Supreme Court of California Justia
Docket No. S035348

People v. Smith



Filed 2/5/07





IN THE SUPREME COURT OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

S035348

v.

ROBERT LEE SMITH,

Contra Costa County

Defendant and Appellant.

Super. Ct. No. 911489-3




A jury convicted defendant Robert Lee Smith of the first degree murders of

Michelle Dorsey and James Martin (Pen. Code, § 187), among other offenses, and

found true the special circumstance allegations that defendant committed multiple

murders (Pen. Code, § 190.2, subd. (a)(3)) and that each murder was committed

during the commission of a robbery (Pen. Code, §§ 190.2, subd. (a)(17)(A), 211).

Following a sanity phase held pursuant to defendant’s plea of not guilty by reason

of insanity, the jury returned a verdict that defendant was sane at the time of the

offenses. After the penalty phase of the trial, the jury returned a verdict of death.

This appeal is automatic. (Pen. Code, § 1239, subd. (b).) As explained below, we

will reverse defendant’s conviction for receiving stolen property (Pen. Code, §

496, former subd. (1), now subd. (a)) and otherwise affirm the judgment.

1




I. STATEMENT OF FACTS

A. Procedural History

On June 18, 1991, the Contra Costa County District Attorney filed a 10-

count information in Contra Costa County Superior Court, charging defendant

with the following: two counts of first degree murder (of Michelle Dorsey and

James Martin) in violation of Penal Code section 187; attempted robbery in

violation of Penal Code sections 211, 212.5, subdivision (a), and 664; robbery in

violation of Penal Code sections 211 and 212.5, subdivision (a); unlawful taking

of a vehicle in violation of Vehicle Code section 10851, subdivision (a); first

degree burglary in violation of Penal Code sections 459 and 460, former

subdivision 1, now subdivision (a); possession of a controlled substance in

violation of Health and Safety Code section 11350; receiving stolen property in

violation of Penal Code section 496, former subdivision (1), now subdivision (a);

petty theft in violation of Penal Code sections 484 and 488; and conspiracy to

commit murder in violation of Penal Code section 182.1.

The information further alleged that defendant personally used a firearm in

violation of Penal Code section 12022.5, subdivision (a),1 in connection with the

charge of receiving stolen property. Additionally, the information alleged as

special circumstances that defendant committed multiple first degree murders

under section 190.2, subdivision (a)(3), and that defendant committed murder in

the course of a robbery under section 190.2, subdivision (a)(17)(A).

On July 8, 1991, defendant pled not guilty to all counts of the information

and denied the special circumstance and firearm-use allegations. Subsequently,

defendant filed a motion to set aside the information pursuant to section 995 and a


1

All further undesignated statutory references are to the Penal Code.

2



nonstatutory motion to dismiss. The trial court dismissed the count alleging that

defendant had committed petty theft and denied the remainder of defendant’s

motion to dismiss the information. The trial court also denied defendant’s motion

to sever the burglary and conspiracy counts.

On March 25, 1993, defendant entered a plea of not guilty by reason of

insanity to all counts and allegations of the information, pursuant to section 1026.

The guilt phase jury trial commenced on April 20, 1993. On May 27, 1993, the

jury convicted defendant of all remaining counts and found true the weapon

allegation and all special circumstance allegations.

The sanity trial commenced on June 8, 1993. On June 22, 1993, the jury

found that defendant was legally sane at the time of the charged offenses. The

penalty phase began on June 23, 1993. On July 6, 1993, the jury determined the

death penalty should be imposed. The trial court sentenced defendant to death for

the murders and to an indeterminate term of 25 years to life on the conspiracy

charge. In addition, the trial court imposed a determinate term of three years for

the remaining counts, to be served concurrently with the indeterminate term.

Pursuant to section 654, the court stayed the imposition of sentence on the above

counts, pending the automatic appeal and the death sentence being carried out.

On September 30, 1993, the trial court denied defendant’s automatic

application to modify the death verdict. After considering defendant’s motion for

a new trial, the trial court dismissed the firearm enhancement allegation due to

insufficient evidence, but otherwise denied defendant’s motion. This appeal is

automatic.

3



B. Guilt Phase Evidence

1. Prosecution Evidence

Michelle Dorsey lived with her brother, James Martin, in a two-bedroom

apartment in Richmond.2 Joseph A. had known the victims since he was about

five years old, visiting them several times a month, and had considered Dorsey his

godmother. Defendant’s brother, Jesse Smith, told the police that defendant and

Dorsey had a “boyfriend, girlfriend type of relationship” and that Dorsey was

defendant’s ex-girlfriend.

Joseph, who was 14 years old at the time, went to visit Dorsey on the day

of the murders, March 23, 1991. He found Dorsey in her bedroom, with defendant

sitting at the foot of her bed. They were watching television, and Joseph joined

them. After some time, defendant called Joseph to the living room and showed

him a pistol and ammunition clip he had taken from Dorsey’s dresser. At this

time, Joseph thought that Dorsey probably was asleep. Defendant asked whether

Joseph had ever considered robbing Dorsey and Martin, and Joseph replied that he

had not. Nonetheless, Joseph took the pistol from defendant, loaded bullets into

the clip, and handed the pistol back to defendant. Joseph believed that defendant

would return the gun to the dresser.

Joseph followed defendant to Dorsey’s bedroom. Defendant asked Dorsey

for the combination to the safe she kept in her bedroom. Dorsey noticed defendant

holding the gun and demanded that he give the gun back to her. When Dorsey

rose to confront defendant, he shot her once in the chest. Dorsey fell to her knees

on her bed.

The shot woke Martin, who called out from his room to find out what was

happening. Defendant told Martin to go back to sleep. Defendant and Joseph


2

Michelle Dorsey was a biological male who dressed and lived as a female.

In this opinion, we will refer to Dorsey as a female.

4



walked to the doorway of Martin’s room, and, according to Joseph, defendant shot

Martin once in the chest. At defendant’s direction, Joseph carried Martin into the

hallway. While Martin lay on the floor, still alive, defendant took money out of

Martin’s wallet. He then told Joseph to take Martin to Dorsey’s room, where

defendant and Joseph bound Martin’s hands and feet.

With Joseph’s assistance, defendant pulled Dorsey’s safe out of the closet

and took it downstairs to the trunk of Dorsey’s car. They drove to Jesse Smith’s

house, where defendant rushed in and told Jesse that he “just shot two people.”

Jesse asked who defendant had shot, and defendant replied that it was Dorsey and

her brother. Once they were able to pry the safe open, Joseph and defendant took

the safe’s contents; defendant took $100 cash, and Joseph took the rest of the cash

and the jewelry. Joseph gave his girlfriend, Jalicia P., some gold bracelets from

the safe.

Concerned that Martin had survived and could identify them, defendant and

Joseph returned to the apartment to see if Martin was still alive. After confirming

that Martin was dead, defendant and Joseph took some CD’s, tapes, and other

small items from the apartment. Joseph and defendant returned to Jesse’s house

and disposed of the safe in the vacant lot next door.

The next day, the victims’ sister, Wilma Thomas, found their bodies in the

Richmond apartment. The apartment was ransacked, and Dorsey’s car was

missing.

Dorsey and Martin had each been shot one time. During the autopsy, the

forensic pathologist found a .32-caliber bullet in Dorsey’s body. Martin’s hands

and feet had been bound behind him with telephone cord and a leather belt. In

Martin’s bedroom, police found two unexpended .32-caliber rounds, and near

Martin’s bed there was one expended .32-caliber cartridge and some blood.

Martin could have survived his wound if he had received immediate medical

5



treatment, and it was estimated that it took him between 20 minutes and an hour to

die from the wound.

The following day, defendant’s brother, Jesse Smith, was driving Dorsey’s

car in North Richmond. Defendant was in the front passenger seat, and there were

two passengers, Darrell Fuller and Bobby Robinson, in the rear seat of the car.

Defendant had told Jesse that he had he gotten the car from “some base head,” had

told Fuller that he had purchased the car from “faggot Michelle” for $4,000, and

had gotten the gun from “some base head.”

A deputy from the Contra Costa Sheriff’s Office on patrol in North

Richmond spotted Dorsey’s car and pulled over the vehicle. As the car was pulled

over, defendant told the other occupants to tell the deputy that the car was a

friend’s car or had been rented from someone. While searching the car, the deputy

found a box of .32-caliber ammunition and a .32-caliber semiautomatic pistol

underneath defendant’s seat. The gun found in the car was registered to Dorsey,

and analysis of an expended .32-caliber cartridge from the crime scene revealed

that it had been fired from Dorsey’s gun. Defendant was arrested.

