IN THE SUPREME COURT OF CALIFORNIA
Plaintiff and Respondent,
GREGORY SCOTT SMITH,
Defendant and Appellant.
Super. Ct. No. CR 27866
On October 9, 1991, defendant Gregory Scott Smith pled guilty to (1) first
degree murder in violation of Penal Code section 187, subdivision (a);1 (2)
kidnapping in violation of section 207, subdivision (a); (3) arson in violation of
section 451, subdivisions (c) and (d); (4) commission of a forcible lewd act upon a
child in violation of section 288, subdivision (b); and (5) forcible sodomy in
violation of section 286, subdivision (c). Defendant admitted the charged special
circumstances that the murder was committed during the commission of a
kidnapping, a lewd act upon a child, and an act of sodomy. (See § 190.2, subd. (a)
(17).) After the penalty trial, the jury returned a verdict of death. The trial court
denied defendant’s motions for a new trial and for modification of the verdict, and
it sentenced defendant to death. The court imposed concurrent sentences of 11
years on count 2, four years on count 3, six years on count 4, and six years on
All statutory references are to the Penal Code unless otherwise noted.
count 5, but it stayed execution of noncapital sentences pending execution of the
This appeal is automatic. (§ 1239, subd. (b).)
I. THE PROSECUTION EVIDENCE
A. Defendant’s Prior Relationship with the Victim
From April of 1989 to March 6, 1990, defendant, then 21 to 22 years old,
worked for the 31st District Latchkey Project, serving as a teacher’s aide at Darby
and Chatsworth elementary schools in the San Fernando Valley in Southern
California. His behavior as a teacher’s aide was inappropriate; he would play with
the children as if he were a child, but would get too rough. Defendant was
particularly mean to eight-year-old Paul Bailly, a student at Darby Elementary
School. On two occasions he tied Paul up with jump ropes. Once Paul asked the
school’s daycare director to fire defendant. Defendant overheard the request, and
said he was going to “get [Paul] back.”
On March 6, 1990, Hal Kuhn, executive director of the Latchkey Project,
fired defendant because defendant lacked maturity and played too roughly with the
children. Defendant was upset and often talked about “getting even.”
B. The Investigation of the Murder of Paul Bailly
About 6:30 a.m. on March 23, 1990, Mary Bailly, Paul’s mother, dropped
him off at Darby Elementary School. At 11:50 a.m., Captain Fred Baugher of the
Ventura County Fire Department responded to a fire in the Black Canyon area
near Simi Valley and discovered Paul’s body in the fire. Paul had been gagged
with a cloth gag and duct tape. A set of handcuffs was found at the scene.
According to supervising investigator James Allen, the burn pattern on the ground
and the condition of the body showed that someone had poured fire accelerant on
the corpse and set it on fire. Dr. Frederick Lovell, the Chief Medical Examiner for
Ventura County, attributed the cause of death to asphyxiation due to strangling
and to aspiration of vomit. In his opinion, the victim had also been forcibly
sodomized. The victim was dead before his body was set afire.
On March 24 and 25, 1990, Ventura County Sheriff’s deputies searched
defendant’s residence. They found, among other items, a pair of keys that fit the
handcuffs found near Paul’s body, several rolls of duct tape, and several
newspapers. The newspapers, which were about two months old, featured an
article about a well-publicized child molestation case in which the defendants
were acquitted and another case where the victim had been set on fire by his
C. Other Violent Acts by Defendant
1. During 1988-1989, shortly before the March 1990 murder of Paul
Bailly, Daniel Kavalsky worked with defendant at the Fallbrook Theater in the
San Fernando Valley. He and defendant disliked each other. On one occasion
defendant came up to Kavalsky and started choking him. Another person pulled
defendant off Kavalsky.
2. In 1984, when Brian Due was about five or six years old, defendant,
who was then 16 or 17 years old, approached Brian with one hand in a glove.
Defendant said the glove had a mind of its own and defendant could not control it.
Defendant then choked Brian with the glove, but released him when he cried.
3. During the summers of 1988 and 1989, Darren Goodman and defendant
were counselors at the Griffith Park Boys Camp. Once, when Goodman was a
referee at a hockey game, he penalized defendant for holding his hockey stick too
high, an act that endangers other players. Defendant responded by striking
Goodman in the shins with the hockey stick.
4. Brian Francis was 12 years old when he attended the Griffith Park Boys
Camp during the summer of 1988. On one occasion a basketball accidentally hit
defendant. When Brian laughed, defendant became angry and threw the ball at
Brian as hard as he could. Defendant then chased Brian and tried to pull him into
a cabin. When Brian resisted, defendant pulled Brian into the camp office. One
of the camp directors observed the incident and fired defendant.
D. Expert Testimony of Dr. Chris Hatcher
Dr. Chris Hatcher, a clinical psychologist, was an expert witness for the
prosecution. He described the characteristics of persons who commit crimes such
as the sodomy and murder of Paul Bailly.
Dr. Hatcher testified that persons who commit abductions similar to the
abduction in this case are carrying out a fantasy in which children are abducted,
bound, and sexually assaulted. Characteristic components of the fantasy include
forcible sodomy, strangulation, and disfigurement of the victim’s body.
Dr. Hatcher did not examine defendant or give an opinion on defendant’s mental
state. (We describe Dr. Hatcher’s testimony further when we discuss issues
regarding its admissibility and use. See post, at p. 13 et seq.)
II. THE DEFENSE EVIDENCE
A. Defendant’s Background
Defendant’s mother described defendant as developmentally delayed and
hyperactive from a very early age. He was six years old before he could put words
together in coherent speech. Defendant’s mother was affectionate but
overprotective toward him. Defendant’s father was ashamed of defendant’s
retardation and verbally abused defendant; the father physically abused
Janice Foster, an education therapist hired by defendant’s parents to help
him with learning disabilities, said that at age 16 defendant had the attitude of an
eager, friendly eight year old, and intellectually he was like an eight year old.
Defendant’s mother and his sisters also described defendant’s mental retardation.
Defendant had few friends. His closest relationship was with his dog Blue,
who was given to him when defendant was four months old. Blue died when
defendant was 16 or 17 years old, shortly after defendant and his mother moved
from the family home and left Blue behind. Defendant’s mother said defendant
never recovered from Blue’s death, for which he felt responsible.
B. Psychological Expert Testimony
Dr. David Benson, a professor of neurology, tested defendant’s IQ at 85-86.
He observed signs of brain abnormalities. He diagnosed defendant as mildly to
moderately mentally retarded.
After administering a PET scan (positron emission tomography scan) to
defendant, Dr. Monte Buchsbaum, a psychiatrist, testified that defendant suffers
from brain damage in areas of the brain controlling memory and learning.
In the opinion of Dr. Francis Crinella, a clinical psychologist specializing in
developmental neurology, psychological test results confirmed brain damage and
were consistent with defendant’s life history of “immaturity, explosiveness,
conduct disorders, and difficulties in getting along.” Defendant’s IQ test scores
ranged from 51 to 85. Generally, defendant did better on tests that required little
abstract reasoning. In Dr. Crinella’s view, defendant’s brain damage affected his
ethical and moral judgment.
Dr. Jerome Evans, a clinical psychologist, said defendant was mentally
disabled in various ways throughout his life, and as he got older the disability
became worse. Defendant’s performance never passed that of an eight to 10 year
old. According to Dr. Evans, defendant is incapable of acting remorseful, because
he “doesn’t know when to try to look good” for others. Persons with defendant’s
“family background and . . . emotional problems . . . never succeed at
anything. . . . [E]verything that they try turns out to be a mess or a problem.” On
cross-examination by the prosecution, Dr. Evans said he had diagnosed defendant
as manifesting a schizotypal personality disorder; such persons have peculiar
ideas, odd beliefs, magical thinking, and paranoid thoughts.
Dr. John Irwin, a professor of sociology, testified about the conditions of
confinement in maximum security prisons.
III. ISSUES RELATING TO JURY SELECTION
A. Juror Removal by Peremptory Challenge
During voir dire, the prosecutor exercised peremptory challenges to excuse
Prospective Jurors Donna T. and Donna V. Defendant objected, claiming that the
prosecutor was systematically excluding Black jurors, in violation of People v.
Wheeler (1978) 22 Cal.3d 258.2 We will uphold a trial court finding that the
defendant has not established a prima facie case if it is supported by substantial
evidence.3 (People v. Box (2000) 23 Cal.4th 1153, 1189; People v. Mayfield
(1997) 14 Cal.4th 668, 726-727.)
Defendant did not explicitly contend that the prosecutor’s challenges
violated the principles of Batson v. Kentucky (1986) 476 U.S. 79, but a state
challenge under Wheeler also states a federal claim under Batson. (People v.
Yeoman (2003) 31 Cal.4th 93, 117.)
People v. Johnson (2003) 30 Cal.4th 1302, 1318, a majority of this court
held said that to establish a prima facie showing of a Wheeler violation, the
defendant must “show that it is more likely than not the other party’s peremptory
challenges, if unexplained, were based on impermissible group bias.” I dissented.
(Id. at p. 1329.) The United States Supreme Court has recently granted certiorari.
(Sub nom. Johnson v. California (2005) ___ U.S. ___ [125 S.Ct. 824].) The exact
definition of a prima facie case, however, is not critical to our resolution of this
(Footnote continued on next page.)
Before hearing from the prosecutor on defendant’s Wheeler motion, the
trial court stated that it was not implicitly finding that the peremptory challenges
were for an impermissible purpose. The prosecutor pointed to Donna T.’s
responses to his questions during the general voir dire:
Q: “Mrs. [T.], . . . do you as you sit there right now feel sorry for the
A: “Yes, I do.”
Q: “Okay, a lot? A little? Some?”
A: “A lot.”
Q: “Okay. And is that because of the situation he’s in, or . . . .”
The prosecutor noted that Juror Donna T. hesitated when asked if she could
vote for the death penalty,4 and that in answering a question in the jury
questionnaire about support for the death penalty, she rated herself as a “five” on a
scale of one to ten.
With respect to Prospective Juror Donna V., the prosecutor said he
challenged her because of her opposition to the death penalty. During the death-
qualifying voir dire she said there should not be a death penalty; she, like Juror
Donna T., rated herself at “five” on the death penalty rating scale. The prosecutor
said that the mean average for seated jurors was 7.25, although two of the seated
jurors had a five rating.
(Footnote continued from previous page.)
appeal. The facts here do not give rise to any reasonable “inference of
discriminatory purpose” (Batson v. Kentucky, supra, 476 U.S. 79, 93). (See
People v. Cleveland (2004) 32 Cal.4th 704, 732, fn. 5.)
According to the trial court, it was Donna V. not Donna T., who hesitated.
