsel implicates the defendant’s
Sixth Amendment right to counsel . . . .” (Bland v. California Dept. of
Corrections (9th Cir. 1994) 20 F.3d 1469, 1475, overruled on other grounds in
Schell v. Witek (9th Cir. 2000) 218 F.3d 1017, 1024-1025 (en banc); see People v.
Hart, supra, 20 Cal.4th at p. 603.) On direct review of the refusal to substitute
counsel, the Ninth Circuit Court of Appeals considers “the following three factors:
‘(1) timeliness of the motion; (2) adequacy of the court’s inquiry into the
defendant’s complaint; and (3) whether the conflict between the defendant and his
attorney was so great that it resulted in a total lack of communication preventing
an adequate defense.’ ” (Bland v. California Dept. of Corrections, supra, at p.
1475; see Schell v. Witek, supra, at pp. 1024-1025.) It found, and we agree, that
these elements are consistent with California law under People v. Marsden, supra,
2 Cal.4th 118, and its progeny. (Bland v. California Dept. of Corrections, supra,
at pp. 1475-1476.)5
The overruling of Bland v. California Dept. of Corrections, supra, 20 F.3d
1469, involved the nature of federal court habeas corpus review of state court
rulings, a matter not implicated in our direct review of the issue here. (Schell v.
Witek, supra, 218 F.3d at pp. 1024-1025.) Because we find these three elements
consistent with California law, we need not consider whether the Sixth
Amendment to the United States Constitution requires them. (Compare Bland v.
California Dept. of Corrections, supra, at pp. 1475-1476, with Schell v. Witek,
supra, at pp. 1024-1025.)
These factors demonstrate the court acted within its discretion. First,
defendant’s efforts to replace counsel came during trial. To grant the motion
“would have required either a significant delay or a mistrial.” (Hudson v. Rushen
(9th Cir. 1982) 686 F.2d 826, 831.) “It is within the trial court’s discretion to deny
a motion to substitute made on the eve of trial where substitution would require a
continuance.” (Bland v. California Dept. of Corrections, supra, 20 F.3d at p.
1476.) This is even more true if the motion is made during trial. In this case, it is
hard to imagine the trial court could have found new counsel who could have
prepared for the capital penalty phase quickly enough to proceed with the same
jury. Granting defendant’s motion would no doubt have necessitated not just a
continuance but a mistrial, which would have required selecting a whole new jury.
A court may not automatically deny a motion for new counsel during trial no
matter what the showing, but it should grant such a motion only when the
defendant demonstrates that counsel is truly providing inadequate representation
or that a total breakdown in the relationship has occurred that the defendant did
Second, as we have seen, the court conducted a full inquiry into defendant’s
complaints. It allowed defendant to express himself fully. Its inquiry was “as
comprehensive as the circumstances reasonably would permit.” (Hudson v.
Rushen, supra, 686 F.2d at p. 831.) “The court invited defendant to make a
statement, listened to defendant’s reasons for desiring new counsel, and found
them to be without merit.” (Ibid.)
Finally, defendant did not make such a compelling showing of a conflict
between himself and counsel that the court had to grant the motion. In Hudson,
after the trial court denied a motion for new counsel, the defendant refused to
cooperate with counsel or participate further in the trial and simply remained in his
holding cell. (Hudson v. Rushen, supra, 686 F.2d at p. 829.) Nevertheless, the
reviewing court found no abuse of discretion. “The reason for this complete
breakdown was the voluntary conduct of defendant, not any failure by the trial
court to adequately inquire into the reasons for the conflict.” (Id. at p. 831.) “In
sum, the record is clear that the trial court provided defendant with repeated
opportunities to voice his concerns, and upon considering those concerns
reasonably found them to be insufficient to warrant relieving trial counsel. We
therefore find no basis for concluding that the trial court either failed to conduct a
proper Marsden inquiry or abused its discretion in declining to substitute counsel.”
(People v. Hart, supra, 20 Cal.4th at p. 604.)
C. Guilt Phase Issues
1. Admitting Preliminary Hearing Testimony of a Witness
Defendant contends the trial court erred in admitting the preliminary
hearing testimony of Mitsuhiro Fukumoto, Toyoshima’s boyfriend who had been
on the bus with her and defendant, in violation of his state and federal
constitutional rights to confront and cross-examine witnesses.
The prosecution and defense had arranged to take Fukumoto’s preliminary
hearing testimony on April 16, 1990, about two months before the rest of the
preliminary hearing, so that he could testify before he left the country. He testified
that he was a foreign exchange student from Tokyo, Japan, and expected to be in
the United States until his graduation from high school in June 1991. The attorney
who represented defendant at the time cross-examined Fukumoto at length. At
trial in February 1992, the district attorney sought to have Fukumoto’s preliminary
hearing testimony read to the jury because he was unavailable within the meaning
of Evidence Code section 240.
The district attorney represented that he had received a telephone call from
Fukumoto’s host parent in San Diego saying that Fukumoto had left the country.
The court accepted the district attorney’s representation as an officer of the court
without requiring him to testify formally. The district attorney also offered to call
a witness to show that Fukumoto was no longer in the country, partly “to support
the fact that the prosecution made a good faith effort to secure the attendance of
this witness.” He called Grant Cunningham, an investigator for the district
attorney’s office. Cunningham testified that about six days previously, in an
attempt to locate Fukumoto, he had called what the district attorney’s records
indicated was Fukumoto’s telephone number in Japan. He asked to speak to
Mitsuhiro Fukumoto. A male voice answered, “Yes, this is me.” When defendant
objected that the testimony was hearsay, the court admitted it to show what the
investigator did, but not for the truth of the matter asserted. The district attorney
argued that a “good faith effort” relates to the “information that this witness had
available to him,” and thus the testimony had a nonhearsay purpose. On
questioning by the court, Cunningham testified that he felt he was unable to
compel Fukumoto’s presence in court because he was in Japan.
After the hearing, the court found that Fukumoto was unavailable as a
witness within the meaning of Evidence Code section 240. Fukumoto’s
preliminary hearing testimony was then read to the jury.
A defendant has a constitutional right to confront witnesses, but this right is
not absolute. If a witness is unavailable at trial and has testified at a previous
judicial proceeding against the same defendant and was subject to cross-
examination by that defendant, the previous testimony may be admitted at trial.
(Barber v. Page (1968) 390 U.S. 719; People v. Enriquez (1977) 19 Cal.3d 221,
235, disapproved on other grounds in People v. Cromer (2001) 24 Cal.4th 889,
901, fn. 3; Evid. Code, § 1291.) The constitutional right to confront witnesses
mandates that, before a witness can be found unavailable, the prosecution must
“have made a good-faith effort to obtain his presence at trial.” (Barber v. Page,
supra, at p. 725, quoted in People v. Enriquez, supra, at p. 235; see also Ohio v.
Roberts (1980) 448 U.S. 56, 74.) The California Evidence Code contains a similar
requirement. As relevant, it provides that to establish unavailability, the proponent
of the evidence, here the prosecution, must establish that the witness is absent
from the hearing and either that “the court is unable to compel his or her
attendance by its process” (Evid. Code, § 240, subd. (a)(4)) or that the proponent
“has exercised reasonable diligence but has been unable to procure his or her
attendance by the court’s process” (Evid. Code, § 240, subd. (a)(5)). The
constitutional and statutory requirements are “in harmony.” (People v. Enriquez,
supra, at p. 235.) The proponent of the evidence has the burden of showing by
competent evidence that the witness is unavailable. (People v. Price (1991) 1
Cal.4th 324, 424.)
Defendant does not dispute that if Fukumoto were in Japan, he would have
been unavailable. But defendant argues the prosecution showed that he was in
Japan only by hearsay, which is not competent evidence. The Attorney General
responds that defendant did not object on hearsay grounds to the district attorney’s
representation that Fukumoto’s host parent had told him that Fukumoto had left
the country. We disagree. Defendant objected on hearsay grounds repeatedly
throughout the hearing. It was clear he was objecting to all hearsay. The court
admitted the hearsay evidence merely to show what the prosecution did, but not
for the truth of the matter asserted.
The Attorney General also argues that Fukumoto’s preliminary hearing
testimony that he intended to leave the county in June 1991 was admissible as a
statement of intent to do a future act under Evidence Code section 1250. (See
Assem. Com. on Judiciary com., 29B pt. 4 West’s Ann. Evid. Code (1995 ed.)
foll. § 1250, p. 280 [“[A] statement of the declarant’s intent to do certain acts is
admissible to prove that he did those acts”]; People v. Alcalde (1944) 24 Cal.2d
177, 185-188.) We need not decide whether the testimony was admissible for that
purpose or was sufficient to sustain a finding that he was, in fact, out of the
country at the time of trial. This is because the prosecution did not have to prove
Fukumoto was actually out of the country. It only had to prove that it had
exercised reasonable or due diligence (the terms are interchangeable; People v.
Cromer, supra, 24 Cal.4th at p. 898) or, as stated in the equivalent federal
constitutional language, had made a good-faith effort, to obtain the witness’s
presence at trial.
As relevant, Evidence Code section 240 provides two closely related but
slightly different ways in which a person may be shown to be unavailable. In this
case, the prosecution could either show that Fukumoto was absent “and the court
is unable to compel his . . . attendance by its process,” i.e., that he was in Japan, or
that he was absent and it “has exercised reasonable diligence but has been unable
to procure his . . . attendance by the court’s process.” (Evid. Code, § 240, subd.
(a)(4), (5).) As this case demonstrates, trying to prove a person is, in fact, outside
the country can raise substantial practical difficulties because of the hearsay rule.
But the due diligence requirement is different. That requirement focuses on what
the proponent of the evidence, here the prosecution, did, that is, whether it made
reasonable efforts to obtain the witness. The statements by the host parent and the
male voice at the end of the line at the Japanese telephone number were admissible
on this question, not to prove the truth of the matter asserted, but to show what
efforts the prosecution made to ascertain Fukumoto’s whereabouts. At trial, the
prosecution and court treated these two portions of Evidence Code section 240
somewhat interchangeably. In its ruling, the court referred to both provisions,
although its ultimate finding was that Fukumoto “is a resident of the country of
Japan and therefore is not subject to the process of this court to compel his
attendance.” The court did not specifically find the prosecution had exercised due
diligence to try to procure Fukumoto’s attendance.
When, as here, the facts are undisputed, a reviewing court decides the
question of due diligence independently, not deferentially. (People v. Cromer,
supra, 24 Cal.4th at pp. 900-901.) In this case, reviewing the record
independently, we conclude the prosecution satisfied its burden of showing due
diligence. The prosecution obtained three important pieces of information: (1)
Fukumoto testified at the preliminary hearing that he was a Japanese national and
intended to leave the country several months before the trial occurred, (2)
Fukumoto’s host parent told the district attorney that Fukumoto had left the
country, and (3) the district attorney’s investigator had called the telephone
number in Japan that the records showed was Fukumoto’s number and heard a
voice at the other end say he was Fukumoto. This information may have been
legally incompetent, due to the hearsay rule, to show that Fukumoto was actually
in Japan. But it sufficed to show that the prosecution made reasonable efforts to
locate him and that further efforts to procure his attendance would be futile. The
prosecution must take reasonable steps to locate an absent witness, but need not do
“a futile act.” (Ohio v. Roberts, supra, 448 U.S. at p. 74.) The prosecution did
locate Fukumoto, but in Japan, outside the court’s jurisdiction. In the functioning
world outside the courtroom, people often rely on hearsay and, under the
circumstances of this case, the prosecution reasonably did so. The prosecution
met its burden of showing due diligence, and the court properly found Fukumoto
was unavailable as a witness.6
Defendant also argues that the court erred in admitting the preliminary
hearing testimony because of the differences between a preliminary hearing and a
Defendant has never argued that, and hence we do not decide whether,
assuming Fukumoto was in Japan, the prosecution was required to do more to
procure his attendance, such as request that he come voluntarily to testify. (Cf.
People v. Sandoval (2001) 87 Cal.App.4th 1425, 1440-1441.)
trial. To admit prior testimony of an unavailable witness, the party against whom
it is offered, here the defendant, must not only have had the opportunity to cross-
examine the witness at the previous hearing, he must also have had “an interest
and motive similar to that which he has at the [subsequent] hearing.” (Evid. Code,
§ 1291, subd. (a)(2); see People v. Zapien (1993) 4 Cal.4th 929, 974-975.)