Defendant was first interviewed by police on the day he was arrested,

Monday, March 25, 1991. Defendant told inconsistent stories about how he had

obtained Dorsey’s gun; he told police that he had purchased Dorsey’s gun from a

person named “Skin,” then told police that he actually had bought the gun from a

drug dealer called “D Money.” He told police that he had been approached by

three men who drove up in Dorsey’s car and asked for his help in opening the safe

they had with them.

Eventually, defendant admitted that he had been at Dorsey and Martin’s

apartment when they were killed. He told police that he was at the apartment

when Joseph and two other men arrived. He said that Joseph went into Dorsey’s

bedroom, that Dorsey told Joseph to put the gun down, and that he saw Joseph

shoot Dorsey, then Martin. Defendant denied that he provided any assistance to

6



Joseph or the other men in committing the murders, but admitted helping the men

carry the safe to Dorsey’s car and taking some money and other small items.

Nearly 11 hours later, after interviewing Joseph, police reinterviewed defendant

about the murders. Defendant admitted that he and Joseph had planned to rob

Dorsey and that they were the only ones in the house,3 but continued to deny

having shot Dorsey and Martin.

2. Defense

Evidence

During his opening argument, defense counsel focused his case upon the

theory that Joseph, not defendant, shot Dorsey and Martin.

Peter Barnett, an expert criminalist and crime scene reconstructionist,

testified that certain evidence at the crime scene contradicted the account of the

shootings presented by the prosecution. Barnett concluded that the shooter had

been inside Martin’s bedroom or the doorway to the bedroom when Martin was

killed, instead of in the hallway, as posited by the prosecution. Additionally,

Barnett concluded that it was unlikely that Michelle Dorsey had been on her knees

facing the shooter eye-to-eye when she was shot, as the shooter would not have

been able to shoot Dorsey with a straight shot from this position. Joseph had

previously testified that Dorsey had been on her knees, facing towards defendant

when she was shot.

Jalicia P., who previously had testified for the prosecution, testified that

Joseph had given her some jewelry, and that he had appeared to be nervous when

he presented the jewelry to her. She further testified that Joseph more recently had

written her a letter in which he had threatened to kill her.


3

It is evident from the transcript of the interview that defendant meant that

he and Joseph were the only ones in the house other than the victims.

7



C. Sanity Phase Evidence

1. Defense

Evidence

At the sanity phase, the defense first presented testimony about defendant’s

childhood and his behavior shortly before the murders.

Defendant acted differently from other children, including his siblings,

beginning at the age of four years. Defendant’s father, Robert Smith, Sr., was

abusive to defendant and to defendant’s mother, Francine. When defendant was a

young child, his father killed his mother. Defendant’s maternal aunt was at the

Smiths’ house soon after the murder, and defendant tried to indicate to her that his

mother’s body was in the closet. After his mother’s murder, defendant was

removed from his home. About a year and a half or two years later, Robert Smith,

Sr., was released from jail and regained custody of defendant.

When defendant was in his youth, he was sent to Napa State Hospital, a

psychiatric facility. After a short time had passed, defendant was incarcerated at

the California Youth Authority (CYA). During this period, defendant seemed

depressed and paranoid. These bouts of paranoia seemed to correlate with periods

when defendant did not take the medication that had been prescribed for his mood

and behavioral problems. After defendant was released from CYA, shortly before

the murders, defendant acted strangely; he babbled and behaved in a paranoid

fashion. Around this time, Dr. Champlin, a psychiatrist at the county hospital

where defendant was briefly involuntarily admitted, diagnosed defendant with

schizo-affective disorder. Defendant’s aunt testified that, during this period, it

appeared that defendant knew the difference between right and wrong.

Dr. George Woods and Dr. Martin Blinder, who had been appointed to

evaluate defendant following his not guilty by reason of insanity plea, both

testified during the sanity phase. Dr. Woods testified that defendant’s psychiatric

files, CYA and other juvenile court records, and social services records of his

8



family circumstances revealed an extensive family history of bipolar disorder,

substance abuse, and psychosis.

Defendant had been committed to psychiatric treatment facilities, including

Napa State Hospital, from the age of nine years; while in these treatment facilities,

he exhibited psychotic behavior and testing revealed some organic brain

dysfunction. When discharged from Napa, defendant was diagnosed with a

conduct disorder involving aggressive behavior.

Based on the records of tests conducted on defendant in the past and the

relative levels of success of defendant’s current and prior use of lithium, which

had been prescribed to defendant at various points in his life, Dr. Woods believed

that defendant had been misdiagnosed and was instead suffering from an organic

mood disorder with features of bipolar disorder. Dr. Woods opined that, based on

the information he had reviewed, defendant was in a severe manic state at the time

of the killings, which would have made it impossible for him to initiate any action.

Dr. Woods opined that defendant was more likely to have followed a cohort’s

actions. Dr. Woods’s conclusion was that defendant had not been able to

understand the nature and quality of his actions at the time of the offense, but that

he would have understood the difference between right and wrong.

Dr. Blinder’s testimony was far less favorable to defendant. He described

defendant as a “sociopath,” and also commented that defendant was essentially

dyslexic. He opined that defendant had a genetic predisposition for psychopathy

and antisocial characteristics, and that such disorders were essentially untreatable.

In Dr. Blinder’s opinion, defendant’s symptoms were consistent with antisocial

personality disorder; he especially emphasized defendant’s lack of remorse for

hurting people. Dr. Blinder found no psychiatric evidence that defendant was

legally insane at the time of the offenses.

Defendant also presented other expert witnesses, including Dr. Myla Young

and Dr. Samuel Benson. Dr. Young testified that defendant’s ability for verbal

9



comprehension was “borderline” and his overall intellectual functioning was “in

the low average range,” and that defendant suffered from significant brain

damage, as well as an organic mood disorder involving mania and depression. Dr.

Benson, a psychiatrist, concluded that defendant suffered from organic brain

disease and bipolar disorder. He noted that defendant had lesions on his left

temporal and parietal lobes, which could cause violent and unpredictable behavior.

Dr. Benson opined that at the time of the murders, defendant knew the difference

between right and wrong, but could not appreciate the nature and consequence of

his acts.

2. Prosecution Rebuttal Evidence

In rebuttal, the prosecution called several witnesses to dispute the testimony

of the defense witnesses. Dr. Sandra Klein testified that the intelligence tests

administered to defendant by Dr. Young had been erroneously scored, and also

that defendant showed no evidence of organic brain damage. Another prosecution

witness diagnosed defendant with antisocial personality disorder. The prosecution

also presented testimony by a CYA counselor, who concluded that defendant was

a “predator” who knew the difference between right and wrong and could

understand the nature and quality of his actions.

3. Defense Surrebuttal Evidence

Defense called Dr. Dale Watson to rebut Dr. Sandra Klein’s testimony that

Dr. Young’s test results were erroneously scored. Dr. Watson criticized Dr.

Klein’s analysis and testified that the testing showed evidence of organic brain

damage. Dr. Watson also discussed psychological testing performed by Dr. Oliver

Glover, a psychologist who had testified in support of defendant’s pretrial motion

to suppress statements he made during police interviews.

10



D. Penalty Phase Evidence

1. Prosecution

Evidence

The prosecution’s case in aggravation centered upon many violent acts

committed by defendant prior to the murders.

While he was incarcerated at CYA facilities, defendant became violent

toward the youth counselors and other wards on several occasions. For example,

defendant hit another ward with a closed fist in June, 1985, and threw one chair at

a window and another chair at two youth counselors in August, 1985. In March,

1986, defendant assaulted a counselor, causing minor injuries. In two separate

incidents, defendant threatened to kill youth counselors at CYA facilities.

Eventually, defendant was transferred to a special unit within the CYA that housed

the most violent offenders. While housed in this unit, defendant was involved in

an altercation with another ward, continuing to assault the other ward despite staff

members’ use of Mace, until four staff members were finally able to subdue him.

After his release from CYA custody, defendant was arrested on domestic

violence charges. Even after officers responded to the report of domestic violence,

defendant continued to assault the victim.