Defendant did not recall any hesitation.
In reply, defense counsel noted that the prosecutor’s questioning of Juror
Donna T. was short. Regarding Juror Donna V., he said that her problem with the
death penalty was her concern that an innocent man might be executed, a
circumstance that could not happen here because defendant had already pleaded
After hearing from both sides, the trial court reiterated its finding that
defendant had not made a prima facie showing because the prosecution’s
peremptory challenges to Prospective Jurors Donna T. and Donna V. were
objectively reasonable and unrelated to the jurors’ race. It therefore denied
defendant’s Wheeler motion. We agree with the trial court’s conclusion.
B. The Removal of Juror Robert B. After the Jury Was Sworn
After the jury was sworn, but before counsels’ opening statements, Juror
Robert B. informed the court that he needed to fly to Seattle to deal with a family
emergency. His mother was 82 years old, had “shortness of breath,” and he had
just learned a nurse had been brought in to care for her. Robert B. did not know
how long he would have to remain in Seattle, but he was willing to come back and
serve on the jury if the trial could be delayed to accommodate him. The
prosecutor proposed seating an alternate juror; the defense objected.
The trial court remarked that “perhaps the most prudent course” would be
to tell Juror Robert B. to phone the court after he arrived in Seattle and knew how
long he had to stay, but ultimately rejected that course of action. Robert B.’s first
priority, the court said, would, and should, be his ailing mother’s condition, not his
duty of jury service; he could not be expected to go to Seattle, see his mother, and
immediately turn around and fly back to California.
In discharging Juror Robert B., the trial court relied on Code of Civil
Procedure section 233, which provides: “If, before the jury has returned its verdict
to the court, a juror becomes sick or, upon other good cause shown to the court, is
found to be unable to perform his or her duty, the court may order the juror to be
discharged.” Similarly, Penal Code section 1089 provides: “If at any time,
whether before or after the final submission of the case to the jury, a juror dies or
becomes ill, or upon other good cause shown to the court is found to be unable to
perform his or her duty, or if a juror requests a discharge and good cause appears
therefor, the court may order the juror to be discharged . . . .”
The decision to discharge a juror and substitute an alternate under Penal
Code section 1089 rests within the discretion of the trial court. (See People v.
Beeler (1995) 9 Cal.4th 953, 989; People v. Abbott (1956) 47 Cal.2d 362, 371.)
We review such a decision for abuse of discretion. (People v. Beeler, supra, 9
Cal.4th at p. 989.) Because we perceive no functional difference between Code of
Civil Procedure section 233 and Penal Code section 1089, and the parties suggest
none, we apply the same standard of review of abuse of discretion.
Two Court of Appeal decisions under section 1089 are on point here. As in
this case, both decisions involved medical emergencies. In People v. Hall (1979)
95 Cal.App.3d 299, a juror informed the court on a Friday afternoon that he had to
take his wife to a physician on Monday morning. The court asked the juror to be
in court by 11 a.m., and to telephone if he could not do so. On Monday morning,
the juror called the court and said he had to assist his wife the entire day. The trial
court then discharged the juror and substituted an alternate juror. The Court of
Appeal upheld the trial court’s action, observing that the lower court’s exercise of
discretion was “not rendered abusive merely because other alternative courses of
action may have been available to the trial judge.” (Id. at p. 307.)
People v. Bell (1998) 61 Cal.App.4th 282, on the morning of the second
day of trial, a juror told the trial court that he had to take his son to a doctor
because of a medical emergency. The juror expected to be back in court by 1:30
p.m. He agreed to call the court by 10:30 a.m. to update his situation. The trial
court, however, expressed doubt that the juror would be able to return that day,
and it replaced the juror with an alternate juror to avoid inconvenience to the other
jurors, alternates, and witnesses. (See id. at p. 288.)
Upholding the trial court’s decision, the Court of Appeal in Bell stated:
“[T]he [trial] court conducted an adequate inquiry into good cause, and caring for
a sick or injured family member surely constitutes good cause. [Citation.]
Furthermore, given the uncertain timing of his return and the fact so many jurors,
alternates, and witnesses were waiting, the court was well within its discretion to
discharge juror No. 2 and replace him with an alternate juror.” (People v. Bell,
supra, 61 Cal.App.4th at p. 289.)
We note also that two decisions of this court have upheld a trial court’s
discretionary decision to discharge a juror whose family member died
unexpectedly, rejecting the defense counsels’ suggestions that the court continue
the trial until the juror could return. (People v. Ashmus (1991) 54 Cal.3d 932,
986-987; In re Mendes (1979) 23 Cal.3d 847, 852.)
We conclude that when, as here, a juror has good cause to be absent from
trial for an indefinite period, the trial court does not abuse its discretion in
replacing that juror with an alternate juror.
IV. ISSUES RELATING TO THE ADMISSIBILITY AND USE OF
EVIDENCE OF MENTAL ILLNESS BY THE PROSECUTION
A brief overview: clinical psychologist Dr. Chris Hatcher testified that
crimes such as those committed in this case are generally committed by sexual
sadists who derive sexual pleasure from carrying out a fantasy involving restraint
and molestation of a child victim. He did not testify that defendant was such a
Defendant argues that the introduction of Dr. Hatcher’s testimony was an
improper attempt by the prosecution to use extreme mental illness as an
aggravating factor, contrary to People v. Whitt (1990) 51 Cal.3d 620, 654, and
other cases. (Defendant first raised this issue in an in limine motion before
Dr. Hatcher testified, but raised the same issue in connection with defense
objections to other testimony, the jury instructions, and the prosecutor’s closing
argument.) Defendant further contends that admission of Dr. Hatcher’s testimony
violated his rights under California’s death penalty law and under the Fifth, Sixth,
Eighth, and Fourteenth Amendments to the United States Constitution.
The Attorney General responds that the testimony was admissible under
section 190.3, factor (a), which allows the evidence of the “circumstances of the
crime,” and that evidence admitted under factor (a) may be either aggravating or
mitigating. (See, e.g., People v. Coddington (2000) 23 Cal.4th 529, 640.)
Thus we face this question: Can the prosecution introduce evidence of a
defendant’s mental illness as an aggravating consideration if that mental condition
relates to the circumstances of the crime? Based upon the precedents of this court,
we conclude that it can.
A. Trial Testimony and Rulings
1. Trial court’s rulings before Dr. Hatcher’s testimony
At trial, defendant moved in limine to exclude Dr. Hatcher’s testimony on
the ground that evidence relating to mental illness was mitigating character
evidence and thus could not be introduced by the prosecution in its case-in-chief
and that the prejudicial effect of that evidence outweighed its probative value.
After extensive argument, the trial court ruled that Dr. Hatcher’s testimony would
be admissible on “the nature of the things that are involved” in the crime.
2. Dr. Hatcher’s testimony
Dr. Hatcher, a clinical psychologist, specializes in crimes involving the
abduction of children. He has interviewed many persons who have committed
such crimes, has conducted research on the subject, and is familiar with other
Dr. Hatcher testified that people who commit crimes such as those involved
here — the murder of a child accompanied by sexual abuse — go through a
developmental process beginning with a fantasy at puberty of being sexually
aroused by an image of “someone tied up, restrained, or tortured.” Over time, the
fantasy becomes more serious and more detailed. Although some individuals can
resist the impulse to carry out the fantasy, those that go forward still have a sense
of right and wrong. They are able to plan, and they can defer acting until they get
the right victim. The “drive and the need to realize the fantasy overcomes any
consideration of what might happen to the victim.”
According to Dr. Hatcher, the perpetrator will gather instruments of
restraint, such as handcuffs. During the crime, the victim is usually restrained and
gagged. Unlike ordinary child molesters, sadistic pedophiles are not satisfied with
mere sexual contact, but are sexually aroused by the “suffering and the discomfort
of the child.” Sodomy, strangulation, and disfigurement are common
characteristics of this kind of crime.
Dr. Hatcher reviewed various exhibits found in defendant’s apartment,
including two newspaper articles about a notorious child molestation case in
which the defendants were acquitted, and another article about a father who set
fire to his young son. He also noted highlighted list of names found in defendant’s
residence, photographs of young children also found in defendant’s residence, and
the rope and duct tape found in defendant’s car. He concluded that all of these
were consistent with the typical fantasy of persons who commit crimes such as the
crime here. Finally, with respect to the crime here, Dr. Hatcher found “a degree of
planning, foresight, the development of a period of preparation over a substantial
period of time, the focusing of a particular type of fantasy . . . regardless of the
effect upon others.”5
B. Admissibility of Dr. Hatcher’s Testimony
1. The scope of section 190.3, factor (a)
Section 190.3, factor (a) permits both the prosecution and the defense to
introduce evidence of “[t]he circumstances of the crime of which the defendant
was convicted in the present proceeding.” In People v. Edwards (1991) 54 Cal.3d
787, this court adopted an expansive reading of this language. Edwards
explained: “The word ‘circumstances’ as used in factor (a) of section 190.3 does
not mean merely the immediate temporal and spatial circumstances of the crime.
Rather it extends to ‘[t]hat which surrounds materially, morally, or logically,’ the
crime.” (Id. at p. 833.) We therefore held that factor (a) authorized evidence of
the “specific harm caused by the defendant, including the impact on the family of
the victim.” (Id. at p. 835.) We also held that evidence of the massive five-day air
and ground search for the defendant after the crime was discovered was admissible
under factor (a). (Id. at pp. 831-832.)
In other cases we have held that characteristics of the crime fall within the
scope of section 190.3, factor (a). People v. Lucero (2000) 23 Cal.4th 692, 714-
715, held a photograph of the victim when alive was admissible because it
portrayed the victim as seen by the defendant before the murder. People v.
Coddington, supra, 23 Cal.4th 529, 640, said that factor (a) included “the method
of killing or evidence of extensive planning.” People v. Nicolaus (1991) 54
Cal.3d 551, 581, held evidence of the defendant’s hatred of his wife’s religion was
Dr. Hatcher also testified concerning the experiences of children subjected
to sadistic molestation. We discuss that evidence, and defendant’s objections to it,
in part V of this opinion. (See post, at p. 27 et seq.)
admissible as bearing upon the defendant’s motive for the crime. (See also People
v. Osband (1996) 13 Cal.4th 622, 708 [motive as part of circumstances of crime].)
In light of these precedents, we conclude here that Dr. Hatcher’s testimony
was admissible under section 190.3, factor (a). It explained the motivation for the
crime, and the history and mental condition that produces such motivation. It
explained the significance of the methods used to commit the crime – the
handcuffs and duct tape, the act of sodomy, the post mortem burning of the body.