Defendant argues that a defendant has less incentive to cross-examine at the
preliminary hearing than at trial. However, we have routinely allowed admission
of the preliminary hearing testimony of an unavailable witness. (E.g., People v.
Zapien, supra, at p. 975.) Here, defendant had even greater incentive to cross-
examine Fukumoto at the preliminary hearing than is normally the case. The
whole point of the early testimony was to allow Fukumoto to testify before he left
the country. At that time, defendant knew the witness would likely be unavailable
at trial, and the prosecution would seek to use the preliminary hearing testimony.
Defendant finally argues that defense counsel failed to ask certain questions
while cross-examining Fukumoto. This argument can always be made, as one can
always think of additional questions. However, it is the opportunity and motive to
cross-examine that matters, not the actual cross-examination. “As long as
defendant was given the opportunity for effective cross-examination, the statutory
requirements were satisfied; the admissibility of this evidence did not depend on
whether defendant availed himself fully of that opportunity.” (People v. Zapien,
supra, 4 Cal.4th at p. 975.) Accordingly, we find no error in admitting
Fukumoto’s preliminary hearing testimony.
2. Other Evidentiary Issues
a. Evidence of the victim’s medical treatment
Over defense objection, the court permitted the doctor who treated
Toyoshima at the hospital to testify about her condition and the treatment she
received before she died. Defendant contends the evidence was irrelevant and,
even if relevant, was unduly prejudicial. The district attorney offered the
testimony, in conjunction with the autopsy evidence, to show “that she died as a
result of a combination of several different factors.” The court found the evidence
relevant and that its probative value outweighed its prejudicial effect.
A determination of relevance and undue prejudice lies within the discretion
of the trial court, and a reviewing court reviews that determination for abuse of
discretion. (People v. Rowland (1992) 4 Cal.4th 238, 264.) We find no abuse of
discretion. The evidence was not of great significance, but it had some relevance.
Evidence of the efforts to save Toyoshima’s life helped the jury to understand how
and why she died. For example, the doctor testified that hypothermia and bleeding
over time were significant factors in her death, which meant that the delay in
giving her care greatly lessened her chances of survival. That evidence was, in
turn, relevant to help the jury to evaluate the significance of defendant’s delay in
calling her host parent. The evidence did not have great probative value, but we
also see little prejudicial effect. Defendant claims the testimony was
“sensational,” but it was not. It was merely a factual recitation, unaccompanied by
photographs or other visual images, of her condition and the efforts to save her.
The jury would certainly expect the doctor to make extensive efforts to save her,
as he did. We see nothing that would inflame the jury.
Moreover, any error would have been harmless. Defendant admitted
kidnapping and raping Toyoshima and shooting her during the rape. Because
defendant was the actual killer, intent to kill was not an element of the felony-
murder special circumstances. (People v. Anderson (1987) 43 Cal.3d 1104, 1147.)
Thus, defendant essentially confessed to her first degree felony murder and the
kidnapping and rape special circumstances. The only truly contested issue
regarding the charges involving Toyoshima was whether he sodomized her. The
jury acquitted him of sodomy and found not true the related sodomy special
circumstance. This shows the jury considered the evidence dispassionately in
reaching its verdict. The challenged evidence would clearly have been admissible
at the penalty phase even if not at the guilt phase (People v. Hovey (1988) 44
Cal.3d 543, 576), thus obviating any possible prejudice at that phase.
b. Evidence that defendant owned a derringer and ammunition
Over defense objection, the court admitted evidence that the police found in
defendant’s house a derringer and ammunition that fit neither the murder weapon
nor the derringer. Defendant contends the court erred under People v. Riser
(1956) 47 Cal.2d 566 because the evidence established that neither the derringer
nor the ammunition was used in the killing. In Riser, we held that “[w]hen the
prosecution relies . . . on a specific type of weapon, it is error to admit evidence
that other weapons were found in his possession, for such evidence tends to show,
not that he committed the crime, but only that he is the sort of person who carries
deadly weapons.” (Id. at p. 577.) The Attorney General responds, first, that
defendant did not separately object to the ammunition. We disagree. Reasonably
viewed, defendant’s objection extended to both items. The major discussion at
trial involved the derringer, but when the court admitted that evidence, admission
of the ammunition was a logical consequence. When the court said the
ammunition would come in as well as the derringer, defendant did not renew his
objection, but the court no doubt understood the original objection extended to
On the merits, we find no error. This evidence did not merely show that
defendant was the sort of person who carries deadly weapons, but it was relevant
to his state of mind when he shot Toyoshima. In his confession and opening
statement to the jury, defendant claimed the shooting was an accident and he did
not intend to kill her.7 In his later testimony, he said he took the gun to intimidate
but not to shoot, and he chose the murder weapon because it was small and easy to
conceal. Evidence that he possessed another small, easily concealed but unloaded
gun and no ammunition that fit it, and that he chose instead to take a loaded gun,
was relevant to defendant’s credibility on this point. An unloaded gun fully serves
to intimidate; a loaded gun is necessary only to actually shoot. Thus, although the
ammunition and derringer were not used in the killing, “[t]heir circumstantial
relevancy . . . seems clear,” and they were, accordingly, properly admitted.
(People v. Lane (1961) 56 Cal.2d 773, 785; see also People v. Neely (1993) 6
Cal.4th 877, 896.)
c. Cross-examination of defendant
Defendant contends that the trial court erroneously permitted the district
attorney to cross-examine him in certain respects. “When a defendant voluntarily
testifies, the district attorney may fully amplify his testimony by inquiring into the
facts and circumstances surrounding his assertions, or by introducing evidence
through cross-examination which explains or refutes his statements or the
inferences which may necessarily be drawn from them.” (People v. Cooper
(1991) 53 Cal.3d 771, 822.) Under this standard, we find no error.
Although intent to kill was not an element of any of the charges, because
defendant always denied such intent, it made sense for the defense to raise the
issue even at the guilt phase. Placing defendant in as good a light as possible
could only help the defense when the jury considered the various charges.
Moreover, given the confession and the rest of the evidence, conviction of capital
charges was highly likely, if not a foregone conclusion, even if the exact
convictions were uncertain. For this reason, the defense could reasonably have
wanted to use the guilt phase to start presenting its case in mitigation. (See People
v. Kelly (1992) 1 Cal.4th 495, 520-523 [counsel may reasonably consider the trial
as a whole in deciding what tactics to employ at a particular phase].) Presence or
absence of intent to kill was obviously relevant to the penalty determination.
Defendant first complains that the district attorney questioned him about
two rapes that postdated the charged crimes. On direct examination, defendant
testified that he had freely confessed to ease his conscience, to be stopped from
doing “something crazy again,” and to let the truth be known. Whether he
confessed solely for these noble reasons, or because he had been caught and was
trying to make the best out of a bad situation, was relevant to the motivation
behind, and hence to the credibility of, the confession and defendant’s subsequent
testimony. The credibility of defendant’s confession and testimony was, in turn,
relevant to a number of issues at trial. Although defendant essentially confessed to
some of the charges, he did not confess to every element of every charge. He
denied sodomizing Toyoshima. He denied intending to deprive the car owner of
the car permanently, which, if believed, would negate guilt of the attempted
robbery charge. (See People v. Guerra (1985) 40 Cal.3d 377, 385-386.) He
implicitly denied entering the Gritters’ home with the intent to commit false
imprisonment or any other crime, which, if believed, would negate guilt of the
burglary charge. (People v. Frye (1998) 18 Cal.4th 894, 954.) He also claimed he
did not intend to kill Toyoshima; accordingly, although intent to kill was not
legally required for any of the charges, the prosecution was also entitled to
challenge this assertion.
For these reasons, the district attorney properly cross-examined defendant
on his motivation to confess. At one point, he sought permission to ask questions
about whether defendant had confessed only after he had committed two recent
rapes and had already been arrested. He argued that these questions were relevant
to show that defendant was merely “trying to put things in the best light, and that’s
the reason that he made this self-serving statement, that confession that states that
this was an accidental killing.” The court ruled that the district attorney could go
into a “very limited area of the reasons that he was arrested.” It did not permit
questions about the earlier crimes, but it allowed questions about “the
circumstances of why he was a suspect and brought in on these charges [so] as to
refute his claim that he would have volunteered this confession in absence of any
other actions pending against him.” The district attorney then elicited the
testimony that defendant did not confess until after he had committed two
additional assaults, one on a 14-year-old girl and one on a 15-year-old girl (i.e., the
assaults of August 13 and 14, 1989). Defendant still insisted that he did not
confess merely because he knew he had been caught. The district attorney did not
elicit details of the assaults or mention any of the earlier crimes.
This limited cross-examination was permissible in light of defendant’s
testimony on direct examination. Evidence that defendant did not confess until he
had been arrested for two more assaults and was a suspect in this case was
probative on why and under what circumstances he confessed, and thus to the
credibility of that confession.
Defendant next complains that the district attorney questioned him about
the attention he had been giving to a “young, small, Asian woman” reporter who
had occasionally been in the courtroom. Defendant admitted that he liked “Asian
women” but denied that he had paid special attention to this person. Defendant
contends this questioning was irrelevant and should not have been permitted.
However, he failed to object to the questions, thus making the issue not cognizable
on appeal. (People v. Cooper, supra, 53 Cal.3d at p. 822.) After this questioning,
defendant objected to another line of questions, which the court sustained. In
arguing the point outside the presence of the jury, defense counsel argued that the
questions to which he objected had no bearing on the case, “anymore so than
asking him about the Japanese reporter [obviously referring to the same person].”
But counsel never objected to the earlier questions or asked that anything be
stricken. In any event, the questioning was surely harmless. Defendant denied
paying particular attention to this reporter and, as the trial court noted, “the
incident regarding the Japanese reporter, I presume is something the jury could
Defendant also complains of questioning about his sexual relationship with
his wife. Defendant testified on cross-examination that he raped “for the sexual
satisfaction, not for the power trip.” The district attorney asked, if that were the
case, why did he not just go home to his wife. Defendant responded that
sometimes she “was on her period” and sometimes they were fighting. He denied
that he sometimes raped a woman so he could then go home and have sex with his
wife. When the district attorney asked about an inconsistent statement he had
made to a police officer, defendant objected and moved for a mistrial. The court
denied a mistrial. Noting that on direct examination defendant had “virtually
described himself as a serial rapist,” it permitted questions regarding defendant’s
motive for rape while prohibiting questions about specific uncharged crimes.
Defendant admitted that earlier he had stated, “what’s weird is my wife was right
here and she’s willing to make love to me any time, and sometimes I didn’t want
to make love to her until I made love to another lady.”
These limited questions regarding defendant’s motive for rape were also
permissible. The prosecution did not elicit details about other crimes or even
suggest they were numerous. On direct examination, defendant had made clear
that sometimes his “evil” side had prevailed, and he had raped on other occasions.
Accordingly, we see no error and no prejudice. Defendant contends the
questioning was impermissibly prejudicial at the penalty phase. We disagree.
Defendant’s motivation for raping Toyoshima was clearly relevant to the penalty
determination as a circumstance of the crime. (§ 190.3, factor (a).)8
Defendant also summarily asserts that he “was not provided with notice
that these matters would be used against him as required by state law and the
3. Alleged Prosecutorial Misconduct
Defendant contends the prosecutor committed misconduct while cross-
examining him. The district attorney questioned him extensively about the
relative positions he and Toyoshima had occupied when he shot her. He also
asked how defendant’s testimony could be reconciled with the evidence regarding
the bullet’s trajectory. Defendant admitted he could not explain it and said “this
thing happened fast.” During this questioning, the prosecutor also asked if she had
been kneeling in front of him and had bitten him, and whether he had been forcing
her to orally copulate him, eliciting denials in each instance. Later, defendant
moved for a mistrial, contending that these latter questions were improper. In
response, the prosecutor argued that the physical evidence did not support
defendant’s version of what had happened but did make it “entirely plausible that
she was shot kneeling before somebody.” Therefore, he asked defendant “about
the possibility of the oral copulation.” The court denied a mistrial, finding the
questions not improper because “it’s an issue for the jury to determine.”
The court did not abuse its discretion in denying a mistrial. (People v. Silva
(2001) 25 Cal.4th 345, 372.) “Prosecutors have wide latitude to discuss and draw
conclusions from the evidence at trial. [Citation.] Whether the inferences the
prosecutor draws are reasonable is for the jury to decide.” (People v. Dennis
(1998) 17 Cal.4th 468, 522; see also People v. Bolton (1979) 23 Cal.3d 208, 212.)