While in pretrial custody on the present charges at the Martinez Detention

Facility, defendant claimed that he had failed to receive his medication. Returning

to his cell after receiving his medication, defendant suddenly darted into the cell of

another inmate and punched the inmate several times. He continued to assault the

inmate until he was sprayed with Mace and restrained. The reason underlying the

assault was that the inmate formerly had given defendant extra food and toiletries,

but recently had stopped doing so.

On the same day as that assault, defendant displayed out-of-control

behavior, such as kicking doors and overturning tables, which he continued even

after being sprayed with Mace. Four deputies were required to restrain him. After

he was transported to the facility’s discipline module, defendant again became

11



combative and told the deputies: “I have got the death penalty coming. I have got

nothing to lose. As soon as I get these . . . handcuffs off, I’m going to get you

guys. I have got the death penalty.” Little more than a month later, he assaulted a

deputy.

Later during defendant’s incarceration in the Martinez Detention Facility,

deputies performing a routine security check of defendant’s cell found that the

metal screen covering the window had been pried loose; they also recovered a

piece of iron from under defendant’s bunk that matched the pry marks on the

metal screen. When deputies told defendant that he would be transferred to a

different cell and would receive a write-up for destruction of jail property,

defendant became verbally abusive toward the deputies. He repeatedly used the

intercom between his cell and the deputies’ booth to insult the deputies, and

destroyed the intercom after the deputies turned the intercom off. Immediately

after breaking the intercom, defendant used a wooden desk to break down the cell

door, and walked out of his cell, challenging the deputies to come get him. The

deputies escorted defendant to a rubber-lined safety room, and, after defendant

became combative and attempted to bite and spit on the deputies, he was shackled

and chained to the floor.

On February 28, 1992, defendant appeared for a hearing in Contra Costa

County Superior Court. When the prosecutor placed a witness list in front of

defense counsel at the conclusion of the proceedings, defendant became very

agitated. After he was handcuffed, defendant screamed obscenities and said that

he “might as well let this deputy shoot [him] right now.” He ran toward the

chambers area of the courtroom and was wrestled to the ground. Defendant

attempted to grab one of the deputies’ guns. After the court reporter pressed the

emergency button, four deputies arrived and subdued defendant. Defendant was

placed in a cell at the detention facility across the street from the courthouse.

While there, he kicked the cell door open and further threatened the deputies.

12



2. Defense Evidence

The defense case in mitigation focused upon the childhood abuse of

defendant by his father, Robert Smith, Sr.

Robert Smith, Sr. was violent towards defendant and the other children in

the household. However, his abuse of defendant was particularly brutal, and he

treated defendant like he was “some type of animal.” Robert Smith, Sr. also

abused Francine, his wife and defendant’s mother, choking her and beating her.

In early 1975, defendant’s aunt visited the Smith residence. The house was

covered in blood. Robert Smith, Sr. was attempting to clean up the blood. When

asked what had happened, he told the aunt that defendant had had a bloody nose.

The aunt returned with other family members. When defendant told his aunt that

his mother’s body was in the closet, defendant’s father kicked him and threw him

into another room. The family left the house. Defendant’s father wrapped the

body in paper bags and blankets, dumped it in an area near Martinez, and fled to

Mississippi.

Defendant was removed from parental custody, was notified that his father

had killed his mother, and was placed in a foster home. Will and Berta Lias,

defendant’s foster parents, had no problems with defendant and recalled him being

a relatively normal child.

Robert Smith, Sr. was convicted of voluntary manslaughter and served a

nine-month jail term. Upon his release, he returned to California and regained

custody of his children. Defendant had a difficult time readjusting to living with

his father and began behaving violently toward his siblings. Defendant was

removed from the Smith home in 1978, after exhibiting uncontrollable behavior

and rage toward the other family members. He was eventually placed in a

psychiatric institute.

Defendant’s primary counselor during one of his CYA placements recalled

that defendant was pleasant and performed well most of the time. He conceded

13



that defendant had been disciplined for violent offenses while at the facility and

could not control his anger. The counselor eventually recommended that

defendant be transferred out of the facility. Two other youth counselors who had

experience dealing with defendant during his incarceration in CYA facilities

testified that defendant responded warmly when treated with respect and interacted

well with the other wards.

II. DISCUSSION

A. Admission of Defendant’s Statements to Police

On March 25 and 26, 1991, defendant was in police custody and was

interrogated by Richmond police officers. Defendant contends that admission of

his confession violated his rights under the Fifth, Sixth, Eighth, and Fourteenth

Amendments of the United States Constitution.4 He argues that several factors

rendered his statements involuntary and unreliable: 1) defendant’s mental

impairments made him particularly vulnerable during the interviews; 2) he was


4

Defendant urges in this and a number of other claims that the error or

misconduct he is asserting infringed various of his constitutional rights to due
process and a fair trial. What we stated in People v. Boyer (2006) 38 Cal.4th 412,
441, footnote 17, applies here: “In most instances, insofar as defendant raised the
issue at all in the trial court, he failed explicitly to make some or all of the
constitutional arguments he now advances. In each instance, unless otherwise
indicated, it appears that either (1) the appellate claim is of a kind . . . that required
no trial court action by the defendant to preserve it, or (2) the new arguments do
not invoke facts or legal standards different from those the trial court itself was
asked to apply, but merely assert that the trial court’s act or omission, insofar as
wrong for the reasons actually presented to that court, had the additional legal
consequence
of violating the Constitution. To that extent, defendant’s new
constitutional arguments are not forfeited on appeal. [Citations.] [¶] In the latter
instance, of course, rejection, on the merits, of a claim that the trial court erred on
the issue actually before that court necessarily leads to rejection of the newly
applied constitutional ‘gloss’ as well. No separate constitutional discussion is
required in such cases, and we therefore provide none.”

14



misled about the time necessary to obtain counsel; 3) the detectives failed to

readminister Miranda warnings at the beginning of the second interview; 4) the

fictitious “Neutron Proton Negligence Intelligence Test” administered by police

was coercive; and 5) the audiotapes of defendant’s interviews are incomplete.

1. Factual

Background

After defendant’s arrest on Monday, March 25, 1991, police officers

brought him to the Richmond police headquarters. Detectives interviewed

defendant twice. The first interview began on the evening of March 25 and lasted

six hours, concluding in the early morning hours of March 26; the second

interview began in the afternoon of March 26 and lasted approximately an hour

and a half.

At the outset of the first interview, Detective Kimura advised defendant of

his rights under Miranda v. Arizona (1966) 384 U.S. 436.5 Defendant asked

Detective Kimura “if I don’t talk to you now, how long will it take for me to talk

to you ’fore a person sent a lawyer to be here?” Before Detective Kimura could

answer the question, defendant told the detective “I could wait ’til next week

sometime.” Detective Kimura said: “Maybe, yeah.” Defendant then told the

detective: “I’ll talk to you now. I don’t got nothing to hide.”

Defendant initially was informed that he was under investigation for

automobile theft. Defendant stated that he had been approached by Joseph and

two other men, who wanted defendant’s help opening a safe. After later being


5

Detective Kimura advised defendant of his Miranda rights as follows:

“You have the right to remain silent. You do not have to answer my questions or
talk to me. Anything you say can be used against you in court. You have the right
to talk to a lawyer, uh before you are asked any questions and to have . . . the
lawyer present with you during questioning. If you cannot afford to hire a lawyer,
one will be appointed to represent you free of charge before any questions if you
wish.”

15



told that he was under investigation for murder, defendant admitted that he had

been present at the apartment during the murders, but told the detectives that

Joseph and two other men had killed Dorsey and Martin. At the end of the

interview, Detective Kimura booked defendant into custody for murder.

The second interview began less than 12 hours after the conclusion of the

first interview and lasted for about an hour and a half. Detective Kimura asked

defendant whether he remembered being read his Miranda rights during the

previous interview and whether he was still comfortable talking about the case.

Defendant had no objections to speaking about the case, telling Detective Kimura

that he “pretty much” remembered the Miranda advisements and had no

objections to talking further about the case. Detective Kimura concluded that

defendant did not want or need a Miranda readvisement.

During the second interview, Detective Kimura told defendant that he

wanted to conduct a “test” called the “Neutron Proton Negligence Intelligence

Test” that purportedly would determine whether defendant had recently fired a

gun. No such test exists. In the first step of the “test,” the detectives sprayed

defendant’s hands with soap and patted them with a paper towel. In the second

step, they used a field test kit used for testing substances suspected of being

cocaine, which the detectives knew inevitably would turn color. Detective Kimura

told defendant that the test had provided proof that defendant had recently fired a

gun. Defendant continued to deny shooting Dorsey and Martin. However,

defendant did admit that only he and Joseph were involved in the murders, and

that the two other men he had said were involved in the crimes had not been

present.