It also explained how evidence found in defendant’s home and car showed that he
premeditated the crime, and related to the manner in which it was committed. In
short, Dr. Hatcher’s testimony was evidence relating to the circumstances of the
2. Evidence of mental illness under factors (d) and (k) of section 190.3
Defendant insists, however, that Dr. Hatcher’s testimony falls under factors
(d) and (k) of section 190.3, and that such evidence can only be mitigating. Factor
(d) authorizes the penalty jury to consider evidence of “extreme mental or
emotional disturbance.” We have held in previous cases that such evidence can
only be mitigating. (E.g., People v. Montiel (1993) 5 Cal.4th 877, 944; People v.
Whitt, supra, 51 Cal.3d 620, 654; People v. Ghent (1987) 43 Cal.3d 739, 776.) In
People v. Benson (1990) 52 Cal.3d 754, we said that no reasonable juror could
believe “that extreme mental or emotional disturbance . . . were circumstances in
aggravation,” and hence a jury instruction to that effect was unnecessary. (Id. at
p. 802; see People v. Cox (1991) 53 Cal.3d 618, 675.)
Factor (k) of section 190.3 authorizes consideration of “[a]ny other
circumstance which extenuates the gravity of the crime even though it is not a
legal excuse for the crime.” Under factor (k), the jury must consider any “ ‘aspect
of [the] defendant’s character or record . . . that the defendant proffers as a basis
for a sentence less than death.’ ” (People v. Easley (1983) 34 Cal.3d 858, 878-
879, fn. 10, quoting Lockett v. Ohio (1978) 438 U.S. 586, 604.) Consequently,
even though factor (d) refers to “extreme” emotional or mental disturbance,
evidence of mental disorder of less extreme character is admissible under factor
(k). (See, e.g., People v. Whitt, supra, 51 Cal.3d at p. 655.) Evidence admitted
under factor (k), like that admitted under factor (d), is mitigating. (See People v.
Lewis (2001) 25 Cal.4th 610, 672; People v. Montiel, supra, 5 Cal.4th at p. 944;
People v. Edelbacher (1989) 47 Cal.3d 983, 1033.)
The Attorney General argues that Dr. Hatcher’s testimony does not
implicate the principle that evidence of mental illness is mitigating because
Dr. Hatcher testified only that a murder such as the one here is usually committed
by a sadistic pedophile, not that defendant himself was a sadistic pedophile. The
inference, however, is unmistakable: if the nature of the crime shows it was
probably committed by a sadistic pedophile, and defendant admits committing the
crime, then defendant is probably a sadistic pedophile.6 Dr. Hatcher’s testimony,
moreover, acquires relevance only to the extent that it does describe defendant.
As the trial judge observed: “[I]t’s irrelevant unless you want to argue to
somebody that he is a sexual sadist. Otherwise it’s meaningless.”
3. Admissibility of evidence of mental illness that relates to the
circumstance of the crime
The question before us, therefore, is whether on the facts of this case the
prosecution could present evidence in its penalty case-in-chief from which the jury
Even assuming that a limiting instruction could prevent the jury from
drawing that inference, the instruction given here did not do so. Although it told
the jurors that they could not use Dr. Hatcher’s testimony to prove that defendant
was a person of bad character or had a disposition to commit crimes, it specifically
allowed the jurors to draw inferences about “the behavior and mental processes of
. . . persons who commit such crimes.”
could infer that defendant is a sadistic pedophile and argue that inference as an
aggravating consideration. Defendant contends that under People v. Boyd (1985)
38 Cal.3d 762, evidence of mental illness cannot be presented as aggravating
evidence. Defendant’s assertion misstates the import of Boyd, which does not bar
the admission of evidence of defendant’s mental condition as aggravating
evidence if it is relevant to the circumstances of the crime.
Boyd held that “the 1978 law prevents the prosecution from introducing, in
its case-in-chief, aggravating evidence not contained in the various factors listed in
section 190.3.” (People v. Boyd, supra, 38 Cal.3d at p. 774; see People v. Clark
(1992) 3 Cal.4th 1, 156; People v. Guzman (1988) 45 Cal.3d 915, 963.) As we
have noted, some of those listed factors, including factor (d) (“extreme mental or
emotional disturbance”) and factor k (any aspect of defendant’s character offered
as a basis for a sentence less than death) can only be mitigating. Because evidence
of mental illness under factors (d) and (k) of section 190.3 cannot be considered
aggravating, such evidence cannot be introduced by the prosecution as part of its
case in chief at the penalty phase. (People v. Kipp (2001) 26 Cal.4th 1100, 1135;
People v. Avena (1996) 13 Cal.4th 394, 438-439; People v. Coleman (1989) 48
Cal.3d 112, 149.) But in this case the evidence of defendant’s mental illness is
pertinent not only to factors (d) and (k), but also to another listed factor – factor
(a), the circumstances of the crime. Evidence of the circumstances of the crime is
admissible as aggravating evidence in the prosecution’s case-in-chief, even though
that evidence would have been inadmissible as prosecution evidence if offered
only under factors (d) or (k).
This conclusion is supported by two decisions of this court that discuss the
scope of prosecutorial argument. In People v. Carpenter (1997) 15 Cal.4th 312,
the prosecutor argued that factor (j) of section 190.3 – whether the defendant was
an accomplice – was aggravating because the defendant acted alone. We observed
that even if factor (j) could only be mitigating, “the jury could certainly consider
that defendant acted alone as a circumstance of the crime. It mattered little
whether the jury considered it in relation to factor (j) or factor (a).” (People v.
Carpenter, supra, 15 Cal.4th at pp. 414-415.) In People v. Pollock (2004) 32
Cal.4th 1153, 1185, the prosecutor argued that the defendant’s lack of remorse as
he fled the scene of the crime was an aggravating factor. Our prior decisions had
stated that the presence of remorse is mitigating, but its absence is generally not
aggravating. (See People v. Ashmus, supra, 54 Cal.3d at p. 992.) Pollock,
however, drew a distinction: Absence of remorse at the crime scene or when the
defendant is fleeing the scene is admissible as aggravating evidence because it
relates to the circumstances of the crime. (People v. Pollock, supra, 32 Cal.4th
1153, 1185.) Although both Carpenter, supra, 15 Cal.4th 312, and Pollock,
supra, 32 Cal.4th 1153, involved prosecutorial argument, it is reasonable to infer
that if the prosecutor is permitted to argue that evidence is aggravating, that
evidence can be introduced as part of the prosecutor’s case in chief.
People v. Avena, supra, 13 Cal.4th 394, also supports this conclusion.
There the defendant protested that prosecution evidence of defendant’s previous
violent crimes, offered under section 190.3, factor (b), should have been excluded
because the prosecution cannot introduce evidence of defendant’s bad character
(factor (k) evidence) in its case in chief. We replied: “The fact that evidence of
defendant’s previous violent crimes was also indicative of his character or mental
condition does not render the evidence inadmissible.” (People v. Avena, supra, 13
Cal.4th at p. 439.)
We distinguish two decisions in which prosecution evidence of mental
illness or bad character was held inadmissible in the prosecution penalty case in
chief. In People v. Coleman, supra, 48 Cal.3d 112, a prosecution psychologist
testified that the defendant had a passive-aggressive, antisocial personality and
was criminally oriented, immature, and defensive. The psychologist did not relate
his observations to the crime, but instead used them as a basis to recommend that
defendant was dangerous and should not be released. We said that this expert
evidence was inadmissible in the prosecution’s case-in-chief because it was not
relevant to any of the statutory aggravating or mitigating factors other than section
190.3, factor (k). (People v. Coleman, supra, 48 Cal.3d at p. 149.) In People v.
Edelbacher, supra, 47 Cal.3d 983, we said the prosecution acted improperly in
arguing that evidence of the defendant’s background and history – evidence that
did not relate to the circumstances of the crime – showed “ ‘that he’s had all the
breaks’ ” (id. at p. 1033) so the crime could not be blamed on childhood
deprivation or hardship. Character evidence relevant only to factor (k), we said,
cannot be used affirmatively as a circumstance in aggravation. (People v.
Edelbacher, supra, 47 Cal.3d at p. 1033.) These cases show that evidence of
mental illness or bad character is admissible in the prosecution’s case in chief only
if, as here, it relates to an aggravating factor listed in section 190.3. But if the
evidence does relate to an aggravating factor, it is admissible as part of the
prosecution’s penalty case-in-chief, even if it also bears upon a mitigating factor
listed in that section.
4. Defendant’s federal constitutional claims
Defendant asserts that admitting evidence of his mental illness as an
aggravating consideration violated his rights under the Fifth, Sixth, Eighth, and
Fourteenth Amendments to the United States Constitution. Defendant, however,
did not raise these contentions in the trial court.
Seeking to avoid the conclusion that his constitutional claims have been
forfeited (see People v. Williams (1997) 16 Cal.4th 153, 250), defendant cites
People v. Yeoman, supra, 31 Cal.4th 93, which said: “[N]o useful purpose is
served by declining to consider on appeal a claim that merely restates, under
alternative legal principles, a claim otherwise identical to one that was properly
preserved . . . .” (Id. at p. 117.) But here defendant’s constitutional claim is not
identical to his properly preserved claim based on California decisions and
statutes. His state law claim is based on decisions interpreting section 190.3 and
asserting that factors (d) and (k) can only be mitigating. There are, however, no
federal decisions preventing the jury from treating factor (d) or factor (k) evidence
as aggravating. (See Tuilaepa v. California (1994) 512 U.S. 967, 976-979.)
C. Defendant’s Objection to Dr. Hatcher’s Testimony Under Evidence
Code Section 352
Defendant contends that Dr. Chris Hatcher’s testimony should have been
excluded under Evidence Code section 352, which permits the trial court, in its
discretion, to exclude evidence “if its probative value is substantially outweighed
by the probability that its admission will (a) necessitate undue consumption of
time or (b) create substantial danger of undue prejudice, of confusing the issues, or
of misleading the jury.”
In People v. Box, supra, 23 Cal.4th 1153, we rejected the Attorney
General’s contention that Evidence Code section 352 did not apply to evidence
offered under factor (a) of Penal Code section 190.3. Box explained: “[T]he trial
court lacks discretion to exclude all factor (a) evidence on the ground it is
inflammatory or lacking in probative value.” (23 Cal.4th at pp. 1200-1201.) It
retains, however, “its traditional discretion to exclude ‘particular items of
evidence’ by which the prosecution seeks to demonstrate either the circumstances
of the crime (factor (a)), or violent criminal activity (factor (b)), in a ‘manner’ that
is misleading, cumulative, or unduly inflammatory.” (Id. at p. 1201; see People v.
Michaels (2002) 28 Cal.4th 486, 534-535.)