Here, the prosecutor simply drew an inference from the evidence and asked
defendant about it. As defendant argues, it is misconduct for the prosecutor to
state facts not in evidence or to imply the existence of evidence known to the
federal constitution . . . .” We need not consider such a perfunctory assertion
unaccompanied by supporting argument. (People v. Ashmus (1991) 54 Cal.3d
932, 985, fn. 15.) In any event, the prosecution does not have to provide advance
notice of how it will cross-examine the defendant.
prosecutor but not to the jury. (People v. Bolton, supra, at pp. 212-213.) The
prosecutor, however, did not do so. It was clear to the jury that the questions were
based solely on the evidence it had heard. As the trial court correctly noted, it was
up to the jury to determine the reasonableness of the inferences. The record
contains no evidence that the prosecutor asked the questions in bad faith.
Accordingly, we see no misconduct. Additionally, we see no prejudice under any
standard. Defendant argues that the jury deliberated “in an unfairly emotionally
charged environment created by the prosecutor’s baseless oral copulation
questions.” On the contrary, as noted, the jury reviewed the evidence
dispassionately, as shown by its acquittal of the sodomy charge.
4. Instructional Issue
The trial court gave the standard jury instruction on weighing
circumstantial evidence including, in part, that if “one interpretation of such
evidence appears to you to be reasonable, and the other interpretation to be
unreasonable, you must accept the reasonable interpretation and reject the
unreasonable.” (See CALJIC No. 2.01.) Defendant argues that the instruction
impermissibly lowered the reasonable doubt standard of proof and created an
impermissible mandatory presumption of guilt. We have repeatedly rejected these
arguments and continue to do so. (People v. Seaton (2001) 26 Cal.4th 598, 667-
668; People v. Ray (1996) 13 Cal.4th 313, 347-348.)
D. Penalty Phase Issues
1. Late Notice of Aggravating Evidence and Denial of a Continuance
Defendant contends the court prejudicially erred in permitting the
prosecution to file a late notice of aggravating evidence and denying him a
continuance to prepare for the newly noticed evidence. The record does not
support the contention.
The original notice of aggravating evidence, which the prosecutor filed long
before trial, provided notice of all but one of the aggravating incidents later
presented at trial. On March 9, 1992 (all further specific dates in this subpart are
to the year 1992), at the end of the prosecution guilt phase case-in-chief, the
district attorney filed an amended notice of aggravating evidence, adding six new
incidents of alleged criminal conduct, all involving incidents in jail in 1990 and
1991. Ultimately, only one of these new incidents was actually presented at trial,
the one in which defendant threw a chair at Barbara Fargo, his attorney at the time.
On March 18, after the guilt verdict, the court held a hearing on the admissibility
of this evidence. The district attorney stated that he did not learn of these other
incidents until the week of February 24, when he subpoenaed jail records. He also
stated, and defense counsel did not disagree, that he then promptly notified
defense counsel of the incidents and provided photocopies of the reports. Defense
counsel asked the court to refuse to admit the evidence or at least grant a three-
week continuance to investigate the new incidents. Concerned about maintaining
the “integrity of this jury” after such a long continuance, the court wondered if so
much time was needed given the ready availability of potential witnesses. It
agreed with the district attorney’s observation that Fargo—a member of the public
defender’s office—was “right next door.” It also noted that the court and parties
would have five days off before the penalty phase began. Accordingly, it denied a
continuance without prejudice to a further showing of need.
Defendant then moved for a hearing on whether substantial evidence
supported admission of the alleged new crimes. (See People v. Phillips (1985) 41
Cal.3d 29, 72, fn. 25.) The court agreed to conduct the hearing, and scheduled it to
begin the next Monday, five days later. When defense counsel stated he would not
be ready to proceed by then, the court noted that he had five days in which to
prepare, and that all the potential witnesses “are virtually within, probably a five
hundred yard radius of where we sit.” Defense counsel responded that there might
be other witnesses. The court said that if it turned out that defendant needed
additional time it would consider the matter again. Accordingly, it denied a
further continuance, again without prejudice.
The next hearing in open court was not actually held until Thursday, March
26, eight days later. (The hearing on defendant’s first Marsden motion intervened,
ending on March 19.) Defense counsel again asked for a continuance, explaining
that his investigator had been able to interview only one potential witness. The
court stated that it might yet refuse to admit evidence due to defendant’s inability
to investigate, but it wanted to rule on specific items of evidence. It noted that the
prosecution would not actually present the evidence to the jury for a week or two,
and that “these witnesses are county employees virtually under our thumb.” It
ordered the prosecution to present its evidence outside the presence of the jury. A
hearing then ensued, with the district attorney presenting witnesses and defense
counsel cross-examining them. Among the witnesses was Officer John Tanner,
who testified about the Fargo incident and was cross-examined by defense
counsel. The court also ordered Tanner and other witnesses to be available to the
defense the next day. Later, it noted that, if it wished, the defense could subpoena
Fargo, who was readily available. Ultimately, the court excluded four of the six
newly noticed incidents due to insufficient evidence and permitted evidence of the
other two incidents. However, the prosecution actually presented evidence only of
the incident involving Fargo.
Officer Tanner testified about the Fargo incident in front of the jury on
Wednesday, April 1. After that day, the court recessed until Monday, April 6. On
that day, defendant called Fargo as a witness, to also testify about the incident.
Section 190.3 provides that, with exceptions not relevant here, “no
evidence may be presented by the prosecution in aggravation unless notice of the
evidence to be introduced has been given to the defendant within a reasonable
period of time as determined by the court, prior to trial.” The purpose of this
provision “is to advise an accused of the evidence against him so that he may have
a reasonable opportunity to prepare a defense at the penalty trial.” (People v.
Miranda (1987) 44 Cal.3d 57, 96.) “[W]here the prosecution learns of evidence it
intends to use in aggravation at the penalty phase for the first time after trial has
commenced, exclusion of this evidence under section 190.3 is not necessarily
compelled. [Citation.] Under such circumstances, the defendant is entitled to
prompt notice of the newly discovered evidence, and, if necessary, to a reasonable
continuance to enable him or her to prepare to meet that evidence. If the
prosecutor’s delay in affording notice is unreasonable or unexcused, or if the delay
would prejudice the defense, the court must exclude the evidence.” (People v.
Mitcham (1992) 1 Cal.4th 1027, 1070.)
Under these standards, we see no error. Only one of the newly noticed
incidents was actually presented to the jury. The district attorney did not learn of
that incident until late February. When he did learn of it, he promptly gave oral
notice to defense counsel and provided photocopies of the reports. Defendant
complains that the district attorney did not file the formal written notice until
March 9, but section 190.3 requires notice, not written notice. Although written
notice is obviously preferable, the prompt oral notice was sufficient, especially
when augmented by the later written notice. (People v. Miranda, supra, 44 Cal.3d
at p. 97.)
Moreover, defendant had ample opportunity to meet the evidence. All
possible witnesses were readily available to the parties. Officer Tanner did not
actually testify in front of the jury until April 1, over a month after defendant
learned of the incident and over three weeks after the formal written notice.
Defendant had a preliminary opportunity to cross-examine the officer at the
hearing outside the jury’s presence, and the court ordered the officer to make
himself further available to the defense. Thus, defendant had full opportunity to
prepare to cross-examine the only prosecution witness. Then came five days
without judicial proceedings before the defense presented its case, in which time it
had further opportunity to investigate. When the defense did present its case, it
not only had had an opportunity to interview Fargo, it actually presented her as a
Defendant argues the prosecution could have discovered the evidence
sooner by subpoenaing the jail records sooner. This is no doubt correct, but in the
absence of prejudice to defendant, the notice, given promptly after the prosecution
actually learned of the incident, was adequate. Defendant also argues that another
officer had viewed the incident, and he might have presented him as a witness had
he received the three-week continuance he originally requested. However,
defendant effectively received continuances during the periods of time when court
was not in session. Moreover, the court denied the requested continuances each
time without prejudice. It made clear that it would seriously consider giving
defendant even more time on a specific showing of need. Defendant never
showed, or even specifically claimed, that yet more time was necessary to
investigate this incident, or to interview the second officer or any other witness.
(People v. Mitcham, supra, 1 Cal.4th at p. 1070.)
Finally, defendant argues that the late notice deprived him “of the ability to
take key evidence into account during jury selection in the guilt phase of the trial,”
and to “question the jurors regarding these subjects during the voir dire process.”
The purpose behind the notice requirement, however, is to permit the defendant to
prepare a defense at the penalty trial, not to question prospective jurors about
every bit of evidence they might hear. Defendant’s argument would mean that no
evidence discovered after the beginning of trial would ever be admissible, which is
not the law. Moreover, the original notice of aggravating evidence, filed long
before trial, did provide notice of one act of violence in jail, so defendant knew
that jail violence was a potential issue at trial. We see no error in the trial court’s
permitting the prosecution to prove the Fargo incident despite the late notice.
2. Issues Involving Evidence from One of the Rape Victims
Before the beginning of the penalty phase, defense counsel, citing Payne,
sought and obtained from the court a protective order prohibiting the prosecution
from asking victim witnesses what the appropriate punishment should be. (See
Payne v. Tennessee (1991) 501 U.S. 808, 830, fn. 2.) Later the district attorney
informed the court that one of the rape victims, Mary G., the victim of the
December 8, 1988, incident, was opposed to the death penalty. He requested a
ruling that, like the prosecution, the defense could not ask Mary G. what
punishment she thought defendant should receive. Defense counsel urged that she
be allowed to testify “what impact this has on her.” The court ruled that impact
evidence was admissible, but her opinion on penalty was not.
Later still, the district attorney informed the court that Mary G. refused to
testify, and a hearing was held as to her availability as a witness. Mary G. was
present and represented by an attorney, who explained her rights and obligations
to her. Through counsel, she stated she would not testify unless she could express
her views on the punishment defendant should receive. Defense counsel argued
she should be allowed to present a “victim impact statement,” because the
“information that she wants to provide to this Court is the information as to how
this incident affected her. The fact that she also has feelings for or against the
death penalty are part of her feelings, and they should be allowed to come before
the court because that’s what she’s going to explain.” The court reiterated that
Mary G. could testify about the impact the crime had on her, but not about what
punishment defendant should receive.
The court questioned Mary G. personally under oath. She said, “I cannot in
good conscience testify,” and that potential sanctions, including sanctions for
criminal contempt under section 166, would not cause her to testify. Neither more
time nor anything the court said or did would cause her to change her mind.
Defense counsel was permitted to question her but chose not to do so. The court
then found her unavailable as a witness. Defense counsel objected to introducing
her preliminary hearing testimony, arguing that the defense purpose in cross-
examining the witness at the preliminary hearing differed from that at the penalty
phase. The court ruled that the “testimony is simply like any other testimony
that’s limited, and this testimony will be limited to the acts alleged to have
occurred or been perpetrated by the defendant; and that if the witness refuses to
testify . . . regarding victim impact, which she has the ability to testify within the
rules of the court, that is an issue which we will address if she were so to testify.
But she’s indicated she refuses to testify, so that issue is not before me.”
The transcript of Mary G’s preliminary hearing testimony was then read to
Defendant contends the court committed two distinct errors. He first argues
the court erred in not permitting Mary G. to testify about what punishment she
believed he should receive. He argues the limitation violated the federal
constitutional rule that the “ ‘ “sentencer . . . not be precluded from considering, as
a mitigating factor, any aspect of a defendant’s character or record and any of the
circumstances of the offense that the defendant proffers as a basis for a sentence
less than death.” ’ ” (Skipper v. South Carolina (1986) 476 U.S. 1, 4.) He also
argues the testimony was admissible under section 190.3, factor (k), which
requires the trier of fact to consider “[a]ny other circumstance which extenuates
the gravity of the crime even though it is not a legal excuse for the crime.” The
court’s ruling was correct. Although victim impact testimony is admissible, the
victim’s view as to the proper punishment is not.
It is clear that the prosecution may not elicit the views of a victim or
victim’s family as to the proper punishment. (Booth v. Maryland (1987) 482 U.S.