Defendant filed a pretrial motion to exclude his statements. Among other

things, he argued that his statements were involuntary because he was misled

about the time necessary to obtain counsel, the detectives failed to readminister

Miranda warnings at the beginning of the second interview, and the fictitious

16



“Neutron Proton Negligence Intelligence Test” administered by police was

coercive. Defendant did not argue that the statement was rendered involuntary

because the audio tapes of defendant’s interviews are incomplete, and it is not

clear that defendant sufficiently raised the argument that his mental impairments

made him particularly vulnerable during the interviews at trial. The trial court

denied the motion, noting that defendant had consistently denied being the shooter

during both interviews: “Mr. Smith was steadfast in his position, and [the

detectives] could never shake him from that despite their continued questioning.”

2. Legal

Principles

The federal and state Constitutions both bar the use of involuntary

confessions against a criminal defendant. (Jackson v. Denno (1964) 378 U.S. 368,

385-386; People v. Benson (1990) 52 Cal.3d 754, 778.) A confession is

involuntary if it is “not ‘ “the product of a rational intellect and a free will” ’ ”

(Mincey v. Arizona (1978) 437 U.S. 385, 398, italics omitted), such that the

defendant’s “will was overborne at the time he confessed.” (Lynumn v. Illinois

(1963) 372 U.S. 528, 534.) In assessing allegedly coercive police tactics, “[t]he

courts have prohibited only those psychological ploys which, under all the

circumstances, are so coercive that they tend to produce a statement that is both

involuntary and unreliable.” (People v. Ray (1996) 13 Cal.4th 313, 340.)

Whether a statement is voluntary depends upon the totality of the circumstances

surrounding the interrogation. (People v. Neal (2003) 31 Cal.4th 63, 79.)

In

Miranda v. Arizona, the high court held that police must advise a

criminal suspect who is in custody of specified Fifth Amendment rights prior to

questioning. (Miranda v. Arizona, supra, 384 U.S. 436.) As we have held:

“Under the familiar requirements of Miranda, . . . a suspect may not be subjected

to custodial interrogation unless he or she knowingly and intelligently has waived

the right to remain silent, to the presence of an attorney, and to appointed counsel

in the event the suspect is indigent.” (People v. Sims (1993) 5 Cal.4th 405, 440.)

17



Miranda holds that ‘[t]he defendant may waive effectuation’ of the rights

conveyed in the warnings ‘provided the waiver is made voluntarily, knowingly

and intelligently.’ [Citation.] The inquiry has two distinct dimensions.

[Citations.] First, the relinquishment of the right must have been voluntary in the

sense that it was the product of a free and deliberate choice rather than

intimidation, coercion, or deception. Second, the waiver must have been made

with a full awareness of both the nature of the right being abandoned and the

consequences of the decision to abandon it. Only if the ‘totality of the

circumstances surrounding the interrogation’ reveals both an uncoerced choice and

the requisite level of comprehension may a court properly conclude that the

Miranda rights have been waived. [Citations.]” (Moran v. Burbine (1986) 475

U.S. 412, 421; see also People v. Combs (2004) 34 Cal.4th 821, 845.)

In

reviewing

Miranda issues on appeal, we accept the trial court’s

resolution of disputed facts and inferences as well as its evaluations of credibility

if substantially supported, but independently determine from undisputed facts and

facts found by the trial court whether the challenged statement was legally

obtained. (People v. Storm (2002) 28 Cal.4th 1007, 1022-1023; People v.

Cunningham (2001) 25 Cal.4th 926, 992.)

3. Defendant’s Mental Impairments

Defendant contends that his particular mental state at the time of the

interviews rendered his statements involuntary. In particular, defendant asserts

that he had a family history of physical, psychological, and sexual abuse, had

previously been committed to a mental hospital, and had significant brain damage.

It is not clear from the record that defendant sufficiently raised this argument at

trial. However, respondent does not object to the claim on this ground, and we

will address the merits of this claim.

Insofar as a defendant’s claims of involuntariness emphasize that

defendant’s particular psychological state rendered him open to coercion, this

18



court has noted that “the Fifth Amendment is not ‘concerned with moral and

psychological pressures to confess emanating from sources other than official

coercion.’ ” (People v. Bradford (1997) 14 Cal.4th 1005, 1041, quoting Oregon v.

Elstad (1985) 470 U.S. 298, 304-305; see also Colorado v. Connelly (1986) 479

U.S. 157, 165 [while mental condition is relevant to an individual’s susceptibility

to police coercion, a confession must result from coercive state activity before it

may be considered involuntary].) The record does not convince us that the

interrogating officers were aware of, or exploited, defendant’s claimed

psychological vulnerabilities in order to obtain statements from him.

4. Request for Counsel

Defendant also maintains that Detective Kimura misrepresented the

availability of counsel when advising defendant of his Miranda rights and thereby

unconstitutionally induced defendant into waiving his right to counsel.

During

the

Miranda advisement process, defendant asked Detective

Kimura how long it would take to get an attorney appointed. Before Detective

Kimura could answer, defendant told him that he could wait until “next week

sometime.” In response, Detective Kimura said “[m]aybe, yeah.”

Miranda requires that a suspect be informed that “he has the right to an

attorney before and during questioning, and that an attorney would be appointed

for him if he could not afford one.” (Duckworth v. Eagan (1989) 492 U.S. 195,

204, fn. omitted.) In Duckworth, the high court approved of Miranda warnings

that explained that the suspect had a right to consult with counsel before being

questioned, but that an attorney would be appointed “ ‘if and when’ ” he appeared

in court. (Ibid.) The court in Duckworth noted that “[t]he Court in Miranda

emphasized that it was not suggesting that ‘each police station must have a

“station house lawyer” present at all times to advise prisoners.’ [Citation.] If the

police cannot provide appointed counsel, Miranda requires only that the police not

question a suspect unless he waives his right to counsel. [Citation.] Here

19



respondent did just that.” (Ibid.) In other words, Miranda does not require that

attorneys be producible on call, or that police “keep a suspect abreast of his

various options for legal representation.” (People v. Bradford, supra, 14 Cal.4th

at p. 1046.)

Here, defendant was told in no uncertain terms that he had the right to

consult with, to be represented by, and to have an attorney present before and

during questioning, and the further right to have counsel appointed if he was

indigent. Defendant never requested an attorney or indicated that he wished to

end the interview. (See People v. Whitson (1998) 17 Cal.4th 229, 249-250.)

Contrary to defendant’s contention that Detective Kimura “lied” about the

availability of counsel, Detective Kimura did not actively mislead defendant.

Detective Kimura never told defendant that it would take a week for counsel to be

appointed, but merely responded equivocally to defendant’s statement that he

could wait up to a week for counsel to be appointed. The detective never

represented to defendant that it actually would take up to a week for counsel to be

appointed.

Although defendant posits that Kimura should have corrected defendant’s

assumption that it could take up to a week to get counsel, he cites no authority for

the proposition that a suspect who has received and understood the Miranda

advisements cannot properly waive his Fifth Amendment rights if he labors under

any misapprehension of the mechanics of when and how counsel is appointed.

Indeed, several federal circuit courts have held that a suspect’s Miranda waiver

remains valid even if interrogating officers mislead the suspect about how long it

will take to appoint counsel. (See Soffar v. Cockrell (5th Cir. 2002) 300 F.3d 588,

591, 596 [holding that a detective’s speculation that “it could take as little as one

day or as long as a month” for a suspect to obtain counsel did not invalidate the

suspect’s Miranda waiver]; Richardson v. Duckworth (7th Cir. 1987) 834 F.2d

1366, 1367, 1371 [holding that defendant had been fully apprised of his

20



constitutional rights where he was given a Miranda advisement and told upon two

occasions that he had the right to speak to a lawyer before being questioned, made

an incriminating statement, and then, upon inquiry, was told by the detective that a

lawyer would be appointed in court].)

5. Failure to Readvise Defendant of Miranda Rights

Defendant further faults Detective Kimura for failing to readvise him of

his Fifth Amendment rights when the second interview began.