Here the issue of the admissibility of Dr. Hatcher’s testimony under
Evidence Code section 352 is simply another way of looking at the question
whether that evidence can be admitted as aggravating evidence. “Prejudice” in
section 352 does not refer simply to evidence that is damaging to the defendant.
Instead, “ ‘[t]he “prejudice” referred to in Evidence Code section 352 applies to
evidence which uniquely tends to evoke an emotional bias against the defendant as
an individual and which has very little effect on the issues.’ ” (People v. Karis
(1988) 46 Cal.3d 612, 638, italics added.)
Dr. Hatcher’s testimony provides a basis from which the jurors could infer
that defendant is a sadistic pedophile, and premeditated and committed the crime
for the sexual pleasure of the act, an aggravating consideration. If that is a
permissible inference, as we have concluded, then the evidence is highly
D. Exclusion of Dr. Hatcher’s Testimony as “Profile Evidence”
Defendant argues that Dr. Hatcher’s testimony amounted to the improper
use of “profile evidence.” (See generally People v. Barnes (2004) 122
Cal.App.4th 858, which reviews the California decisions on profile evidence.)
“Profile evidence,” however, is not a separate ground for excluding evidence; such
evidence is inadmissible only if it is either irrelevant, lacks a foundation, or more
prejudicial than probative. (Id. at pp. 868-869.) In arguing the evidence here was
inadmissible, defendant relies on two Court of Appeal decisions, People v. Walkey
(1986) 177 Cal.App.3d 268, and People v. Robbie (2001) 92 Cal.App.4th 1075.
In Walkey, the prosecution introduced expert evidence that the most
important factor in the profile of a child abuser was that he had himself been
abused as a child, elicited an admission from the defendant that he had been
abused as a child, then argued that the defendant was guilty because he fit the
profile of a child molester. (People v. Walkey, supra, 117 Cal.App.3d at pp. 276-
277.) The Court of Appeal held the evidence inadmissible and the prosecution’s
argument improper. (Id. at p. 279.)
In People v. Robbie, supra, 92 Cal.App.4th 1075, a prosecution expert
testified that many rapists use only minimal force, and described in detail a
scenario in which the rapist is in effect acting as if he thinks of the sexual acts as
consensual. (Id. at pp. 1082-1084.) Not coincidentally, the behavior the expert
described matched the testimony of the alleged victim. The expert conceded that
the same behavior would be consistent with a truly consensual encounter. The
Court of Appeal in Robbie characterized this evidence as inadmissible “profile
evidence.” It explained: “[The evidence] implies that criminals, and only
criminals, act in a given way. In fact, certain behavior may be consistent with
both innocent and illegal behavior, as the People’s expert conceded here.” (Id. at
p. 1085.) Other cases excluding profile evidence include People v. Castaneda
(1997) 55 Cal.App.4th 1067, 1072 (drug dealer profile), People v. Martinez (1992)
10 Cal.App.4th 1001, 1006 (truck thief profile), and U.S. v. Beltran-Rios (9th Cir.
1989) 878 F.2d 1208, 1210 (drug courier profile).
The evidence here is quite different. Profile evidence is objectionable when
it is insufficiently probative because the conduct or matter that fits the profile is as
consistent with innocence as guilt. The evidence here, however, does not have
this problem. Defendant has pled guilty, and the circumstances of Paul Bailly’s
murder themselves suggest a pathological cause. Dr. Hatcher’s testimony did not
suggest that this type of crime is committed with any frequency, or at all, by
persons who do not have the pathology he described. Defendant’s own penalty
phase evidence emphasized his mental retardation, but it offered no alternative
explanation why defendant would sodomize and kill an eight-year-old boy.
E. Admissibility of Newspaper Articles
While searching defendant’s residence on March 24 and 25, 1990, the
police discovered copies of three newspapers. Two editions contained articles
about a notorious child molestation case in which the defendants were acquitted.
The third edition contained an article about a father who had set fire to his young
The prosecution argued that the articles were admissible to show that
defendant had been fantasizing about child molesting and had been planning such
a crime. Dr. Hatcher testified that persons who commit such crimes “almost
always [have] a collection of newspaper or magazine articles that have direct
relevance to the fantasy and to the subsequent assault that’s committed.” The
defense objected to the admission of the newspaper articles as irrelevant and as
more prejudicial than probative.
The articles were relevant, both as indicia of defendant’s mental condition
that led to the crime, and as evidence that defendant was planning, or at least
contemplating, such a crime. If defendant’s sadistic purpose was an admissible
aggravating circumstance, as we concluded earlier in this opinion (ante, at pp. 17-
19), then there is no improper prejudicial effect from the evidence of the
F. Rebuttal Testimony of Dr. Jeffrey Schaeffer
Defendant’s expert witnesses testified that defendant was mentally
retarded, that he was a “moral imbecile” incapable of appreciating the social
context and impact of his behavior, and that he had brain damage. In rebuttal, the
prosecution called Dr. Jeffrey Schaeffer. He did not diagnose defendant, but
testified over defendant’s objection that in defendant’s case the four diagnostic
categories he would consider were antisocial personality, pedophilia, sexual
sadism, and specific developmental disorders. He further testified that there is no
correlation between brain damage and committing a premeditated crime of
violence. There is also no correlation between learning disabilities or mental
retardation and violent crime.
Defendant argues that Dr. Schaeffer’s testimony was improper rebuttal
because defendant’s own experts had never discussed sexual sadism. We
disagree. When, as here, a mental health expert offers a diagnosis, this opens the
door to rebuttal testimony questioning that diagnosis or suggesting an alternative
diagnosis. (See People v. Carpenter, supra, 15 Cal.4th at p. 406.)
Defendant also contends that his evidence of brain damage and retardation
was proper mitigating evidence even if those conditions did not cause the murder
of Paul Bailly. (See Eddings v. Oklahoma (1982) 455 U.S. 104, 113-114; Lockett
v. Ohio, supra, 438 U.S. at p. 604.) We agree with defendant’s premise. But
rebuttal tending to show that the brain damage and retardation are not related to
the crime remains relevant to the jury’s evaluation of the defense evidence as it
bears upon the appropriateness of the death penalty.
“ ‘The admission of rebuttal evidence rests largely within the sound
discretion of the trial court and will not be disturbed on appeal in the absence of
“palpable abuse.” ’ ” (People v. Kelly (1990) 51 Cal.3d 931, 965.) We find no
abuse of discretion in the trial court’s ruling admitting the testimony of
G. The Prosecutor’s Comments in Closing Argument About
Dr. Hatcher’s Testimony
As noted earlier, Dr. Chris Hatcher testified about the kind of person who
would commit the crimes charged in this case. We concluded that the jury could
infer that defendant was such a person. (Ante, at p. 20.)
In his closing argument to the jury, the prosecutor asked: “Now, what were
the inferences we can draw from Dr. Hatcher’s testimony about the defendant’s
motive?” (Italics added.) He then made a series of assertions prefixed with the
phrase “we know”: “we know” that defendant handcuffed and gagged the victim
for sexual pleasure; “we know” that he enjoyed seeing the victim struggle for life;
“we know” that he sodomized and strangled the victim “for purposes of sexual
pleasure and to produce both terror and struggle.” Defendant objected, pointing
out that Dr. Hatcher had described a hypothetical perpetrator. The trial court
overruled the objection. The prosecutor then resumed his argument by asking the
jury again what “inferences” could be drawn from Dr. Hatcher’s testimony.
Literally speaking, the prosecutor’s argument may have misstated the
evidence. “We” – a term that presumably encompassed at least the prosecutor and
the jurors – did not “know” defendant’s motivation and feelings. “We” could only
infer them from Dr. Hatcher’s testimony. But this overstatement of the evidence
is insignificant, because the prosecutor’s argument, taken as a whole, made it clear
that he was not talking about proven facts, but about inferences that the jury could
draw from Dr. Hatcher’s description of the kind of person who commits crimes
such as those here. Thus, even assuming that the trial court should have sustained
defendant’s objection, any error in not doing so would be harmless.
H. The Jury Instructions Relating to Dr. Hatcher’s Testimony
1. The instruction limiting the use of Dr. Chris Hatcher’s testimony
The trial court gave this limiting instruction: “The testimony of Dr. Chris
Hatcher was received in evidence and may be considered by you only for the
limited purpose of explaining, if it does, the meaning of certain pieces of evidence
offered in this case, to explain the general phenomena of sexual fantasies and to
provide information on the subject of the behavior and mental processes of
children who are abducted for the purpose of violent sexual assault and persons
who commit such crimes. He testified to a generalized body of knowledge.
However, should you find that there are facts in this case which are or may be
explained by such testimony you may consider the testimony for that purpose.
However, such evidence was not received and may not be considered by you, to
prove that the defendant is a person of bad character or that he has a disposition to
commit crimes. Further, Dr. Hatcher did not examine [defendant] nor did he
express any opinion about the defendant or how the crime actually occurred.”
Defendant correctly observes that the inclusion of the italicized phrase
permitted the jurors to consider Dr. Hatcher’s testimony as information relevant to
defendant’s mental processes. But this observation simply returns us to the issue
previously discussed: May the jury consider, as aggravating evidence under
section 190.3, factor (a), evidence of defendant’s mental illness insofar as it relates
to the circumstances of the crime? Our conclusion that it may do so resolves the
controversy over the jury instruction; if the jurors can consider Dr. Hatcher’s
testimony as evidence relating to defendant’s mental processes, it cannot be error
to tell them they may do so.
2. Defendant’s proposed jury instructions
Defendant proposed five jury instructions relating to mental illness and
mitigation. The trial court was not obliged to give any of these instructions, but
exercised its discretion to give defendant’s proposed special instruction No. 6.
Special instruction No. 6 read, in pertinent part:
“You have been instructed that you may consider, as mitigation, any
circumstance which extenuates the gravity of the crime even though it is not a
legal excuse for the crime, and any sympathetic or other aspect of the Defendant’s
character or record as a basis for a sentence less than death, whether or not those
circumstances or aspects of the Defendant’s character are related to the offense.
“Circumstances surrounding the commission of the crime which you should
consider include, but are not limited to, the following:
“1. Whether the Defendant acknowledged responsibility for the crime;
“2. Whether the crime involved a single victim;
“3. Whether the Defendant committed the offense while under the
influence of a mental or emotional disturbance, which disturbance need not be
extreme nor amount to legal insanity or an inability to form a specific intent. This
includes, but is not limited to whether [defendant] has low self-esteem, or suffers
from a brain dysfunction, that has affected his ability to learn and may affect his
judgment or perception.
“Mitigating factors also include any sympathetic, compassionate, merciful,
or other aspect of Defendant’s background, character, record, or social,
psychological or medical history, that the Defendant offers as a basis for a
sentence less than death, whether or not related to the offense for which he is on
trial. . . .”