496, 508-509.) The high court overruled Booth in part, but it left intact its holding
that “the admission of a victim’s family members’ characterizations and opinions
about the crime, the defendant, and the appropriate sentence violates the Eighth
Amendment.” (Payne v. Tennessee, supra, 501 U.S. at p. 830, fn. 2.) That court
has never suggested that the defendant must be permitted to do what the
prosecution may not do. The views of a crime victim, especially, as here, of the
victim of one of the noncapital crimes, regarding the proper punishment has no
bearing on the defendant’s character or record or any circumstance of the offense.
(Skipper v. South Carolina, supra, 476 U.S. at p. 4.) Hence, the Eighth
Amendment to the United States Constitution does not compel admission of those
views. (Robison v. Maynard (10th Cir. 1991) 943 F.2d 1216, 1216-1217 [even
after Payne v. Tennessee, supra, 501 U.S. 808, “testimony from a victim’s relative
that she did not want the jury to impose the death penalty was improper mitigating
evidence and inadmissible at the penalty phase hearing”].)
Citing section 190.3 and the United States Constitution, we have held that
testimony from somebody “with whom defendant assertedly had a significant
relationship, that defendant deserves to live, is proper mitigating evidence as
‘indirect evidence of the defendant’s character.’ ” (People v. Ervin (2000) 22
Cal.4th 48, 102; see also People v. Mickle (1991) 54 Cal.3d 140, 194; People v.
Heishman (1988) 45 Cal.3d 147, 194.) This evidence is admitted, not because the
person’s opinion is itself significant, but because it provides insights into the
defendant’s character. (People v. Ochoa (1998) 19 Cal.4th 353, 456.) The only
relationship Mary G. had with defendant was as his rape victim. The trial court
made clear it would permit Mary G. to provide relevant mitigating evidence, but
defendant made no offer to prove that her experience as his victim caused her to
provide testimony—direct or indirect—about his good character. (Evid. Code,
§ 354.) Defendant sought to prove that Mary G. did not want defendant to receive
the death penalty, and perhaps also that she held this opinion even though she was
one of his victims. This latter point may have demonstrated the strength of her
views, but no more. Neither defendant nor Mary G. suggested that her opinion
was based on defendant’s character, or, indeed, on anything involving defendant
personally, rather than her general views on the death penalty. Her personal views
on the death penalty, however, were no more relevant to this proceeding than the
personal views of defendant’s many other victims. The court properly precluded
Mary G. from expressing her view on the correct punishment while permitting her
to provide any mitigating evidence she may have had to give.9
Defendant also argues that, for two reasons, the court erred in admitting
Mary G.’s preliminary hearing testimony. As we have explained (pp. 19, 23,
ante), a witness’s previous testimony against a criminal defendant may be
admitted at trial if the witness is unavailable, and the defendant had the
opportunity at the previous hearing to cross-examine the witness with an interest
and motive similar to that at trial. Defendant contends the court erred both in
finding that Mary G. was unavailable and that his interests and motives in cross-
examining her were similar on both occasions. Again, we disagree.
Defendant notes that in People v. Kraft (2000) 23 Cal.4th 978, 1072, the
trial court permitted, without apparent objection, a witness to testify that he did not
believe the defendant should receive the death penalty. It appears that testimony
was based, at least in part, on the defendant’s personal character. (Ibid.) More
importantly, the fact that evidence is admitted in one trial, perhaps out of caution,
does not mean it must be admitted in another trial. “[A] ruling by a different court
in a different trial has no bearing on the correctness of the rulings in this trial.”
(People v. Carpenter (1997) 15 Cal.4th 312, 408.)
The circumstance that Mary G. was physically present in the courtroom and
merely refused to testify does not preclude a finding of unavailability. Evidence
Code section 240, which defines when a witness is unavailable, does not
specifically describe this situation, but that statute does not “state the exclusive or
exact circumstances under which a witness may be deemed legally unavailable for
purposes of Evidence Code section 1291.” (People v. Reed (1996) 13 Cal.4th 217,
228.) Courts have admitted “former testimony of a witness who is physically
available but who refuses to testify (without making a claim of privilege) if the
court makes a finding of unavailability only after taking reasonable steps to induce
the witness to testify unless it is obvious that such steps would be unavailing.”
(People v. Sul (1981) 122 Cal.App.3d 355, 364-365 (plur. opn.), citing Mason v.
United States (10th Cir. 1969) 408 F.2d 903; accord, People v. Francis (1988) 200
Cal.App.3d 579, 584; People v. Walker (1983) 145 Cal.App.3d 886, 894.)
The court’s efforts to induce Mary G. to testify were reasonable under the
unusual circumstances of this case. The court questioned her under oath and asked
whether additional time or prosecution for criminal contempt would change her
mind. It had no power to incarcerate this victim of a sexual assault for refusing to
testify concerning that assault. (Code Civ. Proc., § 1219, subd. (b).) But
defendant argues the court should at least have fined her for contempt of court.
We disagree. Trial courts “do not have to take extreme actions before making a
finding of unavailability.” (People v. Sul, supra, 122 Cal.App.3d at p. 369 (conc.
opn. of Zenovich, J.).) Defendant did not ask the court to take stronger action
against her, which was understandable. Because Mary G. was clearly trying to
help defendant in refusing to testify against him, he could reasonably not have
actually wanted to force her to testify by threat of contempt charges. Under the
circumstances, the court did not actually have to fine Mary G.
While we find no error in these unusual circumstances, we add that
witnesses have no right to make demands of the court like those Mary G. made,
and no right to act as a 13th juror. Witnesses under subpoena and present in court
have a duty to testify in accordance with the rules of evidence, a duty trial courts
have the power to enforce. Witnesses may not condition their testimony on being
allowed to state their personal, irrelevant, opinions.
Defendant finally argues that his motive and interest in cross-examining
Mary G. at the preliminary hearing were different from those at the penalty phase
because the sole question at the preliminary hearing was his guilt of the assault on
Mary G., but at the penalty phase the question was the proper punishment for his
crimes. Hence, he argues, at the preliminary hearing he had no interest in eliciting
mitigating evidence, his sole interest at the penalty phase. However, the
prosecution offered the testimony at the penalty phase only to prove defendant’s
guilt of criminal activity involving force or violence under section 190.3, factor
(b). Defendant had full opportunity, interest, and motive to cross-examine the
witness on this point at the preliminary hearing. He made no apparent attempt to
call Mary G. as his own witness at the penalty phase. The record presents no
reason to suppose she would have refused to testify on defendant’s behalf if
defendant had wanted to call her. Defendant’s motive and interest in cross-
examining Mary G. regarding his guilt of the crimes against her warranted the
court’s admission of her preliminary hearing testimony.
Any error in admitting the preliminary hearing testimony was also
harmless. We doubt that defendant would have benefited from the jury’s seeing
and hearing Mary G.’s live testimony rather than merely hearing the transcript of
her earlier testimony. Moreover, the prosecution presented evidence of 14
separate criminal incidents on 13 different dates, not counting the crimes proven at
the guilt phase and the jail incidents. The crimes against Mary G., although
serious, did not particularly stand out in this long criminal history. She was, for
example, an adult and not one of defendant’s numerous juvenile victims. The
crimes against Mary G. were less serious than the near-fatal stabbing of Cynthia
B. The penalty decision in this case did not turn on whether defendant had
engaged in 13 rather than 14 other violent criminal episodes.
3. Admission of Other Prosecution Evidence
One of the other crimes the prosecution proved was that defendant stabbed
Cynthia B. in the abdomen on April 14, 1989, and that her injury required surgery.
As part of the proof, the prosecution offered a single photograph of her scarred
abdomen, which showed both the original stab wound and the surgical incision.
Over objection, the court admitted the photograph, finding it “not unduly
gruesome,” and that its probative value outweighed its prejudicial effect. The
victim testified as to which portion of the scar was due to the stab wound and
which portion to the surgery. Defendant contends the court erred in admitting the
photograph. We disagree. The evidence was relevant to show precisely what
defendant did to this victim, which was relevant to the penalty determination.
(People v. Wader (1993) 5 Cal.4th 610, 655.) Although witnesses orally described
the wound, a photograph is also admissible to illustrate that testimony. (People v.
Scheid (1997) 16 Cal.4th 1, 15.) The victim’s “testimony enabled the jury to
evaluate to what extent the photograph in question reflected the trauma of the
assault rather than the effects of the surgery.” (People v. Wader, supra, at p. 656.)
Moreover, the surgery and its effects were part of the injury defendant inflicted,
albeit indirectly. We see no abuse of discretion in admitting the photograph. (Id.
at p. 655.)
Over objection, the court permitted four of defendant’s victims to testify
about racial remarks defendant made to them while he committed the crimes.
Defendant contends the court erred because the remarks were irrelevant to the
penalty determination, were unduly prejudicial, and were constitutionally
protected speech. We disagree. Although the remarks themselves were not
criminal, “they occurred in the course of” violent criminal behavior, “and they
were thus admissible under [section 190.3,] factor (b) to demonstrate the
aggravated nature of defendant’s unlawful conduct.” (People v. Montiel (1993) 5
Cal.4th 877, 916-917.) Specifically, racial epithets from a defendant’s own mouth
are admissible to show the facts surrounding the crimes. (People v. Quartermain
(1997) 16 Cal.4th 600, 627-631; People v. Scott (1997) 15 Cal.4th 1188, 1219;
People v. McPeters (1992) 2 Cal.4th 1148, 1189.) Contrary to defendant’s
contention, based on Dawson v. Delaware (1992) 503 U.S. 159, admission of the
evidence, relevant to actual criminal conduct, does not violate his constitutional
free speech rights. (People v. Quartermain, supra, at pp. 629, 631.) Finally,
because the remarks were properly admitted, the prosecutor properly mentioned
them in his opening statement and closing argument. (People v. Scott, supra, at p.
4. Exclusion of Defense Evidence
a. Expert testimony regarding remorse
Over prosecution objection, defendant sought to present opinion testimony
of Dr. Douglas Harper, a psychiatrist, regarding defendant’s statements of remorse
in his tape-recorded confession of August 16, 1989. The court held a hearing
outside the jury’s presence regarding the admissibility of this evidence. Dr.
Harper testified that he was not asked to diagnose defendant or determine whether
any mental defense might exist, but only to investigate the question of remorse.
To do so, he interviewed defendant twice, read a transcript of the confession, and
listened to the recorded confession. Defendant offered Dr. Harper solely to give
an opinion regarding whether he expressed remorse in that confession. His
opinion was that defendant “was experiencing remorse, and had the capacity to do
so at that time.” He based his opinion on the “typed transcript of his statement,
my interview, my experience in listening to the tapes.”
The court excluded the evidence. It noted that remorse is relevant to the
issues at trial. But, under the facts, it found the question was not the proper
subject of expert testimony. It concluded that it was for the jury, not an expert, to
determine “the sincerity or lack thereof” of any expressions of remorse. Defense
counsel asked the court at least to admit the tape recording of the confession itself,
so the jury could hear it and draw its own conclusion. Over prosecution objection,
the court exercised its discretion to admit the recording. In response to the
prosecutor’s argument that admitting the tape would deprive him of the right to
cross-examine defendant (see People v. Edwards (1991) 54 Cal.3d 787, 838), the
court noted that defendant had testified at the guilt phase—at which he expressed
remorse—and “the jury has had an opportunity to observe the defendant in that
Defendant contends the court erred in excluding Dr. Harper’s testimony.
We disagree. Certainly, the presence of remorse is relevant at the penalty phase,
as the court realized. (People v. Marshall (1996) 13 Cal.4th 799, 855.) But the
court acted within its discretion in permitting the jury to listen to the tape and
judge for itself defendant’s expressions of remorse, while excluding expert
opinion that the remorse was sincere. Expert opinion testimony must be “[r]elated
to a subject that is sufficiently beyond common experience that the opinion of an
expert would assist the trier of fact . . . .” (Evid. Code, § 801, subd. (a).) We
review the trial court’s ruling in this regard for abuse of discretion. (People v.
Sanders (1995) 11 Cal.4th 475, 508.)
Defendant cites cases in which expert testimony on remorse was in fact
admitted. (E.g., People v. Hart, supra, 20 Cal.4th at pp. 629-630; People v. Davis
(1995) 10 Cal.4th 463, 499, 529.) As we have noted, the fact that evidence is
admitted in one trial does not mean it must be admitted in another. (See fn. 9,
ante.) The circumstances in which evidence is offered and its exact nature, and
the exercise of the trial court’s discretion, can vary from case to case.