This court repeatedly has held that a Miranda readvisement is not necessary

before a custodial interrogation is resumed, so long as a proper warning has been

given, and “the subsequent interrogation is ‘reasonably contemporaneous’ with the

prior knowing and intelligent waiver.” (People v. Mickle (1991) 54 Cal.3d 140,

170 (Mickle); People v. Braeseke (1979) 25 Cal.3d 691, 701-702, vacated and

cause remanded (1980) 446 U.S. 932, reaffd. (1980) 28 Cal.3d 86.)

We have established several factors to determine whether readvisement is

necessary prior to a subsequent interrogation held after an earlier valid Miranda

waiver: 1) the amount of time that has passed since the initial waiver; 2) any

change in the identity of the interrogator or location of the interrogation; 3) an

official reminder of the prior advisement; 4) the suspect’s sophistication or past

experience with law enforcement; and 5) further indicia that defendant

subjectively understands and waives his rights. (Mickle, supra, 54 Cal.3d at p.

170.) In Mickle, we found that readvisement was unnecessary when 36 hours had

elapsed between interrogations, because the defendant was still in custody, was

interviewed by the same interrogators, was reminded of his prior waiver, was

familiar with the justice system, and there was nothing to indicate he was mentally

impaired or otherwise incapable of remembering the prior advisement. (Id. at p.

171.)

In this case, the second interrogation occurred less than 12 hours after the

first interrogation ended. Defendant remained in custody in the interim. The same

21



officers conducted the interrogation, in the same office, and asked defendant

whether he remembered the Miranda warnings, or if he would like to hear them

again. Defendant declined, stating that he remembered the advisements and still

wished to speak with the officers. There is no indication on the record that the

officers should have suspected that defendant was mentally impaired or otherwise

incapable of remembering the prior advisement. Finally, because defendant had

been incarcerated in the California Youth Authority and arrested for domestic

violence in 1990, defendant was quite familiar with the criminal justice system.

Under these circumstances, Detective Kimura was not required to readvise

defendant of his Miranda rights.

6. The “Neutron Proton Negligence Intelligence Test”

During the second interview, the officers conducted what they told

defendant was called the “Neutron Proton Negligence Intelligence Test.” As we

have described, this test was a sham. When the officers indicated that the “test”

was positive, and that defendant had fired a gun recently, defendant repeatedly and

vehemently denied ever shooting a gun.

After the test was given, and defendant had been told that the result was

positive for gunshot residue, defendant recanted the portion of his statement

implicating the two unnamed men; according to defendant, only he and Joseph

were involved, and Joseph had been the shooter. Defendant now contends that the

officers’ use of a sham test was a deceptive tactic that rendered defendant’s

incriminating statements involuntary.

Police deception “does not necessarily invalidate an incriminating

statement.” (People v. Maury (2003) 30 Cal.4th 342, 411.) Courts have

repeatedly found proper interrogation tactics far more intimidating and deceptive

than those employed in this case. (See, e.g., Frazier v. Cupp (1969) 394 U.S. 731,

739 [officer falsely told the suspect his accomplice had been captured and

confessed]; People v. Jones (1998) 17 Cal.4th 279, 299 [officer implied he could

22



prove more than he actually could]; People v. Thompson (1990) 50 Cal.3d 134,

167 [officers repeatedly lied, insisting they had evidence linking the suspect to a

homicide]; In re Walker (1974) 10 Cal.3d 764, 777 [wounded suspect told he

might die before he reached the hospital, so he should talk while he still had the

chance]; People v. Watkins (1970) 6 Cal.App.3d 119, 124-125 [officer told

suspect his fingerprints had been found on the getaway car, although no prints had

been obtained]; and Amaya-Ruiz v. Stewart (9th Cir. 1997) 121 F.3d 486, 495

[suspect falsely told he had been identified by an eyewitness].) Indeed, at least

one Court of Appeal has approved of the particular practice used in this case.

(People v. Parrison (1992) 137 Cal.App.3d 529, 537 [police falsely told suspect a

gun residue test produced a positive result].)

After examining the circumstances surrounding the “Neutron Proton

Negligence Intelligence Test,” it does not appear that the tactic was so coercive

that it tended to produce a statement that was involuntary or unreliable. In any

event, we also note that the officers’ tactic in using the fake test was unsuccessful

in eliciting a confession; defendant never confessed to having been the shooter,

but instead steadfastly denied having shot the gun.

Defendant contends that the deceptive tactic, though unsuccessful in

eliciting a confession to firearm use, coerced him into revising his story and telling

police that the two other men he had implicated were not involved. However, it is

evident that the “test” was designed to elicit a confession related to firearm use.

The absence or presence of the two men has little relation to whether defendant

shot a firearm on the night of the murders.

7. Lapse in Taped Recording of Defendant’s Statement

Both interrogations of defendant were tape-recorded by the interrogating

officers. However, one half-hour segment of the first interrogation was either not

recorded or taped over. Defendant now contends that the lapse in the recording

occurred during a critical period in the interrogation. He argues that immediately

23



before the unrecorded portion of the interrogation, defendant had not seriously

incriminated himself, and that it was only after the unrecorded portion that he

made self-incriminating statements. Defendant argues that, without a recording of

this critical period, the People cannot meet their burden of proving that the

statement was voluntary.

Defendant did not argue at trial that the court should exclude his statements

because of the lapse in the audio recording. However, the trial court reviewed the

tapes independently while considering defendant’s pretrial motion to exclude the

statements and noticed the lapse. At the beginning of the pretrial hearing on the

motion, the trial court pointed out to counsel that one side of one tape was blank.

Although defense counsel had also noticed the blank portion of the recording, he

seems not to have considered it problematic. He explained, “There is a blank one

and—on one side ‘cause it puzzled me the first time I listened to it, but it seemed

that the chronology continued on on the next tape.” There was no discussion

during the hearing of whether the lapse should have affected the trial court’s

decision as to whether defendant’s statement was voluntary.

Defendant has forfeited this claim by failing to object in the trial court to

the incomplete recording of defendant’s interviews. (People v. Saunders (1993) 5

Cal.4th 580, 589-590.) Because the trial court had no opportunity to address any

possible factual disputes about what occurred during the lapse in recording, we

will not address this claim for the first time on appeal. (People v. Ray, supra, 13

Cal.4th at p. 339 [where defendant sought suppression of his confession at trial

only on the ground that there was a delay in advising him of his Miranda rights,

his claim that the confession was involuntary because it was given in exchange for

a promised benefit was forfeited on appeal].)

Defendant also alleges that the police “did something” to make defendant

change his story during the unrecorded portion of the tape. However, defendant

acknowledges that his argument relies upon matters outside of the record in this

24



case, which may not be considered on appeal. The mere fact that there was a lapse

in the recording of the first interrogation in no way establishes that defendant’s

subsequent statements were involuntary or coerced.

B. Disclosure of Dr. Glover’s Testing Data

The trial court, after a defense-retained psychologist referred to

psychological tests taken by defendant, ordered that the psychological test data be

turned over to the prosecution. Defendant contends that this order was reversible

error.

1. Factual Background

Dr. Oliver Glover, a psychologist, testified in support of defendant’s

pretrial motion to suppress statements he made during the police interviews of

March 25 and 26, 1991. Dr. Glover had listened to the tapes of the police

interrogations in order to form an opinion on whether defendant’s statements were

made voluntarily.

At the suppression hearing, Dr. Glover opined that defendant’s statements

were made involuntarily. According to Dr. Glover, several factors combined to

render defendant’s statements involuntary: 1) defendant’s fatigue; 2) his recent

marijuana use; 3) the fictitious gunshot residue test; and 4) an anxiety condition

causing a panic response in defendant when confronted by authority figures.

Dr. Glover noted that he had administered numerous psychological tests to

defendant. Although Dr. Glover stated that he did not give the tests to defendant

in order to assess the voluntariness of defendant’s statements to police, he

acknowledged that he referred to the tests, and also to notes taken during

examinations of defendant, in order to refresh his recollection before testifying.

Additionally, Dr. Glover stated that he examined the tests to formulate his opinion

about defendant’s anxiety condition and to support his general diagnosis.

25



The prosecution moved to discover Dr. Glover’s test data, pursuant to

Evidence Code sections 771 and 721, subdivision (a)(3). Defendant objected to

disclosure of Dr. Glover’s test data and notes, asserting that disclosure would

violate the psychotherapist-patient privilege. The trial court overruled defendant’s

objection and ordered defense counsel to turn over to the prosecution Dr. Glover’s

notes, raw data, and the actual test materials. The trial court reasoned that the

prosecutor was entitled to discovery of the evidence under Evidence Code section

771 for the purpose of cross-examining Dr. Glover. The record appears to support

defendant’s assertion that the prosecution never used the notes, raw data, and test

materials obtained from Dr. Glover during the suppression hearing.