Defendant argues that the trial court erred in rejecting defendant’s special
instructions Nos. 7 and 8.
Defendant’s proposed special instruction No. 7 read: “The term ‘mental or
emotional disturbance’ as used in these instructions includes any violent, intense,
high-wrought or enthusiastic emotion including, but not limited to, fear, revenge,
and the emotion induced by and accompanying or following any intent to commit
a felony. [¶] The presence of mental or emotional disturbance may only be
considered by you as a factor in mitigation, and may not be considered as an
The trial court correctly rejected this instruction. Defendant’s assertion that
any emotion that accompanies an intent to commit a felony constitutes a “mental
or emotional disturbance” and cannot be considered as a factor in aggravation is
incorrect. As we have explained, the presence of mental or emotional disturbance
many be considered as an aggravating factor if admitted as relevant to the
circumstances of the crime.
Defendant’s proposed special instruction No. 8 read:
“The term ‘mental disease or defect’ as used in these instructions is not
limited to evidence which excuses the crime or reduces defendant’s culpability,
but includes any degree of mental defect, disease or impairment which you may
determine is of a nature that death should not be imposed.
“Such a mental disease or defect may be considered by you as a mitigating
factor whether or not the mental condition caused the defendant to commit the
offense, and whether or not the condition was operative at the time of the offense.
“The presence of mental disease or defect may only be considered by you
as a factor in mitigation, and may not be considered as an aggravating factor.”
The first two paragraphs of this instruction correctly state the law. (See
Eddings v. Oklahoma, supra, 455 U.S. at pp. 113-114; People v. Whitt, supra, 51
Cal.3d at p. 655.) The third paragraph, however, is inconsistent with our
conclusion (ante, at pp. 16-18) that the jury can consider evidence of mental
disease or defect as aggravating when that evidence is admitted under section
190.3, factor (a). The trial court therefore correctly rejected the proposed
V. ISSUES RELATING TO THE ADMISSIBILITY OF
PROSECUTION EVIDENCE OF CHILDREN’S
REACTIONS TO SADISTIC MOLESTATION
A. Dr. Hatcher’s Testimony
Dr. Chris Hatcher interviewed children who had been sadistically molested,
and on the basis of that experienced described the stages such children go through.
In the first stage, he said, the children felt that the experience is unreal, like
watching a television show. Then the children realize that they are in danger and
try to avoid it by making friends with the abductor. In the last stage the horrified
children are filled with shame at the sodomy and increasingly aware that they may
B. Defendant’s Objections
Admissibility of the testimony under Evidence Code sections 702 and 801.
Defendant contends that the admission of Dr. Chris Hatcher’s testimony
concerning the experiences of child victims violates Evidence Code section 702,
which provides that the testimony of a witness is inadmissible unless based on
personal knowledge. Dr. Hatcher, however, was testifying as an expert witness
pursuant to Evidence Code section 801, and Evidence Code section 702 by its
terms does not apply to such testimony.
Defendant, however, points out that Evidence Code section 801 only
permits expert testimony on “a subject that is sufficiently beyond common
experience that the opinion of an expert would assist the trier of fact.” He argues
that the experience of child victims of violent sexual assaults are not sufficiently
beyond common experience that expert assistance is required. We disagree. Only
a fraction of the general population, and presumably none of the jurors, has been
personally victimized. Of course a juror can try to imagine what it would be like
for a child to experience such an assault, but this kind of imagining does not
substitute for expert testimony.
2. Admissibility of the testimony under Evidence Code section 352
Defendant contends that Dr. Hatcher’s testimony should have been
excluded under Evidence Code section 352 as more prejudicial than probative.
This is an exact counterpart to his argument that Dr. Hatcher’s testimony about the
characteristics of perpetrators should have been excluded under section 352, and it
is rejected on the same grounds. (See ante, pp. 19-20.)
3. Federal constitutional arguments
Defendant argues that the admission of Dr. Chris Hatcher’s testimony
violated the Eighth and Fourteenth Amendments to the federal Constitution. He
contends that the federal Constitution requires an “individualized” death penalty
determination (see Woodson v. North Carolina (1976) 428 U.S. 280, 304), making
testimony about the suffering of victims of other crimes inadmissible. We
recognize that the jury could not properly punish this defendant for other
perpetrators’ crimes, but the evidence at issue was not introduced or used for that
purpose. Dr. Hatcher’s testimony was admissible because the jury could infer that
here the victim’s experiences were similar to those of victims of other violent
molestations, and consider whether to impose the death penalty because of the
circumstances of this crime.
Finally, defendant claims that Dr. Hatcher’s testimony was so inflammatory
that its admission denied him due process of law. (See People v. Boyette (2002)
29 Cal.4th 381, 444.) But penalty trials are different from guilt trials. Emotional
appeals are allowed, and evidence that arouses emotions, including evidence of the
suffering of the victims and their families, is generally admissible. (See People v.
Taylor (2001) 26 Cal.4th 1155, 1171-1172; People v. Bittaker (1989) 48 Cal.3d
1046, 1110, fn. 34.) Evidence may be excluded under the due process clause or
Evidence Code section 352 if it is “unduly inflammatory” (People v. Box, supra,
23 Cal.4th at p. 1201), but that language refers to an extreme situation. Evidence
relating to the suffering of the victim and prosecutorial comment on that suffering
are appropriate in death penalty cases. (See People v. Wrest (1992) 3 Cal.4th
1107-1108; People v. Edwards, supra, 54 Cal.3d 787, 852 (conc. & dis. opn. of
VI. OTHER EVIDENTIARY ISSUES
A. Victim Impact Evidence
Defendant argues that the trial court erred when it admitted, over defense
objection, testimony by Mary Bailly, the mother of Paul Bailly, the murder
victim.7 She testified: “I don’t think the pain will ever go away. . . I think the
worst part of it is, is what goes on in my mind what happened to him. What he
went through is – is just very difficult.”
The United States Supreme Court held victim impact testimony admissible
in Payne v. Tennessee (1991) 501 U.S. 808, 825. This court then held such
evidence admissible in California as relating to section 190.3, factor (a), the
circumstances of the crime. (People v. Fierro (1991) 1 Cal.4th 173; People v.
Edwards, supra, 54 Cal.3d 787.) Defendant here points to language in Payne and
Edwards that victim impact evidence could be excluded if it is “so unduly
prejudicial that it renders the trial fundamentally unfair.” (People v. Edwards,
supra, 54 Cal.3d at p. 835, quoting Payne v. Tennessee, supra, 501 U.S. at p.
People v. Stanley (1995) 10 Cal.4th 764, 832, found no misconduct in a
prosecutor’s argument on victim impact because “it was not so inflammatory or
emotional as to divert the jury’s attention from its proper role or invite an
irrational, purely subjective response.” We do not, however, know of any cases
after Payne and Edwards holding victim impact evidence inadmissible, or
argument based on that evidence improper. The references in Payne and Stanley
In a motion in limine in the trial court, defendant contended that the error
violated his rights under the due process clause of the Fourteenth Amendment and
the cruel and unusual punishment clause of the Eighth Amendment to the federal
to the exclusion of unduly inflammatory victim impact evidence contemplates an
extreme case, which is not the situation here. The mother’s testimony here is what
one would expect in any case involving the murder of a child. It is not
significantly different from the testimony of the victim’s son and husband held
admissible in People v. Taylor, supra, 26 Cal.4th at pages 1171-1172.
B. Evidence of Prison Conditions
The trial court sustained the prosecutor’s objection to defense expert
evidence offered to show “what occurs in prison and what prison means as a form
of punishment.” Defendant challenges this ruling.
As defendant recognizes, we have in the past held: “evidence of the
conditions of confinement that a defendant will experience if sentenced to life
imprisonment without parole is irrelevant to the jury’s penalty determination
because it does not relate to the defendant’s character, culpability, or the
circumstances of the offense.” (People v. Quartermain (1997) 16 Cal.4th 600,
632; see People v. Daniels (1991) 52 Cal.3d 815, 876-878.) Defendant asks us to
reconsider this issue, contending that jurors cannot be precluded from considering
any aspect of a defendant’s character and record that he offers as a basis for a
sentence of less than death. (See People v. Boyd, supra, 38 Cal.3d 762, 775;
People v. Easley, supra, 34 Cal.3d 858, 878.) But the evidence defendant offered
here is not an aspect of his character and record. Contrary to defendant’s
contention, it is not the law that jurors must be allowed to consider any evidence a
defendant offers on the question whether the death penalty is morally appropriate.
Evidence is inadmissible if it does not pertain to a defendant’s individual character
and record, but pertains solely to the death penalty generally, such as how death is
inflicted (see People v. Harris (1981) 28 Cal.3d 935, 962) or to future conditions
of confinement for one sentenced to life without possibility of parole (see People
v. Daniels, supra, 52 Cal.3d at pp. 877-878).
C. Exclusion of Testimony That Witness Believed Defendant Should
not be Executed
Defendant’s family hired educational therapist Janice Foster to help
defendant with his learning problems from 1984 through 1987, when defendant
was 15 to 17 years old. Called as a defense witness, she testified that she liked
defendant because he was eager and friendly, but that socially and emotionally he
was much younger than his chronological age and lacked a fundamental
understanding of the effects of his conduct. When asked whether she wanted “to
see [defendant] in the gas chamber,” she answered: “[he is] a very young person
in his mind. . . . It’s horrible when a child dies.” The prosecution objected and
moved to strike the testimony. The defense made an offer of proof: Foster would
testify that she thought the death penalty was not appropriate for defendant
because she considered him the equivalent of a child, and killing a child was not
appropriate. The trial court, after noting that there was no authority directly on
point, granted the prosecutor’s motion on the ground that “third party witnesses
ought not to be able to testify concerning the justice of one penalty or another.”
In People v. Sanders (1995) 11 Cal.4th 475, we concluded that the trial
court did not err in refusing to permit the defendant’s sister to testify that she did
not want him executed. We rejected the argument that the evidence was
admissible under factor (k) of section 190.3, which allows admission of evidence
relating to any aspect of a defendant’s character or record that the defendant
proffers as a basis for a sentence less than death. “The specific questions whether
family members would prefer that defendant not be executed,” we said, “are not
. . . strictly relevant to the defendant’s character, record, or individual personality.”
(People v. Sanders, supra, 11 Cal.4th at p. 546.) Three years later, however, we
held in People v. Ochoa (1998) 19 Cal.4th 353, 456: “A defendant may offer
evidence that he or she is loved by family members or others, and that these
individuals want him or her to live. . . . [T]his evidence is relevant because it
constitutes indirect evidence of the defendant’s character.”