Nevertheless, we do not doubt that sometimes the question of remorse is properly
the subject of expert testimony. In People v. Edwards, supra, 54 Cal.3d at pages
818-821, 837-838, we said the trial court could prohibit the defendant from
presenting his own taped statement because the statement was hearsay and not
sufficiently trustworthy to come within an exception to the hearsay rule. One
reason not to permit such hearsay was that doing so would deprive the prosecution
of the opportunity to cross-examine the defendant. (Id. at pp. 820, 838.) We
noted that “the defense could . . . have presented expert testimony which could
have used these materials as a basis for an expert opinion,” although none was
offered in that case. (Id. at p. 838.) Here, the court excluded the expert testimony
but admitted the taped statement itself. Doing so was within its discretion.
Defendant did not seek to have Dr. Harper testify about expressions of
remorse to Dr. Harper himself or as part of a larger diagnosis of defendant’s
mental state. Rather, he offered Dr. Harper solely to express an opinion regarding
the weight the jury should give the expressions of remorse made during the taped
statement. Essentially, defendant offered Dr. Harper as an expert on defendant’s
credibility in making that statement. However, the jury was as able as an expert to
judge that question for itself. Credibility questions are generally not the subject of
expert testimony, or at least a court could so conclude in a given case. (People v.
Anderson (2001) 25 Cal.4th 543, 576 [“the psychiatrist may not be in any better
position to evaluate credibility than the juror”]; People v. Sergill (1982) 138
Cal.App.3d 34, 39 [trial court abused its discretion in admitting expert opinion that
a prosecution witness was credible].) Here, the court permitted the jury to hear the
taped statement for itself. Moreover, unlike the expert, the jury had observed
defendant testify and express remorse at the guilt phase, where he was cross-
examined, and it heard evidence regarding the circumstances of the taped
statement. Thus, it could fully judge the credibility of defendant’s expressions of
remorse without hearing from Dr. Harper.
b. Defendant’s statements to his wife
On August 16, 1989, the day defendant first confessed to these crimes, he
also spoke to his wife twice, once on the telephone and once in person at the jail.
Both conversations were tape-recorded. At the guilt phase, defendant testified
briefly about these conversations. He said he did not “want her to panic,” so he
“tried to soothe her, tell her I was in trouble and prepare for something serious.”
Defendant knew the police were listening, but he was not told the conversations
would be recorded. At the penalty phase, his wife also testified about these
conversations. She said defendant told her “he had done something really bad,”
and he “was sorry because he messed up my life.” He said “it was an accident,”
that he was “very sorry,” that he “prayed to God” and was “clean with God now,”
and he expressed concern for her and the people he had hurt.
After his wife testified, defendant sought to admit the tape recordings of the
conversations under the “state of mind” exception to the hearsay rule (see Evid.
Code, § 1250), arguing that they showed remorse. The prosecutor objected that
the statements were hearsay and insufficiently reliable to be admissible. The court
excluded the statements. Citing Evidence Code section 1252, it “determined after
listening to the tapes and the circumstances that the primary purpose of the tapes
was to placate the defendant’s wife and the statements are ruled inadmissible on
the basis of their lack of trustworthiness . . . .” It found these conversations
different in this regard than the taped confession to the police, which it had “found
to be trustworthy for admission in these proceedings . . . .” When defendant
asserted the Eighth Amendment to the United States Constitution as a basis for
admitting the evidence, the court stated that “in view of the fact that the testimony
was available by virtue of the witnesses that were called and the other testimony
which has been received . . . the Court did balance and weigh that consideration
and take that into consideration in its ruling as well.”
Defendant contends the court erred in excluding the tape recordings of the
conversations with his wife because they showed remorse. The Attorney General
argues that defendant did not express remorse for the crimes but only said he was
sorry for his wife’s sake. Although defendant did primarily express concern for
his wife, portions of the conversations might be interpreted as showing remorse.
But, even if relevant, the recordings were properly excluded. Evidence offered
under the state of mind exception to the hearsay rule may is inadmissible “if the
statement was made under circumstances such as to indicate its lack of
trustworthiness.” (Evid. Code, § 1252; see People v. Edwards, supra, 54 Cal.3d at
pp. 819-820.) The United States Constitution compels the admission of hearsay
evidence only if the proponent shows the evidence is highly relevant to a critical
issue and is sufficiently reliable. (People v. Stanley (1995) 10 Cal.4th 764, 839;
People v. Edwards, supra, at pp. 837-838.) Here, the court reasonably found the
statements to his wife were untrustworthy because his primary motivation in
making them was to placate her. “There was ‘ample ground to suspect
defendant’s motives and sincerity’ when he made the statements.” (People v.
Edwards, supra, at p. 820, quoting People v. Whitt (1990) 51 Cal.3d 620, 643.)
“The same lack of reliability that makes the statements excludable under state law
makes them excludable under the federal Constitution.” (People v. Livaditis
(1992) 2 Cal.4th 759, 780.) Moreover, defendant had ample opportunity to
present evidence of remorse without the recordings. The court acted within its
discretion in admitting the taped confession and allowing the witnesses to testify
about the conversations between defendant and his wife while excluding the
recordings of those conversations themselves. (People v. Edwards, supra, at p.
Defendant also contends the conversations were admissible as prior
consistent statements under Evidence Code sections 791, 1236. The issue is not
cognizable on appeal because defendant did not present that theory of
admissibility at trial. (Evid. Code, § 354; People v. Alcala (1992) 4 Cal.4th 742,
795-796; People v. Livaditis, supra, 2 Cal.4th at pp. 778-780.) Moreover, even
were the issue preserved, defendant has not clearly shown a basis on which to
admit the evidence on this theory. A prior statement consistent with a witness’s
trial testimony is admissible only if either (1) a prior inconsistent statement was
admitted and the consistent statement predated the inconsistent statement, or (2) an
express or implied charge is made that the testimony is recently fabricated or
influenced by bias or other improper motive, and the consistent statement was
made before the bias, motive for fabrication, or other improper motive is alleged
to have arisen. (Evid. Code, § 791.) Here, defendant’s motive to fabricate and
make himself look as good as possible existed at the time of these conversations,
which occurred after his arrest. Defendant argues that evidence of statements he
made in jail in an argument with a nurse—“You better treat motherfuckers like me
with respect, I’m in for murder and killing again is nothing”; and “I’m going to
kill her. One more doesn’t make a difference”—was inconsistent both with his
trial testimony and the earlier conversations with his wife. The trial court never
had an opportunity to rule on this point because defendant did not raise it (see
People v. Livaditis, supra, at p. 780), but it is not clear that these words, spoken in
the heat of the moment in jail in expressing anger, were inconsistent with
defendant’s expressions of remorse for the crimes or his conversation with his
wife. As far as we can determine, the district attorney never argued the jail
statements were inconsistent with the statements of remorse. We see no error and
certainly no prejudice.
c. Testimony of defendant’s first attorney
Barbara Fargo, defendant’s first attorney, testified for the defense without
objection about the jail incident in which defendant threw a chair at her.
Additionally, defendant sought to have her testify on two other points: (1) that she
believed the death penalty was not appropriate in this case; and (2) that, with
defendant’s authorization, she sought to settle the case by a guilty plea in return
for a sentence of life in prison without the possibility of parole. He also sought to
admit a letter, dated July 5, 1990, Fargo wrote to the district attorney arguing
against the death penalty. The district attorney did not object to evidence that
defendant sought to settle the case by a guilty plea, and the court admitted it as
showing remorse on defendant’s part.10 However, he objected to the letter as
hearsay. After reading the letter, the court sustained the objection. In response to
defendant’s argument that the letter contained information the jury should consider
in making the penalty determination, the court stated that “the issues that you’re
addressing . . . are issues which are proper in terms of summation or other
evidence that can properly be introduced.”
The district attorney also objected to Fargo’s expressing her opinion
whether defendant should receive the death penalty. After reviewing our then-
recent decision of People v. Mickle, supra, 54 Cal.3d 140, and the earlier decision
of People v. Heishman, supra, 45 Cal.3d 147, the court admitted the evidence. It
also indicated it would permit the prosecutor to impeach the witness with cross-
Evidence that defendant sought to plead guilty in return for a life sentence
arguably shows primarily a desire to avoid the death penalty rather than remorse.
Because the court admitted the evidence, however, we need not decide whether it
was required to do so.
examination about other acts of violence, “assuming that that issue is opened by
examination of this witness.” It did not, however, permit the witness to state the
reasons for her opinion.
Fargo testified about the jail incident and explained that defendant felt
betrayed and became angry when she told him that she had to withdraw from the
case. She also testified that, with defendant’s agreement, she attempted to settle
the case for a disposition of life in prison without the possibility of parole, and that
she wrote a letter to the district attorney arguing that that was the appropriate
disposition. In her opinion, which she felt “very strongly,” defendant should
receive a sentence of life in prison without the possibility of parole. The court did
not permit her to state the reasons for this opinion. On cross-examination, the
prosecutor asked her about her knowledge of other rapes defendant had committed
and other jail incidents.
Defendant contends the court erred in refusing to permit Fargo to testify
about why she believed defendant should receive a life sentence.11 We disagree
and, indeed, doubt that her opinion regarding the proper disposition should have
been admitted at all. As we have discussed (p. 38, ante), testimony that defendant
deserves to live, provided by someone who had a significant relationship with him,
is admissible, not because that opinion is itself important but because the
testimony provides indirect evidence of the defendant’s character. (E.g., People v.
Defendant does not appear to argue the court erred in refusing to admit the
letter Fargo wrote to the district attorney arguing against the death penalty. The
ruling was clearly correct. The letter contained only inadmissible hearsay and an
advocate’s argument. As the trial court stated, defendant could present the
mitigating evidence at trial and make the arguments to the jury, which the defense
did. But a letter by his then-attorney arguing on his behalf is not, itself,
mitigating evidence. The way to try a penalty phase, as any trial, is to present
relevant evidence in accordance with the Evidence Code, and then make
appropriate arguments, not to admit as evidence a letter arguing the case.
Ervin, supra, 22 Cal.4th at p. 102.) It is questionable whether an attorney-client
relationship is the sort of relationship that can result in such indirect evidence of
the defendant’s character, but we need not decide the question, for the court
admitted the opinion. But defendant made no offer to prove that Fargo’s
reasoning provided any insight into defendant’s character. Indeed, defense
counsel expressly told the court that the proffered testimony “is not character
testimony,” but only Fargo’s opinion regarding the “appropriateness of the death
penalty . . . given the crime . . . .” The penalty decision, however, was for the jury
to make and is not the proper subject of expert testimony. (People v. Mickle,
supra, 54 Cal.3d at p. 196.) Defendant was entitled to present mitigating evidence
and to argue to the jury that a life sentence was appropriate, as he did. However,
the opinion of a witness, expert or otherwise, that a life sentence is appropriate is
not relevant except to the extent it might provide insight into the defendant’s
character. The court did not prevent Fargo from providing whatever testimony she
had to give about her personal experiences with and knowledge of defendant’s
character, but her opinion whether the crime warranted the death penalty, and,
important here, her supporting reasoning, were irrelevant.
Defendant also contends the rulings were erroneous given the prosecutor’s
cross-examination into her knowledge of other acts of misbehavior. Defendant
does not appear to argue directly that permitting this cross-examination was error.
He could not do so, for he did not object to it at trial. (People v. Riel, supra, 22
Cal.4th at p. 1185.) The cross-examination appears to have been appropriate
impeachment. (People v. Ramos (1997) 15 Cal.4th 1133, 1173.) Moreover, it
might have been permissible to rebut the implication in Fargo’s testimony that the
chair incident was an isolated act of anger caused by her withdrawal from the case.
Defendant argues that, in light of this impeachment, Fargo should have been
permitted to explain her reasons for believing a life verdict was nonetheless
proper. But he did not renew his request that Fargo be permitted to state her
reasoning after this cross-examination. Because he did not urge admission of her
reasons as rehabilitation of her opinion, he may not now argue on that basis that its
exclusion was error. (Evid. Code, § 354.)
Moreover, defendant suffered no prejudice from the court’s not allowing
Fargo to state the reasons for her opinion. Those reasons were essentially
arguments. They were not based on any information or perception that only Fargo
could give. Indeed, defense counsel made clear that her testimony was not
character evidence. But defense counsel could make those arguments to the jury
as well as she could. No reason appears for the jury to have given Fargo’s reasons
more weight than the same reasons argued by defense counsel. To the extent the
jury might have been impressed by Fargo’s belief that he should not receive the
death penalty despite being one of his victims, it heard that belief.