The prosecution used these materials later, however, during the sanity

phase of the trial. The defense objected to the prosecution questioning Dr. Paul

Berg, a witness called by the prosecution, about Dr. Glover’s results on the ground

that it was improper for a witness to give an opinion based on another person’s

report. The trial court overruled this objection. Dr. Berg testified that defendant’s

scores on one psychological test showed that the proper diagnosis for defendant

“clearly would be antisocial personality disorder.” Dr. Dale Watson, a witness

called by the defense, was asked on cross-examination about certain of Dr.

Glover’s testing. Dr. Watson testified that, when asked to describe an image of

the profile of a man standing in a window or French door, defendant responded:

“This is a burglar creeping into the window of a house to remove items he

shouldn’t have. He will soon exit the house and sell the items for cash money. He

will get his money, have a good time, get broke, and do another burglary.”

Additionally, during closing argument, the prosecution argued that Dr. Glover’s

data revealed inconsistencies in defendant’s testing indicating that he was

malingering and emphasized Dr. Berg’s conclusion that defendant had antisocial

personality disorder.

26



2. Discussion

Defendant contends that the trial court committed reversible error in

requiring disclosure to the prosecution of Dr. Glover’s notes, test data, and test

materials. He argues that this disclosure violated his Sixth Amendment right to

effective assistance of counsel, as embodied in the psychotherapist-patient

privilege (Evid. Code, § 1014) and attorney-client privilege (Evid. Code, § 954),

his Fifth Amendment protection against self-incrimination, and led to a verdict of

death in violation of his Eighth Amendment rights. However, during trial, the

defense objected to the disclosure of Dr. Glover’s materials only on the ground of

the psychotherapist-patient privilege. Defendant has not identified, nor is the

court aware of, any portion of the record showing that any other objection was

made to this disclosure during the suppression hearing. Accordingly, defendant’s

other grounds for appealing the disclosure have been forfeited.

The trial court did not err in requiring disclosure of Dr. Glover’s materials.

Evidence Code section 771, subdivision (a), provides: “if a witness, either while

testifying or prior thereto, uses a writing to refresh his memory with respect to any

matter about which he testifies, such writing must be produced at the hearing at

the request of an adverse party and, unless the writing is so produced, the

testimony of the witness concerning such matter shall be stricken.” The “adverse

party may . . . inspect the writing, cross-examine the witness concerning it, and

introduce in evidence such portion of it as may be pertinent to the testimony of the

witness.” (Evid. Code, § 771, subd. (b).) Additionally, Evidence Code section

721, subdivision (a), provides in pertinent part that “a witness testifying as an

expert may be cross-examined to the same extent as any other witness and, in

addition, may be fully cross-examined as to . . . the matter upon which his or her

opinion is based and the reasons for his or her opinion.” Such cross-examination

properly includes documents and records examined by an expert witness in

preparing his or her testimony. (People v. Osband (1996) 13 Cal.4th 622, 712.)

27



Dr. Glover stated during his testimony that he used the tests to refresh his

recollection before testifying at the hearing. Defendant disputes whether Dr.

Glover actually consulted the test data before testifying, relying on statements

made by Dr. Glover that his opinion in court was not based upon any

psychological tests whatsoever. However, defendant fails to note that Dr. Glover

made these statements more than a month after the trial court had ordered that the

prosecution be given the test materials. Dr. Glover’s contradictory statements,

given well after the trial court’s ruling, do not indicate that the trial court abused

its discretion in requiring defendant to produce the test data, notes, and materials.

Before the trial court ruled on this issue, Dr. Glover had conceded to the

prosecution that he had relied upon certain portions of the testing to formulate his

opinion about defendant’s anxiety condition, which was a strong factor in Dr.

Glover’s conclusion that defendant’s statements were involuntary. Accordingly,

the trial court did not abuse its discretion in ruling that without examining the tests

upon which Dr. Glover founded his conclusion, the prosecution may not have

been able to cross-examine him effectively.



C. Denial of Motion to Sever Counts 6 and 10

Prior to trial, defendant moved to sever from the information count 6 (first

degree burglary) and count 10 (conspiracy to commit murder), which involved

charges arising out of defendant’s return to the victims’ apartment after the

shootings. Count 6 charged defendant with burglary based upon his theft of

several items when he returned to the apartment; count 10 charged defendant with

conspiracy to commit murder because he returned to the scene in order to make

sure Martin was dead. The trial court denied defendant’s motion to sever these

counts from the information.

Defendant now contends that the trial court’s failure to sever those counts

was an abuse of discretion requiring reversal of the judgment, because “[t]he

28



evidence supporting Counts 6 and 10 was extraordinarily prejudicial and added

nothing on the question of [defendant’s] personal culpability for the deaths of

Dorsey and Martin.” He contends that this violated his rights to a fair trial under

the Fifth, Eighth, and Fourteenth Amendments.

“ ‘The law prefers consolidation of charges.’ ” (People v. Manriquez

(2005) 37 Cal.4th 547, 574; People v. Ochoa (1998) 19 Cal.4th 353, 409.) “An

accusatory pleading may charge two or more different offenses connected together

in their commission, or different statements of the same offense or two or more

different offenses of the same class of crimes or offenses, under separate counts,

and if two or more accusatory pleadings are filed in such cases in the same court,

the court may order them to be consolidated.” (§ 954.)

We review the trial court’s denial of a severance motion for abuse of

discretion. (People v. Ochoa, supra, 19 Cal.4th at p. 408.) On appeal, the court

must consider whether a gross unfairness occurred that denied defendant a fair

trial or due process. (People v. Cleveland (2004) 32 Cal.4th 704, 726.) To

demonstrate that a denial of severance was reversible error, defendant must “

‘clearly establish that there [was] a substantial danger of prejudice requiring that

the charges be separately tried.’ ” (People v. Davis (1995) 10 Cal.4th 463, 508,

quoting Frank v. Superior Court (1989) 48 Cal.3d 632, 640.)

Refusal to sever charges on a defendant’s motion may be an abuse of

discretion where: “ ‘(1) evidence on the crimes to be jointly tried would not be

cross-admissible in separate trials; (2) certain of the charges are unusually likely to

inflame the jury against the defendant; (3) a “weak” case has been joined with a

“strong” case, or with another “weak” case, so that the “spillover” effect of

aggregate evidence on several charges might well alter the outcome of some or all

of the charges; and (4) any one of the charges carries the death penalty.’ ” (People

v. Davis, supra, 10 Cal.4th at p. 508 [joinder of claims was appropriate in a capital

case], quoting People v. Balderas (1985) 41 Cal.3d 144, 173.)

29



The trial court in this case properly exercised its discretion in denying

defendant’s motion to sever. The statutory requirements for joinder were met in

this case. The crimes charged in the counts defendant sought to sever were

connected in their commission to the other charges—the crimes charged in counts

6 and 10 were no more than a continuation of the earlier crimes, involving the

same victims, the same crime scene, and occurred on the same night as the

charged murders.

Defendant does not dispute that the crimes charged in counts 6 and 10 were

connected in their commission to the remaining charged offenses. Rather,

defendant maintains that the trial court abused its discretion because the evidence

offered in support of those claims was not cross-admissible to prove the remaining

charges and was likely to inflame the jury against defendant. Defendant asserts

that the evidence supporting counts 6 and 10 was irrelevant to defendant’s

personal culpability for the murders of Dorsey and Martin. Even assuming that

defendant is correct, this court has noted that complete cross-admissibility is not

necessary to justify joinder. (People v. Cummings (1993) 4 Cal.4th 1233, 1284.)

Additionally, because defendant’s return to the apartment to confirm that Martin

was dead is relevant to whether the murder was premeditated, it is reasonably

probable that evidence relating to the return visit would have been admissible even

if the court had ordered severance.