This issue arose again in People v. [Gregory Calvin] Smith (2003) 30
Cal.4th 581. There, the defendant’s former attorney proposed to testify. The
testimony, defense counsel said, was “ ‘not character testimony,’ ” but former
counsel’s “opinion regarding the ‘appropriateness of the death penalty . . . given
the crime.’ ” (Id. at p. 632.) We acknowledged that “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.” (Id., at p.
631.) We questioned whether an attorney-client relationship qualified as a
significant relationship and lead to such indirect evidence of character, but did not
decide that question. Instead, we held the evidence was inadmissible because “the
opinion of a witness, expert or otherwise, that a life sentence is appropriate is not
relevant except to the extent that it might provide insight into the defendant’s
character.” (Id. at p. 632.)
From these cases we can distill a general rule: evidence that a family
member or friend wants the defendant to live is admissible to the extent it relates
to the defendant’s character, but not if it merely relates to the impact of the
execution on the witness. Here the relevance of Janice Foster’s testimony to
defendant’s character and personality is clear, because Foster’s opinion was based
on her familiarity with defendant’s emotional and social immaturity, a recognized
Admissibility of course requires that the witness have a significant
relationship with the defendant. Here, Janice Foster’s three-year tutorial
relationship with defendant qualifies. Neither the prosecutor’s objection to her
testimony, nor the trial court’s ruling excluding that testimony, was based on the
nature of her relationship with defendant.
Instead, the prosecutor’s objection and the court’s ruling were based on the
position that opinion on the appropriateness of the death penalty – either generally
or in this particular case – was inadmissible. But People v. Smith, supra, 30
Cal.4th 581, makes it clear that the opinion of a witness who has a significant
relationship with a defendant as to the appropriateness of the death penalty for that
defendant is relevant “to the extent that it provides insight into the defendant’s
character.” (Id., at p. 632.) Because Foster had such a significant relationship,
and her opinion was based on a feature of defendant’s character that she had
personally observed, we conclude that her opinion was relevant and admissible.
Thus, the trial court erred in excluding Foster’s testimony. We use the
Chapman test in evaluating the effect of erroneously excluding mitigating
evidence; reversal is required “ ‘unless the state proves beyond a reasonable doubt
that the error complained of did not contribute to the verdict obtained.’ ” (People
v. Lucero (1988) 44 Cal.3d 1006, 1032, quoting Chapman v. California (1967)
386 U.S. 18, 24; see People v. Brown (2003) 31 Cal.4th 518, 576.) Applying this
standard, we conclude that the error was harmless. Foster’s opinion that defendant
should not be executed was relevant only as it provided indirect evidence of
defendant’s character. But Foster was permitted to provide direct evidence about
his character, including his immaturity, and this mitigating factor was argued to
the jury. There is no reason to believe that Foster’s opinion that defendant’s
immaturity made the death penalty inappropriate would have affected the verdict.
D. Evidence of Prior Violent Acts
We earlier summarized the evidence of four prior violent acts by defendant.
(See pp. 3-4, ante.) Evidence of unadjudicated violent acts is admissible under
section 190.3, factor (b). (See People v. Michaels, supra, 28 Cal.4th at p. 541;
People v. Carpenter, supra, 15 Cal.4th at p. 401.)
In two memorandum opinions dissenting from the denial of certiorari,
United States Supreme Court Justice Thurgood Marshall questioned whether
evidence of unadjudicated violent acts should be excluded as unreliable. (See
Robertson v. California (1989) 493 U.S. 879; Williams v. Lynbaugh (1987) 484
U.S. 935.) Citing those opinions, defendant argues that the admission of this
evidence violated his rights under the Eighth and Fourteenth Amendments to the
federal Constitution. We rejected a similar contention in People v. Koontz (2002)
27 Cal.4th 1041, 1095, and in People v. Kraft (2000) 23 Cal.4th 978, 1078.
Defendant argues that his previous crimes, in particular the alleged false
imprisonment of young Brian Francis and the alleged battery of young Brian Due,
are such trivial matters that they have little bearing on the appropriateness of the
death penalty. He questions whether these acts constituted crimes, maintaining
that they are simply incidents of children’s play. But defendant’s act of holding
Brian Francis to a wall and threatening to hit him with a ball if he tried to run
constitutes false imprisonment (see § 236; People v. Bamba (1997) 58
Cal.App.4th 1113, 1123); and defendant’s act of choking Brian Due is a battery
(see People v. Rocha (1971) 3 Cal.3d 893, 900, fn. 12). Whether those acts were
serious enough to be given weight in the penalty determination is a matter for the
jury to decide.
VII. ISSUES RELATING TO THE METHOD
OF DETERMINING PENALTY
A. The Listing of Aggravating and Mitigating Factors
CALJIC No. 8.85 lists the factors to be considered by the jury in making its
penalty decision. Defendant contends that the trial court should have deleted those
factors inapplicable to this case. We rejected that contention in People v. Sapp
(2003) 31 Cal.4th 240, 315, People v. Carpenter, supra, 15 Cal.4th at page 421,
People v. Ghent, supra, 43 Cal.3d at pages 776-777, and in many other cases.
Defendant proposed a special jury instruction stating that the only
applicable aggravating factors in this case were the circumstances of the murder
and other criminal activity involving force or violence. The trial court did not err
in rejecting this instruction. We have repeatedly said that a trial court need not
specify whether factors are aggravating or mitigating. (See People v. Pollock,
supra, 32 Cal.4th 1153, 1193; People v Davenport (1995) 11 Cal.4th 1171, 1230;
People v. Sanders, supra, 11 Cal.4th at p. 561.) In any event, here both the
prosecutor and defense counsel said to the jury in closing argument that the
circumstances of the crime and other violent criminal activity were the only
The trial court rejected defendant’s proposed special instruction No. 4,
which stated: “The absence of prior felony convictions is a significant mitigating
circumstance in a capital case, where the accused frequently has an extensive
criminal past.” The trial court, however, did instruct the jury to consider “the
presence or absence of any prior felony or misdemeanor conviction.”8 Thus, the
CALJIC No. 8.85, incorporating section 190.3, factor (c), directs the jury to
consider the presence or absence of prior felony convictions. At defendant’s
request, the trial court modified this instruction to include misdemeanor
jurors were told that they could consider defendant’s lack of prior convictions as a
mitigating consideration. Whether it was a “significant” consideration was a
matter for the jurors to determine.
B. The Weighing of Aggravating and Mitigating Factors
1. Defendant’s objections to CALJIC No. 8.88
CALJIC No. 8.88 explains to the jury how it should arrive at the penalty
decision. Defendant asserts this instruction violates his rights under the Fifth,
Sixth, Eighth, and Fourteenth Amendments to the federal Constitution.
He argues that CALJIC No. 8.88’s language, directing the jury to determine
whether aggravation “so outweighs” mitigation as to warrant death, is
unconstitutionally vague. We rejected that contention in People v. Davenport,
supra, 11 Cal.4th 1171, 1231, and in People v. Breaux (1991) 1 Cal.4th 281, 315-
316. The phrase used in CALJIC No. 8.88, or words of similar breadth, are
essential to avoid reducing the penalty decision to a mere mechanical calculation.
(See People v. Brown, supra, 40 Cal.3d at p. 541.)
Defendant contends that CALJIC No. 8.88 is incorrect because it refers to
whether the death penalty is “warranted” instead of whether it is “appropriate.” In
People v. Arias (1996) 13 Cal.4th 92, 171, however, we concluded: “By advising
that a death verdict should be returned only if aggravation is ‘so substantial in
comparison with’ mitigation that death is ‘warranted,’ the instruction clearly
admonishes the jury to determine whether the balance of aggravation and
mitigation makes death the appropriate penalty.”
Defendant also contends that CALJIC No. 8.88 does not convey to the jury
that a life sentence is mandatory if aggravation does not outweigh mitigation. We
disagree. The standard instruction permits a death penalty only if aggravation is
so substantial in comparison with mitigation that death is warranted; if aggravation
failed even to outweigh mitigation, it could not reach this level. (See People v.
Medina (1995) 11 Cal.4th 694, 781.) Here, moreover, the trial court gave an
additional instruction that made the matter quite clear; the court told the jury:
“You must return a verdict of life without the possibility of parole if the mitigating
circumstances outweigh or are equal to the aggravating circumstances.”
Defendant further contends that CALJIC No. 8.88 implies that death is the
only appropriate sentence if aggravation is “so substantial in comparison with the
mitigating circumstances that it warrants death instead of life without parole.” He
insists that this language is inconsistent with the principle that the jury can return a
life verdict even if aggravating circumstances outweigh those in mitigation. (See
People v. Brown, supra, 40 Cal.3d at pp. 538-541.) There is no inconsistency. A
jury is free to return a life verdict even if aggravation outweighs mitigation. But
the jury is not free to return a life verdict regardless of the evidence. If
aggravating circumstances are so substantial in comparison with mitigating
circumstances as to warrant the death penalty, then death is the appropriate
penalty. (People v. Arias, supra, 13 Cal.4th at p. 171.)
Finally, defendant argues that the instruction failed to inform the penalty
jury of the burden of persuasion. There is no penalty phase burden of persuasion.
(See People v. Carpenter, supra, 15 Cal.4th 312, 417-418.) The trial court
correctly rejected defendant’s proposed supplemental special instruction L, which
would have told the jury that if it had a reasonable doubt as to which penalty to
impose, it must return a verdict of life imprisonment without possibility of parole.
(See People v. Jones (2003) 30 Cal.4th 1084, 1127; People v. Sanchez (1995) 12
Cal.4th 1, 80-81; People v. Williams (1988) 44 Cal.3d 883, 960.)
2. Defendant’s proposed supplemental instructions
Defendant’s proposed special instruction B stated: “The jury has the option
to reject death if the evidence arouses sympathy, mercy, or compassion to the
point that they jury feels that death is not the proper penalty in this case.” This
instruction was largely duplicative of defendant’s special instruction No. 6, which
the trial court accepted. That instruction told the jury that it could consider “any
sympathetic, compassionate, merciful, or other aspect of Defendant’s background,
character, record, or social, psychological or medical history, that the Defendant
offers as a basis for a sentence less than death, whether or not related to the
offense for which he is on trial.” In any event, CALJIC No. 8.88 adequately
informed the jurors that they could consider sympathy, mercy, and compassion in
deciding whether death was the appropriate penalty. (See People v. Bolin (1998)
18 Cal.4th 297, 343-344.) Thus the trial court did not err in rejecting Defendant’s
special instruction B.