5. Alleged Prosecutorial Misconduct
Defendant contends the prosecutor committed various acts of misconduct at
the penalty phase. With one exception, he did not object to the alleged
misconduct. We have reviewed each of the claims as to which defendant did not
object and are satisfied an objection would have cured any harm. Accordingly,
those contentions are not cognizable on appeal. (People v. Riel, supra, 22 Cal.4th
at pp. 1196-1197.)
The one occasion on which defendant did object discloses no misconduct.
The prosecutor argued to the jury that one of the rape victims was lucky because
defendant had used a condom, and “she does not have to spend the rest of her life
worrying about who [defendant] has slept with” and “does not have to concern
herself of [sic] the nightmare that may become her life if she should contract
AIDS.” Defendant objected, and the court admonished the jury that statements of
counsel are not evidence. The prosecutor continued by arguing that the other rape
victims inevitably would think about AIDS. “And,” he said, “is that not yet part of
the circumstance of the crimes of violence perpetrated? [¶] . . . [T]he rapist who
perpetrates such conduct and clearly is indiscriminate in his contacts, also then
brings to his victims yet another . . . ultimate fear that they may come down with
something more as a result of this awful crime against them. And for someone to
do that, knows full well what they’re doing.” Defendant contends the prosecutor
improperly implied he was infected with the AIDS virus when no evidence
supported the implication. On the contrary, the prosecutor never suggested
defendant had AIDS, only that his rape victims would worry that he might. A rape
victim would not know one way or the other, at least until the rapist was caught.
The prosecutor properly discussed the uncertainty and mental anguish victims of
an unknown rapist would inevitably feel, and the heinousness of inflicting this
anguish. “The foreseeable effects of defendant’s prior violent sexual assaults upon
the victims—ongoing pain, depression, and fear—were thus admissible as
circumstances of the prior crimes bearing on defendant’s culpability.” (People v.
Mickle, supra, 54 Cal.3d at p. 187.)
Defendant’s remaining contentions would be meritless even if they were
cognizable. The prosecutor impeached two defense witnesses with prior felony
convictions. Defendant argues that in doing so, he violated the rule that such
impeachment does not extend to the facts underlying the convictions. (See People
v. Heckathorne (1988) 202 Cal.App.3d 458, 462.) We need not decide whether
this rule still applies (cf. People v. Wheeler (1992) 4 Cal.4th 284), for the district
attorney questioned the witnesses only about the convictions themselves, not the
underlying facts. The first witness admitted to some convictions but claimed not
to remember all of them. When the prosecutor asked about one conviction, the
witness said he remembered “plea bargaining” and explained that a plea bargain
“means that I wasn’t convicted in my eyes.” In light of this, the prosecutor
properly asked more questions about the plea bargain and what it meant. If a
witness seeks to mislead the jury or minimize the facts, further questioning is
proper. (People v. Shea (1995) 39 Cal.App.4th 1257, 1267.) As to the second
witness, the prosecutor elicited only the exact nature of the convictions, that is,
facts that “would appear on the face of the record of judgment,” which was proper.
(People v. McClellan (1969) 71 Cal.2d 793, 809.)
During his argument to the jury, the prosecutor referred to various emotions
he felt about the case, including anger, sorrow, bewilderment, horror, and outrage.
Defendant argues that these references to his own emotions were improper.
Unlike the guilt determination, where appeals to the jury’s passions are
inappropriate, in making the penalty decision, the jury must make a moral
assessment of all the relevant facts as they reflect on its decision. (People v.
Padilla (1995) 11 Cal.4th 891, 956-957; People v. Haskett (1982) 30 Cal.3d 841,
863.) Emotion must not reign over reason and, on objection, courts should guard
against prejudicially emotional argument. (People v. Haskett, supra, at p. 864.)
But emotion need not, indeed, cannot, be entirely excluded from the jury’s moral
assessment. We have reviewed the argument in context. The comments were
based entirely on the evidence. We see nothing so inflammatory as to be improper
The prosecutor noted to the jury that the court had admonished it not to
listen or watch media coverage of the case but, he said, “aside from that coverage
there has been the coverage relating to Robert Harris. [¶] . . . Let’s be clear about
this, none of this coverage has anything to do with your responsibility in this
case. . . . To decide this case for any reason other than based upon the evidence
now or guided by the instructions of this Court would require you to ignore your
responsibilities as jurors. [¶] Now, it is unfortunate that the media has chosen to
treat this subject in a sensational and not wholly objective manner, but none of that
should make a difference in this case. There is now, no—outside this courtroom,
no irate mob asking in an angry manner for the death of an innocent man. [¶] The
State only asks that you, in this case, be just, be fair. Decide this case based upon
the evidence that was presented here, not on the radio, not on the television. The
evidence that was channeled to you properly abiding by the rules of evidence, and
to view this evidence in light of the law.” We see nothing improper in this attempt
to prevent media coverage of another case from influencing the jury. Contrary to
defendant’s argument, the prosecutor did not “urge the jury to impose the death
penalty based on outrage at the actions of a notorious convicted inmate, rather than
reason.” The prosecutor did the opposite.
Defendant contends the prosecutor impermissibly impugned the integrity of
defense counsel. We have reviewed the comments he cites and see nothing
improper. The prosecutor did not attack defense counsel’s integrity but instead
attacked the defense case and argument. Doing so is proper and is, indeed, the
essence of advocacy. “[T]he prosecutor has wide latitude in describing the
deficiencies in opposing counsel’s tactics and factual account.” (People v. Bemore
(2000) 22 Cal.4th 809, 846.)
6. Instructional Issues
Defendant contends the court committed a number of errors in instructing
He first argues the court did not accurately inform the jury he would be
ineligible for parole if the jury returned a verdict of life. The court refused
defendant’s request to instruct that “Life without the possibility of parole means
exactly that and jurors are not to assume anything other than death means death by
execution in the gas chamber; life without the possibility of parole means
imprisonment for the rest of his natural life.” Instead, the court instructed the jury
at the outset that its choice of verdicts was “death or confinement in the state
prison for life without possibility of parole,” and, later, that the jury’s duty was “to
determine which of the two penalties, death or confinement in the state prison for
life without possibility of parole shall be imposed on the defendant.”
We see no error. The court’s actual instructions were precisely accurate;
the jury’s choice was indeed between death and life without the possibility of
parole. Defendant’s requested instruction would have been inaccurate because the
Governor has the power to commute a sentence. (People v. Jones (1997) 15
Cal.4th 119, 189-190; People v. Arias (1996) 13 Cal.4th 92, 172-173.) Defendant
cites United States Supreme Court decisions involving South Carolina law.
(Shafer v. South Carolina (2001) 532 U.S. 36; Simmons v. South Carolina (1994)
512 U.S. 154; see also Kelly v. South Carolina (2002) 534 U.S. 246.) These
decisions “are readily distinguishable, in that the juries in those cases were told
that the alternative to a death sentence was one of ‘life imprisonment’ without
instruction that a capital defendant given such a sentence would not be eligible for
parole.” (People v. Snow (2003) 30 Cal.4th 43, 123.) Here, by contrast, the jury
was informed that a life verdict is without the possibility of parole. Defendant
also contends the court’s refusal to give his requested instruction was exacerbated
because the court sustained an objection when defense counsel started to argue
that defendant would never have a parole hearing. Again, this argument would
have been inaccurate. In any event, both sides argued, without objection, that a
life verdict would mean defendant would die in prison. Indeed, the prosecutor
stated that “it should be obvious to you and to everyone in this courtroom that
[defendant], based upon your verdict, will die in prison. He either is going to die
of old age, or he’s going to die in the gas chamber.” The jury understood the
significance of its choices.
Defendant contends the court prejudicially misspoke in its oral instruction
defining “mitigating circumstance.” According to the reporter’s transcript, the
court told the jury “a mitigating circumstance is any fact, condition or event which
as such does on [sic: it obviously should have been “not”] constitute a justification
or excuse for the crime in question but may be considered as an extenuating
circumstance in determining the appropriateness of the death penalty.” Assuming
the mistake was the court’s rather than the court reporter’s, the jury could not have
been confused. It was also provided the instructions in written form, which
correctly use the word “not” rather than “on.” No reasonable juror would give the
instructions the nonsensical meaning that a mitigating circumstance “does on
constitute a justification or excuse,” rather than the obvious meaning stated in the
written form. (People v. Crittenden (1994) 9 Cal.4th 83, 138.) Moreover, the
important portion of this instruction for defendant was that a mitigating
circumstance is anything that “may be considered as an extenuating circumstance
in determining the appropriateness of the death penalty.” The misstatement did
not affect this portion.
In a related contention, defendant claims the court inadequately responded
to a jury question. As noted in the previous paragraph, the court gave the standard
concluding penalty phase instruction, including that a “mitigating circumstance” is
something that “may be considered as an extenuating circumstance in determining
the appropriateness of the death penalty.” (CALJIC No. 8.88.) During its
deliberations, the jury requested to have a “definition of: extenuating
circumstance.” Outside the presence of the jury, the court and parties discussed
how to respond. Defense counsel asked the court to “define extenuating
circumstance as mitigation” and to reread the definition in CALJIC No. 8.88 and
the instruction regarding section 190.3, factor (k). Instead, the court responded,
“The words are to be understood by their common meaning. Further reference
should be made to the jury instructions which you have been furnished.” We see
no error. Rereading the instructions, as defendant suggested, would have not
provided the jury with any information it did not already have. Instead, the court
gave the jury the helpful and correct response that the words have their common
meaning, not any technical meaning, and referred the jury to the written
instructions. This satisfied the court’s duty. (People v. Kirkpatrick (1994) 7
Cal.4th 988, 1017-1018; People v. Beardslee (1991) 53 Cal.3d 68, 97.) In People
v. Lucero (2000) 23 Cal.4th 692, the court responded to a similar jury request by
giving a dictionary definition of the term. We rejected the defendant’s argument
that doing so was itself error, but we did not suggest the court was required to give
this definition. (Id. at pp. 723-725.)
The court instructed the jury that evidence had been introduced to show that
defendant had committed “battery, false imprisonment, kidnapping, rape,
attempted sodomy or oral copulation, robbery, assault with a deadly weapon, and
false imprisonment, which involve the express or implied use of force or
violence,” and that a juror could not consider any crime unless that juror found
beyond a reasonable doubt that defendant had committed it. Defendant contends
the court erred by not also instructing the jury on the elements of these crimes.
However, defendant stated he did not request those instructions. The court has no
duty to instruct on the elements of other crimes absent a defense request, because
the defendant might not want lengthy instructions on those elements. (People v.
Weaver (2001) 26 Cal.4th 876, 987.) Here, defendant reasonably wanted the court
not to itemize the elements of all the other crimes he committed. There was no
doubt that those elements were generally present, so focusing on them could only
have harmed, not benefited, defendant.
Defendant contends the “court twice improperly instructed the jury to
consider ‘applicable’ mitigating evidence. The inclusion of the word ‘applicable’
improperly allowed the jury to disregard relevant mitigating evidence if the jury
felt the evidence was inapplicable.” We disagree. The court did not tell the jury
to consider applicable mitigating evidence, but to consider the applicable
“factors,” which it defined. Indeed, the court told the jury to “consider all of the
evidence.” (CALJIC No. 8.85.)
The court refused a defense requested instruction regarding aggravating
circumstances on the basis that other instructions covered it and it was confusing.
The court correctly refused to give the instruction. The standard instructions the
court gave adequately instructed the jury regarding aggravating circumstances.
The requested instruction would have erroneously told the jury it could not
consider “any fact” in aggravation unless it found it true beyond a reasonable
doubt. Except for other crimes, about which the court correctly instructed, the
penalty jury need not find any fact beyond a reasonable doubt before considering
it in aggravation. (People v. Crittenden, supra, 9 Cal.4th at p. 153.)
The court refused to instruct the jury that “[m]ercy is a permissible
response to defendant’s mitigating evidence,” and that it could consider “pity,
sympathy, or mercy for the defendant” in its penalty verdict. It did not thereby err,
especially given the actual instructions which told the jury to consider “any
sympathetic or other aspect of the defendant’s character or record that the
defendant offers . . . .” (People v. Lewis (2001) 26 Cal.4th 334, 393; People v.
Benson (1990) 52 Cal.3d 754, 808-809.)