In

People v. Alvarez (1996) 14 Cal.4th 155, this court found denial of a

motion to sever appropriate where two crimes were connected in their commission

by a close temporal and spatial relationship, and where the later crime may have

been connected to a desire to avoid apprehension for the earlier crime. (Id. at

p. 188.) Here, the evidence tended to show that defendant returned to the victims’

apartment hours after the murders were committed in order to confirm that Martin

was dead and unable to “snitch.” Defendant’s return to the apartment was

certainly close in time (the same night) and space (the same apartment) to the

30



earlier crimes. Additionally, defendant returned to the scene of the earlier crimes

in order to assure himself that Martin would not be able to identify defendant as

the perpetrator. The earlier crimes committed by defendant were so tightly

intertwined temporally, spatially, and motivationally with the latter crimes so as to

constitute a continuation of the former.

None of the other relevant factors support defendant’s contention that

counts 6 and 10 should have been severed. The charged offenses of burglary and

conspiracy to commit murder were no more likely to inflame the jury against

defendant than were the remaining counts. Nor were any of the charged offenses

joined to take advantage of a “spillover” effect of aggregate evidence; all charges

were proved with the same body of evidence.

We therefore hold that the trial court acted within its discretion in denying

defendant’s motion to sever counts 6 and 10.

D. Impeachment of Joseph with Juvenile Record

Joseph, whom defendant ultimately identified as the only person present at

Dorsey’s apartment besides defendant and the victims, testified that defendant shot

Dorsey and Martin. The trial court permitted defense counsel to impeach Joseph

by questioning him about a letter he wrote while in custody on charges related to

the Dorsey and Martin murders, in which he threatened to kill his girlfriend,

Jalicia P. In addition, defense counsel sought to impeach Joseph by cross-

examining him regarding incidents of prior misconduct noted in his juvenile

record, including bicycle thefts, burglaries, and the assault of another ward while

in placement. Defense counsel specified to the court that he sought to question

Joseph about specific acts of misconduct and did not intend to use Joseph’s record

itself as impeachment evidence. The trial court reviewed Joseph’s juvenile record

in camera to determine which, if any, of the incidents in this record could be used

by defense counsel. The trial court allowed the defense to question Joseph only

about his admission of petty theft in juvenile proceedings in October 1987.

31



Defense counsel noted that there were other sustained petitions in Joseph’s

juvenile record, but the trial court did not confirm if any additional petitions had

been sustained. Instead, it stated that, regardless of other sustained petitions, it

would exercise its discretion under Evidence Code section 352 to limit questioning

based on Joseph’s juvenile record to his admission of petty theft. Defendant

contends that the trial court thus improperly limited the defense’s impeachment of

Joseph, and that Joseph should have been confronted with his entire juvenile

criminal history.

The trial court acted within its discretion to permit impeachment as to only

one of the incidents in Joseph’s juvenile record. “Past criminal conduct involving

moral turpitude that has some logical bearing on the veracity of a witness in a

criminal proceeding is admissible to impeach, subject to the court’s discretion

under Evidence Code section 352.” (People v. Harris (2005) 37 Cal.4th 310, 337,

citing People v. Wheeler (1992) 4 Cal.4th 284, 295-296.) “[T]he latitude section

352 allows for exclusion of impeachment evidence in individual cases is broad.

The statute empowers courts to prevent criminal trials from degenerating into

nitpicking wars of attrition over collateral credibility issues.” (People v. Wheeler,

supra, 4 Cal.4th at p. 296.) Neither during trial nor on appeal has defendant

identified specific incidents in Joseph’s juvenile file that so demonstrate moral

turpitude that they would support a conclusion that excluding them was an abuse

of the trial court’s discretion. On appeal, defendant now contends that the jury

should have been informed of the result of Joseph’s juvenile adjudication for his

offenses related to the murders of Dorsey and Martin.6 However, it is not clear

that defense counsel sought admission of this evidence during trial or that such

evidence would be admissible. (See People v. Lee (1994) 28 Cal.App.4th 1724,


6

The result of Joseph’s juvenile adjudication for these offenses is not evident

from the record.

32



1739-1740.) Moreover, upon inquiry from the jury, the trial court did inform the

jury that Joseph had been charged in juvenile court with two homicides, two

robberies, a burglary, and other offenses. Accordingly, defendant has not shown

that the trial court abused its discretion under Evidence Code section 352.

Defendant also contends that the trial court, in not allowing him to impeach

Joseph with evidence of the conduct underlying his juvenile adjudications for

burglary and assault, violated defendant’s federal due process right to confront and

cross-examine witnesses.

As the high court has explained, cross-examination is required in order “to

expose to the jury the facts from which jurors . . . could appropriately draw

inferences relating to the reliability of the witness.” (Davis v. Alaska (1974) 415

U.S. 308, 318.) “[A] criminal defendant states a violation of the Confrontation

Clause by showing that he was prohibited from engaging in otherwise appropriate

cross-examination designed to show a prototypical form of bias on the part of the

witness . . . .” (Delaware v. Van Arsdall (1986) 475 U.S. 673, 680.) The trial

court, of course, has a “wide latitude” of discretion to restrict cross-examination

and may impose reasonable limits on the introduction of such evidence. (Id. at

p. 679.) Thus, “unless the defendant can show that the prohibited cross-

examination would have produced ‘a significantly different impression of [the

witnesses’] credibility’ [citation], the trial court’s exercise of its discretion in this

regard does not violate the Sixth Amendment.” (People v. Frye (1998) 18 Cal.4th

894, 946, quoting Delaware v. Van Arsdall, supra, 475 U.S. at p. 680.)

Here, defendant has failed to show that the cross-examination of Joseph

sought by defense counsel—impeachment based upon Joseph’s juvenile record—

would have produced a significantly different impression of Joseph’s testimony.

The trial court allowed some impeachment of Joseph based on an admitted

juvenile offense, as well as with the threatening note written to his girlfriend.

Joseph’s testimony on direct examination yielded additional evidence unfavorable

33



to his character; he admitted assisting defendant in loading the gun, breaking into

Dorsey’s safe, and keeping items from the robbery. Additionally, the trial court’s

statement that Joseph had been charged in juvenile court with homicide, robbery,

burglary, and other offenses supplied the jury with further impeachment evidence.

Given the wealth of evidence introduced at trial that tended to show Joseph

was no stranger to the criminal justice system, defendant has not shown that

introduction of conduct underlying additional alleged, and perhaps sustained,

juvenile offenses would have produced a significantly different impression of

Joseph’s testimony. We therefore reject defendant’s claim that the trial court

deprived him of his federal confrontation right by disallowing defense counsel

from introducing any evidence of additional juvenile offenses as evidence to

further impeach Joseph.

E. Testimony Regarding Absent Defense Witness

Just prior to testifying at defendant’s trial, Joseph was placed in a holding

cell next to defendant. At trial, Joseph testified that while they were in the holding

cells, defendant told him that he planned to bring forward a witness that would say

that Joseph had admitted killing Dorsey and Martin. When Joseph expressed

confusion, defendant purportedly told him that a witness named “Alfred” would

be testifying at trial. No witness named Alfred testified at trial, and Joseph

testified that he never told anyone that he killed Dorsey and Martin.

At a sidebar conference, defense counsel objected to the introduction of

testimony about “Alfred,” noting that it would be improper for the prosecution to

elicit information identifying which witnesses defendant intended to call later

during the trial. In particular, defense counsel was concerned that the testimony

would make the defendant “look bad in the eyes of the jury” if counsel failed to

call “Alfred.” The trial court overruled the objection.

Defendant contends that the trial court erred in allowing Joseph to testify

about defendant’s holding cell statement, because: 1) the testimony violated the

34



work product privilege, and thus violated defendant’s Sixth Amendment right to

effective assistance of counsel; 2) the trial court failed to conduct a hearing sua

sponte pursuant to Evidence Code section 402; and 3) no limiting instruction was

given to the jury as to the purpose of the statement. Defendant contends that these

errors violated his rights under the Fifth, Eighth, and Fourteenth Amendments.

1. Work Product Privilege

The work product privilege bars the use of statutory discovery procedures

to obtain “[a] writing that reflects an attorney’s impressions, conclusions,

opinions, or legal research or theories” (Code Civ. Proc., § 2018.030, subd. (a)),

and bars discovery of “[t]he work product of an attorney, other than a writing,”

unless denial of discovery would unfairly prejudice a party. (Code Civ. Proc.,

§ 2018.030, subd. (b).) This privilege reflects “the policy of the state to . . . [¶] (a)

[p]reserve the rights of attorneys to prepare cases for trial with that degree of

privacy necessary to encourage them to prepare their cases thoroughly and to

investigate not only the favorable but the unfavorable aspects of those cases[; and]

[¶] (b) [p]revent attorneys from taking undue advantage of their adversary’s

industry and efforts.” (Code Civ. Proc., § 2018.020.)