The trial court also rejected defendant’s proposed special instruction H:
“The weight to be given to the factors in aggravation and mitigation is a matter for
each juror to determine . . . [and accordingly] one mitigating factor can sometimes
outweigh a number of aggravating factors.” The trial court gave a jury instruction
based on CALJIC No. 8.88, which told the jurors: “You are free to assign
whatever moral or sympathetic value you deem appropriate to each and all of the
various factors you are permitted to consider.” The instruction then told the
jurors: “You may, but are not required to return a judgment of death if each of
you are persuaded that the aggravating circumstances are so substantial in
comparison with the mitigating circumstances that it warrants death instead of life
without parole.” In People v. Bolin, supra, 18 Cal.4th at page 343, we held that
such instructions satisfied the constitutional requirement to advise the jury of its
3. The prosecutor’s comment on CALJIC No. 8.88 during closing
During closing argument, the prosecutor read CALJIC No. 8.88 to the jury
and commented upon it: “There are really two components to this process. One
is, is the death penalty appropriate in your mind? And second, do the aggravating
factors outweigh the mitigating factors, which is our true burden in this case,
proving that the aggravating factors outweigh the mitigating factors. And if it is
both appropriate and if the aggravating factors outweigh the mitigating factors,
then you should vote for death.” The trial court overruled defendant’s objection
that the prosecutor had misstated the law.
The prosecutor’s argument correctly explained the weighing process under
CALJIC No. 8.88: the jury weighs the aggravating circumstances as compared to
the mitigating circumstances and determines whether the death penalty is
appropriate. (See People v. Brown, supra, 40 Cal.3d at pp. 538-539.) It is true
that the prosecutor’s “burden” — if such a term applies to a trial in which neither
side has the burden of proof — is not merely to show that aggravation outweighs
mitigation, but to show it outweighs it to such an extent that death is the
appropriate penalty. But there is no indication that the jury was misled thereby.
The trial court correctly instructed the jury under CALJIC No. 8.88; we presume
that the jury followed that instruction. (People v. Sanchez, supra, 12 Cal.4th at
p.70.) The prosecutor quoted CALJIC No. 8.88 in his argument to the jury, and he
told the jurors that they must decide whether the death penalty was the appropriate
punishment whether or not the aggravating factors outweighed the mitigating
factors. Looking to the instructions and the prosecutor’s closing argument as a
whole, we conclude that it is not reasonably likely that the jurors were misled.
(See People v. Crew (2003) 31 Cal.4th 822, 848; People v. Bonin (1989) 47
Cal.3d 808, 856-857.)
VIII. ALLEGED PROSECUTORIAL MISCONDUCT IN CLOSING ARGUMENT
In his closing argument to the jury, the prosecutor made these comments on
the arguments of defense counsel: “ ‘You don’t do this crime unless there’s
something wrong with you.’ That was one of [defense counsel’s] statements. . . .
[T]he logical conclusion from that would be what? It would be the worse the crime,
the less people should get the death penalty because the worse the crime, . . . the
more that’s proof that there’s something wrong with somebody. . . . I suppose by
[defense counsel’s] reasoning, we should say if Hitler were alive, he shouldn’t get
the death penalty because there must really be something wrong with a guy who
commits mass murder and puts millions of people to death in gas chambers.”
Defendant objected to the reference to Hitler. The trial court overruled the
objection. It observed: “The Hitler argument is prohibited when it comes with
respect to a comparison to the defendant, which was not done. . . . That wasn’t done
here. It was an extrapolation in argument that may be met with other argument.”
We agree with the trial court. The prosecutor was not comparing defendant
to Hitler, but was simply testing the logic of the defense argument. (See People v.
McDermott (2002) 28 Cal.4th 946, 1003.)
IX. CUMULATIVE PREJUDICE
Earlier, we identified two errors: (1) the court’s refusal to permit witness
Foster to testify that she did not want defendant to be executed, and her reasons
for that opinion (ante, at pp. 32-34) and (2) the trial court’s failure to sustain an
objection to the prosecutor’s assertion at closing argument that “we know” facts
were not matters of direct proof, but only of inference (ante, at pp. 23-24). The
first is the most serious error but, as we explained earlier, the exclusion of this
evidence could not have affected the outcome of the trial. (See ante, at p. 34.)
The prosecutor’s “we know” comments, even if construed as going beyond the
evidence, were effectively cured by his later comments. (See ante, at p. 24.) We
conclude that it is not reasonably possible (People v. Michaels, supra, 28 Cal.4th
at p. 541; People v. Jackson (1996) 13 Cal. 4th 1164, 1232) that these errors,
individually or in combination, affected the result of the trial.
X. CONSTITUTIONALITY OF THE CALIFORNIA DEATH PENALTY STATUTE
Citing the Fifth, Sixth, Eighth, and Fourteen Amendments to the federal
Constitution, defendant raises numerous constitutional objections to the California
death penalty law. All have been previously rejected in decisions of this court.
Neither the breadth of “circumstances of the crime” in factor (a) of section
190.3, nor disagreement about what circumstances are aggravating, results in
arbitrary and capricious application of the death penalty. (See Tuilaepa v.
California, supra, 512 U.S. at pp. 975-976; People v. Jenkins (2000) 22 Cal.4th
Defendant has not shown that the California law fails adequately to narrow
the class of persons eligible for the death penalty. (See People v. Michaels, supra,
28 Cal.4th at p. 541; People v. Wader (1993) 5 Cal.4th 610, 669.)
The federal Constitution does not require that a state death penalty law
impose a burden of proof on the prosecution to prove death is the appropriate
penalty, either beyond a reasonable doubt (see People v. Arias, supra, 13 Cal.4th
at p. 190), or by a preponderance of the evidence (see People v. Hayes (1990) 52
Cal.3d 577, 643). Because no burden of proof is required at the penalty phase (see
ante, at p. 38), the law is not invalid for failing to require an instruction on burden
of proof. (See People v. Michaels, supra, 28 Cal.4th at p. 541; People v. Ochoa,
supra, 26 Cal.4th at pp. 452-454.) Neither is it invalid because it does not require
an instruction that certain factors can only be mitigating. (People v. Espinoza
(1992) 3 Cal.4th 806, 827; see also ante, at pp. 35-36.)
The jury is not required to agree unanimously on what aggravating factors
exist. (People v. Danks (2004) 32 Cal.4th 269, 316; People v. Taylor (1990) 52
Cal.3d 719, 749.) No written findings are required. (People v. Davenport, supra,
11 Cal.4th at p. 1232; People v. Yeoman, supra, 31 Cal.3d at p. 165.)
California’s death penalty law is not unconstitutional because it permits the
jury to consider evidence of unadjudicated criminal activity (see ante, at pp. 34-
35), does not require the prosecution to prove such activity beyond a reasonable
doubt (People v. Ochoa, supra, 26 Cal.4th at p. 453), and does not require the jury
to find such activity by a unanimous verdict (People v. Michaels, supra, 28
Cal.4th at pp. 541-542; People v. Alcala (1992) 4 Cal.4th 742, 809).
The terms “extreme mental or emotional disturbance” in section 190.3,
factor (d), “extreme duress” and “substantial domination” in factor (g) (italics
added) do not render the statute invalid. (People v. Jones, supra, 15 Cal.4th at
p. 190 [factor (d)]; People v. Visciotti (1992)2 Cal.4th 1, 73-75 [“extreme duress”
in factor (g)]; People v. Adcox (1988) 47 Cal.3d 207, 270 [“substantial
domination” in factor (g)].)
The absence of intercase proportionality review does not invalidate
California’s death penalty. (See People v. Lenart (2004) 32 Cal.4th 1107, 1131;
People v. Michaels, supra, 28 Cal.4th at p. 541; People v. Anderson (2001) 25
Cal.4th 543, 602.) The death penalty law does not deny capital defendants equal
protection because it provides a different method of determining the sentence than
is used in noncapital cases. (People v. Cox, supra, 53 Cal.3d at p. 691; People v.
Williams (1988) 45 Cal.3d 1268, 1330.)
Finally, defendant contends that California’s death penalty law violates
international norms. But “international law does not prohibit a sentence of death
rendered in accordance with state and federal constitutional and statutory
requirements.” (People v. Hillhouse (2002) 27 Cal.4th 469, 511; see People v.
Bolden (2002) 29 Cal.4th 515, 567.)
The judgment is affirmed.
GEORGE, C. J.
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. S026223
Date Filed: March 10, 2005
Judge: Steven Z. Perren
Attorneys for Appellant:
Lynne S. Coffin and Michael J. Hersek, State Public Defenders, under appointments by the Supreme Court,
and William Hassler, Deputy State Public Defender, for Defendant and Appellant.
Attorneys for Respondent:
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C.
Hamanaka, Assistant Attorney General, John R. Gorey, William T. Harter and Susan Sullivan Pithey,
Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Deputy State Public Defender
221 Main Street, Tenth Floor
San Francisco, CA 94105
Susan Sullivan Pithey
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
|1||The People (Respondent)|
Represented by Attorney General - Los Angeles Office
Susan Sullivan Pithey, Deputy Attorney General
300 South Spring Street, Suite 500
Los Angeles, CA
|2||Smith, Gregory Scott (Appellant)|
San Quentin State Prison
Represented by Chuck Nacsin
Attorney at Law
350 W. Fifth Street, #101
San Bernardino, CA
|3||Smith, Gregory Scott (Appellant)|
San Quentin State Prison
Represented by Office Of The State Public Defender-Sf
William Hassler, Deputy State Public Defender
221 Main Street, 10th Floor
San Francisco, CA
|Mar 10 2005||Opinion: Affirmed|
|Apr 3 1992||Judgment of death|
|Apr 20 1992||Filed certified copy of Judgment of Death Rendered|
|Apr 27 1992||Application for Extension of Time filed|
By Court Reporter (Betty Kane) to Complete R.T.
|Apr 28 1992||Extension of Time application Granted|
To Court Reporter (Betty Kane) To Complete R.T.
|Mar 6 1998||Order appointing State Public Defender filed|
Upon request of appellant for appointment of counsel, the State Public Defender is hereby appointed to represent appellant on his automatic appeal now pending in this court.
|Apr 15 1998||Application for Extension of Time filed|
By Applt to request correction of the Record.
|Apr 17 1998||Extension of Time application Granted|
To 6-15-98 To request Record correction
|Jun 15 1998||Application for Extension of Time filed|
By Applt to request Record correction
|Jun 17 1998||Extension of Time application Granted|
To 8-17-98 To request Record correction
|Aug 14 1998||Application for Extension of Time filed|
By Applt to request correction of the Record.
|Aug 18 1998||Filed:|
Amended Decl of Service of Applic. for Eot.
|Aug 18 1998||Filed:|
Suppl Decl of Peter Silten in support of Applic. for Ext. of Time.
|Aug 20 1998||Extension of Time application Granted|
To Applt To 10-16-98 To request Corr. of Record.