The court also refused to give three defense-requested instructions
regarding the jury’s consideration of mitigating and aggravating factors, because
they were covered by other instructions and, in part, were argumentative. The
refusal was proper because the standard instructions the court gave fully explained
the applicable law. Defendant claims that excluding the instructions “led the jury
to believe that their sentencing responsibilities could be achieved by a mere
counting of the aggravating and mitigating factors.” Nothing in the actual
instructions, however, would have led the jury to so believe. Indeed, the court told
the jury that the “weighing of aggravating and mitigating circumstances does not
mean a mere mechanical counting of factors on each side of an imaginary
scale . . . .” (CALJIC No. 8.88.) In part, one of the requested instructions stated,
“One mitigating circumstance may outweigh several aggravating circumstances,
or one aggravating circumstance may outweigh several mitigating circumstances.”
We have said that telling the jury that any mitigating factor could outweigh all
aggravating factors without stating the reverse was argumentative. (People v.
Seaton, supra, 26 Cal.4th at p. 689; People v. Hines (1997) 15 Cal.4th 997, 1069.)
As defendant points out, his requested instruction was not argumentative in this
way. But the instruction was still unnecessary in light of the standard instructions
the court actually gave. Those instructions provided adequate guidance how to
consider the aggravating and mitigating factors.
The court refused defendant’s request to instruct the jury that the “absence
of premeditation and deliberation is a circumstance in mitigation.” Defendant
contends the refusal was error. We disagree. As defendant points out, the trial
court did give such an instruction in People v. Bonillas (1989) 48 Cal.3d 757, 792.
But we have never required it. (See People v. Lucero, supra, 23 Cal.4th at p. 730.)
The court correctly instructed the jury to consider “the circumstances of the
crime,” and to consider in mitigation “any other circumstance which extenuates
the gravity of the crime.” These instructions were adequate; reference to specific
circumstances was not necessary. Whether any particular circumstance of the
crime was aggravating or mitigating was for the parties to argue, not for the court
to instruct. (People v. Catlin (2001) 26 Cal.4th 81, 173-174.)
The court refused defendant’s request to instruct the jury to disregard his
and the victim’s racial backgrounds and to require the jurors to sign a certificate
stating that they had not considered race in their verdict. Stating that he is Black,
and pointing out that his murder victim was Japanese, he argues the court’s refusal
to so instruct was error. We disagree. The requested instruction was drawn from
a federal statute requiring that instruction and certificate in federal capital
prosecutions. (18 U.S.C. § 3593(f).) But the instruction is not constitutionally
required. Obviously, the jury may not consider the defendant’s or victim’s race in
deciding whether to impose the death penalty. (The jury was, however, entitled to
consider defendant’s own racial epithets as circumstances of the crimes; see p. 43,
ante.) But the court need not interject the issue of race itself and then tell the jury
to disregard it, at least absent some indication the jury might improperly consider
race. (See State v. Roseboro (N.C. 2000) 528 S.E.2d 1, 13.)
Contrary to defendant’s arguments, the court has no sua sponte duty to
instruct the jury not to draw adverse inferences from his failure to testify at the
penalty phase (People v. Holt (1997) 15 Cal.4th 619, 687); use of the word
“extreme” in instructing the jury on section 190.3, factor (d), was not error (People
v. Jenkins (2000) 22 Cal.4th 900, 1054-1055); and the court did not have to tell the
jury that factors in mitigation need not be found unanimously (People v. Breaux
(1991) 1 Cal.4th 281, 314-315).
E. Denial of Modification Motion
Defendant contends the court erred in denying his automatic motion to
modify the verdict. (§ 190.4.) “In ruling on the motion, the trial court must
independently reweigh the evidence of aggravating and mitigating factors
presented at trial and determine whether, in its independent judgment, the
evidence supports the death verdict. The court must state the reasons for its ruling
on the record.” (People v. Steele (2002) 27 Cal.4th 1230, 1267.) In this case, the
court’s preliminary remarks show it understood this duty precisely. The court also
stated detailed reasons for denying the motion.
Defendant argues the court erred in two ways. First, after thoroughly
analyzing the statutory factors and the evidence, the court stated “that the
defendant is unable to live in any society, even with a structured society of prison,
without being a substantial threat to the safety, lives of others who he comes in
contact with.” Defendant argues that this language shows “the court failed to base
its decision on whether the jury’s verdict was contrary to the law or evidence
presented.” On the contrary, the court’s discussion as a whole made clear it did
apply the correct test. Indeed, it expressly found that the jury’s verdict was
“certainly supported by the weight of the evidence presented.” The court’s finding
of future dangerousness was based solely on the evidence presented at trial and
was thus proper. (See People v. Ray, supra, 13 Cal.4th at p. 353 [prosecutor may
argue future dangerousness if based on the evidence].) Second, defendant
contends the court “improperly ignored facts in mitigation.” It did not do so. It
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. Doing
so was entirely proper. (People v. Steele, supra, 27 Cal.4th at pp. 1267-1268.)
The court was also entitled to make credibility determinations. (People v. Proctor
(1992) 4 Cal.4th 499, 555.)
“In short, the court carefully and conscientiously performed its duty under
section 190.4.” (People v. Steele, supra, 27 Cal.4th at p. 1268.)
F. Disproportionate Punishment
Defendant contends the death sentence is cruel or unusual and thus violates
California Constitution, article I, section 17. In deciding this question, a reviewing
court must examine the circumstances of the offense as well as the defendant’s
personal characteristics. The court must invalidate the sentence if it finds the
death penalty grossly disproportionate to the defendant’s individual culpability,
that is, if the punishment shocks the conscience and offends fundamental notions
of human dignity. (People v. Hines, supra, 15 Cal.4th at p. 1078.)
The sentence of death in this case is not cruel or unusual. Defendant
accosted a helpless, lone young woman, a guest in this country, shortly after she
got off a bus, forced her at gunpoint to a lonely spot, raped her, and shot her to
death. His stabbing of a woman in an apartment complex laundry room two
months earlier, also unprovoked and without warning, could easily have been
another murder. These crimes were but part of a long reign of terror, in which he
victimized young girls as well as adults, and preyed repeatedly on students at a
local high school.
Defendant argues that after he shot Ai Toyoshima he “exhibited
tremendous feelings of remorse,” said “he hoped she wouldn’t die,” called “her
residence to tell her host parents where to find her,” “suffer[ed] months of
depression, weight loss, sleep deprivation, thoughts of suicide,” and “constantly
prayed for her.” Before he killed her, he says, he was “under tremendous
pressure.” The telephone call to the host family and other factors defendant cites
were certainly mitigating circumstances for the jury to consider. But even if we
assume the best for defendant—that he meant only to rape this victim, as he had
raped others, and not to kill her—this assumption does not compel a life sentence.
Even if the jury, or we, were to take defendant’s protestations at face value and
conclude he was truly remorseful that he had fatally shot his young, terrified
victim, and that he had hoped she would survive his onslaught, the jury could also
reasonably conclude that this hope and this remorse were not enough. Sometimes
crimes are so heinous (and, here, so repeated) that saying one is sorry afterwards,
even sincerely, is simply not enough.
Defendant’s claim that his shooting was accidental rings exceedingly
hollow. He selected a loaded gun as his weapon. If, as he claimed, he used the
gun merely to gain power over his victim, rather than shoot her, he did not have to
load it. Defendant is fully responsible for his actions; his repeated, deliberate
criminal acts fully warrant the death sentence he faces today. The jury’s verdict
does not shock the conscience. The death sentence is not disproportionate to
defendant’s personal culpability.
G. Other Contentions
Defendant reiterates many contentions we have already rejected. The death
penalty law does not impermissibly allow the jury to triple-count the underlying
rape and kidnapping as bases for first degree murder, special circumstances, and
aggravating circumstances. (People v. Seaton, supra, 26 Cal.4th at pp. 690-691;
People v. Gates (1987) 43 Cal.3d 1168, 1188-1190.) California’s death penalty
law adequately narrows the class of death-eligible defendants. (People v.
Burgener (2003) 29 Cal.4th 833, 884 & fn. 7.) Section 190.3, factor (a), is not
impermissibly vague. (People v. Mendoza (2000) 24 Cal.4th 130, 192.) Failure to
require written findings, unanimity as to aggravating circumstances or findings
beyond a reasonable doubt (except for other crimes), to impose a penalty phase
burden of proof, or to conduct intercase proportionality or disparate sentence
review does not invalidate the death penalty. (People v. Carpenter, supra, 15
Cal.4th at pp. 417-418, 420-421; People v. Crittenden, supra, 9 Cal.4th at pp. 156-
157.) Introducing evidence of unadjudicated criminal activity at the penalty phase
is not unconstitutional. (People v. Hillhouse (2002) 27 Cal.4th 469, 507.) Use of
the word “extreme” in section 190.3, factors (d) and (g), and “substantial” in
section 190.3, factor (g), does not impermissibly restrict the jury’s consideration of
mitigating factors. (People v. Jenkins, supra, 22 Cal.4th at pp. 1054-1055.)
Defendant argues that a number of these conclusions are incorrect in light
of Ring v. Arizona (2002) 536 U.S. 584 and Apprendi v. New Jersey (2000) 530
U.S. 466. However, those cases do not affect California’s death penalty law.
(People v. Prieto (2003) 30 Cal.4th 226, 262-263, 271-272; People v. Snow,
supra, 30 Cal.4th at p.126, fn. 32.)
We affirm the judgment.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Smith
Original Appeal XXX
Opinion No. S028339
Date Filed: May 8, 2003
County: Santa Clara
Judge: John T. Ball
Attorneys for Appellant:
William M. Goodman, under appointment by the Supreme Court; Topel & Goodman, Ligi Coleen Yee and
Jeremy D. Blank for Defendant and Appellant.
Attorneys for Respondent:
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Ronald A. Bass,
Assistant Attorney General, Dane R. Gillette and Lisa H. Ashley Ott, Deputy Attorneys General, for
Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
William M. Goodman
Topel & Goodman
832 Sansome Street, Fourth Floor
San Francisco, CA 94111
Lisa H. Ashley Ott
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
|1||The People (Respondent)|
Represented by Attorney General - San Francisco Office
Lisa H. Ashley Ott, deputy
455 Golden Gate Avenue, Suite 11000
San Francisco, CA
|2||Smith, Gregory Calvin (Appellant)|
San Quentin State Prison
Represented by William M. Goodman
Topel & Goodman
832 Sansome St., Fourth Floor
San Francisco, CA
|May 8 2003||Opinion: Affirmed|
|Aug 14 1992||Judgment of death|
|Aug 21 1992||Filed certified copy of Judgment of Death Rendered|
|Sep 3 1992||Application for Extension of Time filed|
By Court Reporter Julie Magee to Complete R.T.
|Sep 4 1992||Extension of Time application Granted|
To Court Reporter To 11-2-92 To Complete R.T.
|Sep 9 1992||Application for Extension of Time filed|
By Court Reporter Margaret Mc Vey to Complete R.T.
|Sep 10 1992||Extension of Time application Granted|
To Court Reporter Margaret Mc Vey To Complete R.T.
|Jan 3 1996||Counsel appointment order filed|
Upon request of appellant for appointment of counsel, William M. Goodman, Esq., is hereby appointed to represent appellant on his automatic appeal, including any related habeas proceedings.
|Jan 25 1996||Application for Extension of Time filed|
By Applt to request correction of the Record.
|Jan 30 1996||Extension of Time application Granted|
To Applt To 3-29-96 To request Corr. of Record.
|Mar 12 1996||Application for Extension of Time filed|
By Applt to request correction of the Record
|Mar 19 1996||Extension of Time application Granted|
To May 28,1996 To request Record correction
|May 10 1996||Application for Extension of Time filed|
By Applt to request correction of the Record.
|May 14 1996||Extension of Time application Granted|
To Applt To 7-29-96 To request Corr. of Record.
|May 23 1996||Compensation awarded counsel|
|Jul 9 1996||Application for Extension of Time filed|
By Applt to request correction of the Record.
|Jul 11 1996||Extension of Time application Granted|
To Applt To 8-28-96 To request Corr. of Record.
|Aug 6 1996||Application for Extension of Time filed|
By Applt to request correction of the Record.
|Aug 13 1996||Extension of Time application Granted|
To Applt To 10-28-96 To request correction of the Record. no further Extensions of time Are Contemplated.