|Oct 14 1998||Application for Extension of Time filed|
By Applt to request Record correction
|Oct 20 1998||Extension of Time application Granted|
To 12-15-98 To request Record correction
|Dec 11 1998||Application for Extension of Time filed|
By Applt to request correction of the Record.
|Dec 30 1998||Extension of Time application Granted|
To 2-16-99 To request Record correction
|Feb 11 1999||Application for Extension of Time filed|
By Applt to request correction of the Record.
|Feb 22 1999||Extension of Time application Granted|
To 4-19-99 To request Record correction no further Extensions of time Are Contemplated
|Apr 21 1999||Received:|
Copy of Applt's motion to correct, Augment and Settle the Record (22 Pp.)
|Aug 31 2000||Counsel's status report received (confidential)|
from State P.D.
|Nov 2 2000||Counsel's status report received (confidential)|
from State P.D.
|Jan 11 2001||Counsel's status report received (confidential)|
from State P.D.
|Mar 12 2001||Counsel's status report received (confidential)|
from State P.D.
|May 9 2001||Counsel's status report received (confidential)|
from State P.D.
|Jul 9 2001||Counsel's status report received (confidential)|
from State P.D.
|Aug 13 2001||Note:|
The record on appeal was returned to Ventura County Sueprior Court on 8/13/2001, to correct the following: Sealed documents listed in the CT were not transmitted, Pp. 13-3186 through 13-3191 excluding Pp. 13-3188. First Supplemental CT has chronological index only. Probation Officer's report was not transmitted in a sealed envelope. There was no original certificate signed by the Judge certifying the record to this court. RT master index is chronological only. No index for second supplemental RT.
|Sep 10 2001||Counsel's status report received (confidential)|
from State P.D.
|Nov 9 2001||Counsel's status report received (confidential)|
from State P.D.
|Dec 6 2001||Record on appeal filed|
C-34 (7948 pp.) and R-57 (9571 pp.) including material under seal. CT includes 3295 pp. of juror questionnaires.
|Dec 6 2001||Appellant's opening brief letter sent, due:|
January 15, 2002.
|Jan 7 2002||Counsel's status report received (confidential)|
from State P.D.
|Jan 14 2002||Request for extension of time filed|
To file AOB. (1st request)
|Jan 15 2002||Extension of time granted|
To 3/18/2002 to file AOB.
|Mar 8 2002||Counsel's status report received (confidential)|
from State P.D.
|Mar 15 2002||Request for extension of time filed|
To file AOB.(2nd request)
|Mar 19 2002||Extension of time granted|
To 5/17/2002 to file AOB.
|May 6 2002||Counsel's status report received (confidential)|
from State P.D.
|May 17 2002||Request for extension of time filed|
To file AOB. (3rd request)
|May 20 2002||Extension of time granted|
To 7/16/2002 to file AOB.
|Jul 8 2002||Counsel's status report received (confidential)|
from State P.D.
|Jul 16 2002||Request for extension of time filed|
To file AOB. (4th request)
|Jul 22 2002||Extension of time granted|
To 9/16/2002 to file AOB.
|Sep 6 2002||Counsel's status report received (confidential)|
from State P.D.
|Sep 17 2002||Request for extension of time filed|
To file appellant's opening brief. (5th request)
|Sep 19 2002||Extension of time granted|
To 11/15/2002 to file appellant's opening brief. After that date, only one further extension totaling about 45 additional days is contemplated. Extension is granted based upon Deputy State Public Defender William Hassler's representation that he anticipates filing that brief by 12/31/2002.
|Nov 5 2002||Counsel's status report received (confidential)|
from State P.D.
|Nov 15 2002||Request for extension of time filed|
To file appellant's opening brief. (6th request)
|Nov 19 2002||Extension of time granted|
To 1/14/2003 to file appellant's opening brief. After that date, only one further extension totaling about 15 additional days will be granted. Extension is granted based upon Deputy State Public Defender William Hassler's representation that he anticipates filing that brief by 1/30/2003.
|Jan 3 2003||Counsel's status report received (confidential)|
from State P.D.
|Jan 8 2003||Request for extension of time filed|
to file appellant's opening brief. (7th request)
|Jan 14 2003||Extension of time granted|
To 1/29/2003 to file appellant's opening brief. Extension is granted based upon Deputy State Public Defender William Hassler's representation that he anticipates filing that brief by 1/29/2003. After that date, no further extension will be granted.
|Jan 29 2003||Appellant's opening brief filed|
|Feb 25 2003||Request for extension of time filed|
to file respondent's brief. (1st reqeust)
|Feb 28 2003||Extension of time granted|
to 4/29/2003 to file respondent's brief.
|Mar 3 2003||Counsel's status report received (confidential)|
from State P.D.
|Apr 22 2003||Request for extension of time filed|
to file respondent's brief. (2nd request)
|May 7 2003||Respondent's brief filed|
|May 8 2003||Extension of time granted|
to 5/28/2003 to file respondent's brief. Extension is granted based upon Supervising Deputy Attorney General William T. Harter's representation that he anticipates filing that brief by 5/28/2003. After that date, no further extension is contemplated.
|May 12 2003||Filed:|
Notice of Errata re: respondent's brief.
|May 22 2003||Request for extension of time filed|
to file appellant's reply brief. (1st request)
|May 27 2003||Extension of time granted|
to 7/28/2003 to file appellant's reply brief.
|Jul 24 2003||Request for extension of time filed|
to file reply brief. (2nd request)
|Jul 28 2003||Filed:|
supplemental declaration of William Hassler in support of applic. for extension of time to file reply brief.
|Jul 31 2003||Extension of time granted|
to 9-29-2003 to file reply brief. After that date, no further extension will be granted. Extension granted based upon Deputy State P.D. William Hassler's representation that he anticipates filing the brief by 9-27-2003.
|Sep 26 2003||Appellant's reply brief filed|
|Nov 10 2004||Oral argument letter sent|
advising counsel that court could schedule case for argument as early as the January calendar, to be held the week of January 3, 2005, in San Francisco. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument.
|Dec 8 2004||Case ordered on calendar|
1/4/05 @1:30pm - San Francisco
|Dec 15 2004||Filed letter from:|
appellant's counsel, dated 12/14/2004, re focus issues for oral argument.
|Dec 21 2004||Motion filed (AA)|
appellant's motion for permission to file supplemental letter brief. (6 pp letter brief submitted under separate cover)
|Dec 21 2004||Filed letter from:|
respondent, dated 12/17/2004, re focus issues for oral argument and request for 45 minutes for argument.
|Dec 23 2004||Order filed|
Appellant's motion for permission to file supplemental letter brief is granted. Any answer letter brief is to be served and filed on or before 12/30/2004.
|Dec 23 2004||Letter brief filed|
appellant's supplemental letter brief. (6 pp.)
|Dec 30 2004||Letter brief filed|
respondent's supplemental letter brief. (5 pp.)
|Jan 4 2005||Cause argued and submitted|
|Mar 10 2005||Opinion filed: Judgment affirmed in full|
Opinion by Kennard, J. -----joined by George, C.J., Baxter, Werdegar, Chin, Brown, & Moreno, J.J.
|Mar 25 2005||Request for modification of opinion filed|
by California Public Defenders Association. (4 pp.)
|Mar 25 2005||Rehearing petition filed|
and request for modification (appellant's) (5,145 words; 16 pp.)
|Mar 30 2005||Time extended to consider modification or rehearing|
to 6/8/2005, or the date upon which rehearing is either granted or denied, whichever occurs first.
|Apr 4 2005||Request for modification of opinion filed|
by Timotny J. Foley, Jolie Lipsig, Wes Van Winkle, Cliff Gardner, James S. Thomson and Elisabeth Semel. (8 pp.)
|Apr 13 2005||Filed:|
respondent's response to amicus curiae modification requests filed on 3-25-2005 and 4-4-2005.
|Apr 27 2005||Opinion modified - no change in judgment|
|Apr 27 2005||Rehearing denied|
Opinion modified. Petition for rehearing DENIED.
|Apr 27 2005||Remittitur issued (AA)|
|May 9 2005||Received:|
acknowledgment of receipt of remittitur.
|Jul 26 2005||Received:|
copy of appellant's cert petition. (15 pp. - excluding attached appendices)
|Aug 3 2005||Received:|
Letter from U.S.S.C., dated 7/29/2005, advising cert petition filed on 7/25/2005 as No. 05-5540.
|Oct 18 2005||Related habeas corpus petition filed (post-judgment)|
by the California Appellate Project (CAP-S.F.), no. S138147
|Oct 31 2005||Certiorari denied by U.S. Supreme Court|
|Feb 1 2006||Order filed|
Upon request of condemned prisoner Gregory Scott Smith for appointment of counsel, Chuck Nacsin is hereby appointed to represent Gregory Scott Smith for habeas corpus/executive clemency proceedings related to the above automatic appeal now final in this court. Any "petition for writ of habeas corpus will be presumed to be filed without substantial delay if it is filed. . .within 36 months" of this date (Supreme Ct. Policies Regarding Cases Arising From Judgments of Death, policy 3, timeliness std. 1-1.1), and it will be presumed that any successive petition filed within that period is justified or excused (see In re Clark (1993) 5 Cal.4th 750, 774-782), in light of this court's delay in appointing habeas corpus/executive clemency counsel on behalf of condemned prisoner Gregory Scott Smith. Chin, J., was absent and did not participate.
|Feb 2 2006||Compensation awarded counsel|
|Apr 5 2006||Counsel's status report received (confidential)|
from atty Nacsin.
|Jun 8 2006||Counsel's status report received (confidential)|
from atty Nacsin.
|Jul 6 2006||Compensation awarded counsel|
|Aug 10 2006||Counsel's status report received (confidential)|
from atty Nacsin.
|Sep 13 2006||Compensation awarded counsel|
|Apr 17 2007||Counsel's status report received (confidential)|
from atty Nacsin.
|Aug 15 2007||Counsel's status report received (confidential)|
from atty Nacsin.
|Oct 18 2007||Counsel's status report received (confidential)|
from atty Nacsin.
|Oct 25 2007||Compensation awarded counsel|
|Jan 17 2008||Compensation awarded counsel|
|May 2 2008||Filed:|
confidential declaration of attorney Nacsin.
|Jun 18 2008||Compensation awarded counsel|
|Oct 29 2008||Compensation awarded counsel|
|Nov 7 2008||Compensation awarded counsel|
|Feb 25 2009||Compensation awarded counsel|
|Feb 26 2009||Compensation awarded counsel|
|Mar 19 2009||Compensation awarded counsel|
|Apr 17 2009||Compensation awarded counsel|
|Jan 29 2003||Appellant's opening brief filed|
|May 7 2003||Respondent's brief filed|
|Sep 26 2003||Appellant's reply brief filed|