|Oct 16 1996||Application for Extension of Time filed|
To request Record correction
|Oct 22 1996||Extension of Time application Granted|
To December 12,1996 To request Record correction
|Dec 18 1996||Compensation awarded counsel|
|Dec 19 1996||Received:|
Copy of Applt's request to correct, Augment and Settle the Record (51 Pp.)
|Aug 25 1997||Compensation awarded counsel|
|Oct 1 1997||Compensation awarded counsel|
|Aug 17 1998||Compensation awarded counsel|
|Nov 17 1999||Record on appeal filed|
C-26 (6,581 Pp.) and R-33 (4,891 Pp.) Including Materials Under Seal; Clerk's Transcripts include 4,747 pages of Juror Questionnaires.
|Nov 17 1999||Appellant's opening brief letter sent, due:|
|Dec 20 1999||Application for Extension of Time filed|
To file Aob.
|Dec 21 1999||Extension of Time application Granted|
To 2/25/2000 To file Aob.
|Feb 22 2000||Application for Extension of Time filed|
To file Aob.
|Feb 24 2000||Extension of Time application Granted|
To 4/25/2000 To file Aob.
|Mar 1 2000||Compensation awarded counsel|
|Apr 14 2000||Application for Extension of Time filed|
To file Aob.
|Apr 18 2000||Extension of Time application Granted|
To 6/26/2000 To file Aob.
|Apr 26 2000||Compensation awarded counsel|
|Jun 16 2000||Application for Extension of Time filed|
To file Aob.
|Jun 26 2000||Extension of Time application Granted|
To 8/25/2000 To file Aob.
|Aug 23 2000||Application for Extension of Time filed|
To file AOB. (5th request)
|Aug 25 2000||Extension of Time application Granted|
To 10/24/2000 to file AOB.
|Aug 25 2000||Counsel's status report received (confidential)|
|Aug 31 2000||Compensation awarded counsel|
|Oct 20 2000||Counsel's status report received (confidential)|
|Oct 20 2000||Application for Extension of Time filed|
To file AOB. (6th request)
|Oct 24 2000||Extension of Time application Granted|
To 12/26/2000 to file AOB. No further ext. of time are contemplated.
|Nov 16 2000||Compensation awarded counsel|
|Dec 14 2000||Application for Extension of Time filed|
To file AOB. (7th request)
|Jan 2 2001||Extension of Time application Granted|
To 2/26/2001 to file AOB. No further ext. of time are contemplated.
|Feb 13 2001||Counsel's status report received (confidential)|
|Feb 20 2001||Application for Extension of Time filed|
To file AOB. (8th request)
|Feb 22 2001||Compensation awarded counsel|
|Feb 26 2001||Extension of Time application Granted|
To 4/27/2001 to file AOB. No further ext. of time will be granted.
|Apr 9 2001||Counsel's status report received (confidential)|
|Apr 24 2001||Application for Extension of Time filed|
to file AOB. (9th request)
|Apr 27 2001||Application to file over-length brief filed|
(293 Pp. AOB submitted under separate cover)
|Apr 27 2001||Filed:|
"Applt.'s notice of withdrawl of motion for ext. of time to file AOB."
|Apr 30 2001||Order filed:|
Applicaton of applt. to file AOB in excess of page limit is granted.
|Apr 30 2001||Appellant's Opening Brief filed - (293 Pp.)|
|May 23 2001||Compensation awarded counsel|
|May 29 2001||Application for Extension of Time filed|
To file respondent's brief. (1st request)
|May 31 2001||Extension of Time application Granted|
To 7/30/2001 to file respondent's brief.
|Jun 7 2001||Counsel's status report received (confidential)|
|Jul 26 2001||Filed:|
Letter from resp. requesting sealed transcripts of Marsden hearings held on 2/26/92, 3/18/92, 3/19/92 and 4/20/92.
|Jul 27 2001||Application for Extension of Time filed|
To file resp.'s brief. (2nd request)
|Jul 30 2001||Extension of Time application Granted|
To 9/28/2001 to file resp.'s brief.
|Aug 9 2001||Counsel's status report received (confidential)|
|Aug 23 2001||Order filed|
Good cause appearing therefor, respondent's request filed on 7-26-2001, for copies of the reporter's transcript of hearings held pursuant to People v. Marsden (1970) 2 Cal.3d 118 is granted. The clerk is directed to unseal the following portions of the reporter's transcript and to transmit copies thereof to respondent: 1. In camera hearing held on Feb. 26, 1992 (pp. 1-11); 2. In camera hearing held on March 18, 1992 (pp. 1-22); 3. In camera hearing held on March 19, 1992 (pp. 23-28); 4. In camera hearing held on April 20, 1992 (pp. 1-7).
|Sep 13 2001||Compensation awarded counsel|
|Sep 24 2001||Application for Extension of Time filed|
To file resp.'s brief. (3rd request)
|Sep 27 2001||Extension of Time application Granted|
To 11/27/2001 to file resp.'s brief.
|Nov 21 2001||Request for extension of time filed|
To file resp.'s brief. (4th request)
|Nov 28 2001||Extension of time granted|
To 1/28/2002 to file resp.'s brief. Counsel anticipates filing the brief by 3/16/2002. After that date, no further extension is contemplated.
|Nov 30 2001||Order filed|
amending the order filed 11/28/2001 to read as follows: Good cause appearing, and based upon Deputy Attorney General Lisa H. Ashly Ott's representation that she anticipates filing the respondent's brief by 3/16/2002, counsel's request for an extension of time in which to file that brief is granted to 1/28/2002. After that date, only 1 further extesion totaling 60 addl. days is contemplated.
|Dec 5 2001||Counsel's status report received (confidential)|
|Dec 13 2001||Counsel's status report received (confidential)|
|Jan 24 2002||Request for extension of time filed|
To file resp.'s brief. (5th request)
|Jan 24 2002||Compensation awarded counsel|
|Jan 30 2002||Extension of time granted|
To 3/29/2002 to file respondent's brief. Dep. AG Ott anticipates filing the brief by 3/29/2002. No further extension is contemplated.
|Feb 7 2002||Counsel's status report received (confidential)|
|Mar 29 2002||Respondent's brief filed|
|Apr 10 2002||Counsel's status report received (confidential)|
|Apr 17 2002||Request for extension of time filed|
To file reply brief. (1st request)
|Apr 17 2002||Compensation awarded counsel|
|Apr 18 2002||Filed:|
Amended and corrected request for extension of time to file reply brief.
|Apr 23 2002||Extension of time granted|
To 6/17/2002 to file reply brief. 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 take all steps necessary to meet this schedule.
|May 30 2002||Compensation awarded counsel|
|Jun 7 2002||Counsel's status report received (confidential)|
|Jun 11 2002||Request for extension of time filed|
To file reply brief. (2nd request)
|Jun 13 2002||Extension of time granted|
to 8-16-2002 to file reply brief. The court anticipates that after that date, only one further extension totaling 60 additional days will be granted. Counsel is ordered to inform his assisting atty or entity, if any, and any assisting atty or entity of any separate counsel of record of this schedule, and to take all steps necessary to meet this schedule.
|Aug 8 2002||Counsel's status report received (confidential)|
|Aug 8 2002||Request for extension of time filed|
To file appellant's reply brief. (3rd request)
|Aug 13 2002||Extension of time granted|
To 10/15/2002 to file appellant's reply brief. The court anticipates that after that date, no further extension will be granted. Counsel is ordered to inform his 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.
|Aug 14 2002||Compensation awarded counsel|
|Sep 19 2002||Received:|
Copy of People's exhibit 18 from Santa Clara County Sueprior Court. (5 pp. letter)
|Sep 19 2002||Compensation awarded counsel|
|Oct 1 2002||Counsel's status report received (confidential)|
|Oct 1 2002||Request for extension of time filed|
To file appellant's reply brief. (4th request)
|Oct 3 2002||Extension of time granted|
To 11/15/2002 to file appellant's reply brief. Extension is granted based upon counsel William M. Goodman's representation that he anticipates filing that brief by 11/15/2002. After that date, no further extension will be granted.
|Nov 13 2002||Compensation awarded counsel|
|Nov 14 2002||Appellant's reply brief filed|
|Dec 13 2002||Oral argument letter sent|
advising counsel that case could be scheduled for oral argument as early as February 2003 calendar. Any request for additional time to argue, notification of requirement for two counsel, or advisement of "focus issues" due no later than 10 days after the case has been set for oral argument.
|Dec 18 2002||Received letter from:|
Appellant's counsel, dated 12/17/2002, re the scheduling of oral argument.
|Feb 3 2003||Case ordered on calendar|
3-12-03, 1:30pm, S.F.
|Feb 13 2003||Filed letter from:|
Appellant's counsel, dated 2/12/2003, re focus isses for oral argument.
|Feb 18 2003||Filed letter from:|
respondent, dated 2-18-2003, with oral argument focus issues.
|Feb 27 2003||Filed letter from:|
Respondent, dated 2/26/2003, requesting 45 minutes for oral argument.
|Feb 28 2003||Filed letter from:|
Appellant, dated 2/26/2003, requesting 45 minutes for oral argument.
|Mar 5 2003||Order filed|
The request of appellant for 45 minutes for oral argument is granted.
|Mar 5 2003||Order filed|
The request of respondent for 45 minutes for oral argument is granted.
|Mar 10 2003||Received letter from:|
Appellant's counsel, dated 3/10/2003, re additional authorities for oral argument.
|Mar 11 2003||Received letter from:|
Appellant's counsel, dated 3/11/2003, re additional authorities for oral argument.
|Mar 12 2003||Cause argued and submitted|
|Apr 4 2003||Compensation awarded counsel|
|May 8 2003||Opinion filed: Judgment affirmed in full|
Majority Opinion by Chin, J. -- joined by George C.J., Kennard, Baxter, Werdegar, Brown & Moreno JJ.
|May 13 2003||Related habeas corpus petition filed (post-judgment)|
|May 16 2003||Request for modification of opinion filed|
by non-party (Santa Clara Co. Public Defender).
|May 21 2003||Compensation awarded counsel|
|May 22 2003||Rehearing petition filed|
by appellant. (6 pp.)
|May 23 2003||Time extended to consider modification or rehearing|
to 8/6/2003, or the date upon which rehearing is either granted or denied, whichever occurs first.
|Jul 16 2003||Rehearing denied|
Opinion modified. Brown, J., was absent and did not participate.
|Jul 16 2003||Opinion modified - no change in judgment|
|Jul 16 2003||Remittitur issued (AA)|
|Jul 17 2003||Order filed (150 day statement)|
|Jul 23 2003||Received:|
receipt for remittitur.
|Aug 13 2003||Compensation awarded counsel|
|Oct 10 2003||Received:|
Copy of appellant's cert petition.
|Oct 21 2003||Received letter from:|
U.S.S.C., dated 10/14/2003, advising cert petition filed 10/9/2003 as No. 03-6862.
|Nov 3 2003||Application to stay execution filed|
(execution date: 1/23/2004)
|Nov 12 2003||Stay of execution order filed|
Appointed counsel for condemned inmate Gregory Calvin Smith represents that he has submitted to the United States Supreme Court a timely filed petition for writ of certiorari seeking review of this court's decision affirming the judgment of death. Moreover, appointed counsel has filed in this court a capital-related petition for writ of habeas corpus on behalf of Gregory Calvin Smith, and the disposition of that petition is pending. Accordingly, the application for stay of execution is granted and execution of the judgment of death entered against Gregory Calvin Smith by the Santa Clara Superior Court, and affirmed by this court on May 8, 2003 (30 Cal.4th 581), is hereby stayed pending the last to occur of the following: final determination of Gregory Calvin Smith's petition for writ of certiorari to the United States Supreme Court, and this court's disposition of Gregory Calvin Smith's capital-related petition for writ of habeas corpus.
|Nov 24 2003||Habeas funds request filed (confidential)|
|Dec 10 2003||Order filed re habeas funds request (confidential)|
|Dec 16 2003||Received:|
Copy of brief in opposition to cert petition. (21 pp.)
|Jan 26 2004||Certiorari denied by U.S. Supreme Court|
|May 18 2004||Compensation awarded counsel|
|Jun 9 2004||Compensation awarded counsel|
|Oct 20 2004||Compensation awarded counsel|
|Apr 30 2001||Appellant's Opening Brief filed - (293 Pp.)|
|Mar 29 2002||Respondent's brief filed|
|Nov 14 2002||Appellant's reply brief filed|