Assuming that “Alfred” existed and was a witness that defendant thought

would be called at his trial, the disputed testimony does not come within the

purview of the work product privilege. The information was not a written

product, nor does defendant’s statement qualify as an aspect of defense counsel’s

impressions, opinions, legal research or theories “other than a writing.” (See

Dowden v. Superior Court (1999) 73 Cal.App.4th 126, 135.)

Further, as defense counsel did not confirm at sidebar that “Alfred” existed,

or verify whether defendant planned to call him as a witness, it was possible that

defendant’s statement to Joseph did not encompass any information known by

defense counsel, let alone counsel’s work product. Indeed, defendant now

contends that “Alfred” did not exist and that Joseph fabricated defendant’s

35



statement. It is difficult to imagine how an allegedly fabricated statement by

Joseph regarding a nonexistent witness could be considered to be protected work

product.

2. Failure to Hold a Preliminary Fact Hearing

Defendant also argues that the trial court should have held a preliminary

fact hearing pursuant to Evidence Code section 402 to determine whether Joseph

had fabricated his testimony regarding “Alfred.” Evidence Code section 402

provides that “[w]hen the existence of a preliminary fact is disputed, its existence

or nonexistence shall be determined as provided in this article.” (Evid. Code,

§ 402, subd. (a).) Defendant asserts that the trial court had a sua sponte duty to

conduct a preliminary fact hearing to determine “whether the statement had

actually ever been made.” He contends that it is not clear whether defendant and

Joseph had, in fact, been placed in holding cells next to each other and, if so, why

this occurred. Issues regarding a witness’s credibility are properly left to the jury,

and are not a proper subject of an Evidence Code section 402 hearing. Whether a

“statement had actually ever been made” was for the jury to determine. In any

event, defendant did not dispute that he and Joseph had been in adjacent holding

cells at trial and provides no authority supporting his contention that the trial court

has a sua sponte duty to conduct an evidentiary hearing to determine a preliminary

fact.

3. Failure to Give Limiting Instruction

Finally, defendant maintains that the trial court should have instructed the

jury sua sponte that “[defendant’s] alleged statement to [Joseph] was offered for a

limited purpose and that they could only rely on the statement if the fact was

corroborated.”

Even assuming that defendant is correct in noting that the evidence should

only have been admitted for a limited purpose, the trial court had no sua sponte

36



duty to give a limiting instruction. “When evidence is admissible as to one party

or for one purpose and is inadmissible as to another party or for another purpose,

the court upon request shall restrict the evidence to its proper scope and instruct

the jury accordingly.” (Evid. Code, § 355.) However, as this court has noted,

“absent a request by defendant, the trial court has no sua sponte duty to give a

limiting instruction.” (People v. Macias (1997) 16 Cal.4th 739, 746, fn. 3; see

also People v. Farnam (2002) 28 Cal.4th 107, 154.)

F. Jesse Smith’s Assertion of his Fifth Amendment Right in the Jury’s

Presence

During the guilt phase, the prosecution called as a witness Jesse Smith,

defendant’s brother. Jesse answered a few initial questions about the night of the

murders, responding that he did not remember a night when his brother and a 14-

year-old companion came to his house with a safe. At defense counsel’s request, a

sidebar conference was held, during which defense counsel expressed concern that

Jesse might incriminate himself. The trial court appointed separate counsel to

represent Jesse. On advice of counsel, when Jesse was called back to testify, he

asserted his Fifth Amendment right against self-incrimination and declined to

answer any further questions.

Defendant contends that the trial court erred in allowing Jesse to assert his

right against self-incrimination in front of the jury, rather than requiring him to

exercise the privilege outside of the jury’s presence.

This court has noted that “permitting the jury to learn that a witness has

invoked the privilege against self-incrimination serves no legitimate purpose and

may cause the jury to draw an improper inference of the witness’s guilt or

complicity in the charged offense.” (People v. Cudjo (1993) 6 Cal.4th 585, 619;

see also People v. Hill (1992) 3 Cal.4th 959, 992; People v. Mincey (1992) 2

Cal.4th 408, 441.) Indeed, we have noted that “ ‘it is the better practice for the

court to require the exercise of the privilege out of the presence of the jury.’ ”

37



(People v. Frierson (1991) 53 Cal.3d 730, 743, quoting People v. Johnson (1974)

39 Cal.App.3d 749, 759.) We have commended that approach because it operates

“as a means by which to avoid the potentially prejudicial impact of the witness

asserting the privilege before the jury.” (People v. Ford (1988) 45 Cal.3d 431,

441, fn. 6.) We have, however, stopped short of declaring it error for trial courts

to fail to adhere to this practice.7

Even if the trial court erred in allowing Jesse to invoke his right against

self-incrimination in front of the jury, defendant has failed to preserve this claim

on appeal. A defendant may not challenge, for the first time on appeal, the

procedure used by the trial court to find a witness unavailable. (People v. Malone

(1988) 47 Cal.3d 1, 35; People v. Harris (1979) 93 Cal.App.3d 103, 118.)

Because he failed to object at trial to the witness’s invocation of his Fifth

Amendment right in front of the jury, defendant forfeited any argument that the

manner in which Jesse invoked his Fifth Amendment right was inappropriate.

Assuming arguendo that the claim was not forfeited, defendant has failed to

show prejudicial error resulting from Jesse’s invocation of his right against self-

incrimination in the presence of the jury. Defendant contends that the jurors

would speculate as to Jesse’s reasons for asserting his right against self-

incrimination and would draw inferences unfavorable to defendant. However, the

trial court instructed the jury, pursuant to CALJIC No. 2.25, that it was not to draw

any negative inferences about defendant from a witness’s invocation of the right

against self-incrimination.8


7

Here, of course, Jesse answered several questions about the night of the

murders in front of the jury before defense counsel requested the sidebar
conference.
8

At the close of evidence, the trial court instructed the jury: “When a

witness refuses to testify to any matter, relying on the constitutional privilege
against self-incrimination, you must not draw from the exercise of such privilege

(Footnote continued on next page.)

38



We presume the jurors followed this instruction: “[t]he crucial assumption

underlying our constitutional system of trial by jury is that jurors generally

understand and faithfully follow instructions.” (People v. Mickey (1991) 54

Cal.3d 612, 689, fn. 17; see also People v. Delgado (1993) 5 Cal.4th 312, 331.)

Defendant has failed to persuade us that the instruction in this case was inadequate

to prevent any possible prejudice from the alleged error.

G. Exclusion of Statement that Joseph Was the Shooter

Defendant contends that the trial court erred in excluding testimony that

would have identified Joseph as the shooter, and that the exclusion of such

evidence infringed upon his Sixth Amendment right to present a defense and

violated his rights under the Fifth, Eighth, and Fourteenth Amendments.

1. Factual

Background

At trial, defense counsel sought to introduce testimony by Sandra Johnson,

Jesse Smith’s girlfriend at the time of the crimes. In order to assess the

admissibility of Sandra’s testimony, the trial court allowed defense counsel to

examine her outside the presence of the jury.

On the night of the murders, defendant and Joseph arrived at the apartment

shared by Sandra and Jesse Smith. After waking the couple by knocking on the

door, Jesse left the bedroom to speak with defendant and Joseph. Sandra remained

in bed. About 15 minutes later, Jesse returned to the bedroom. About 30 minutes

or an hour after he returned to the bedroom, he told Sandra that “Little Man told

him that he killed two people. That he killed Michelle and that old man.” Joseph

was often called “Little Man.”

(Footnote continued from previous page.)

any inference as to the believability of the witness or as to the guilt or innocence
of the defendant.”

39



The People objected to the proposed testimony, contending that the

statement was multiple hearsay. The trial court sustained the objection,

concluding that Jesse’s statement to Sandra was not admissible as a spontaneous

statement.

2. Hearsay

In order for Sandra’s proposed testimony to be admissible, the hearsay

statements of both Joseph and Jesse must fall within an exception to the hearsay

rule. “A statement within the scope of an exception to the hearsay rule is not

inadmissible on the ground that the evidence of such statement is hearsay evidence

if such hearsay evidence consists of one or more statements each of which meets

the requirements of an exception to the hearsay rule.” (Evid. Code, § 1201, italics

added; see also People v. Reed (1996) 13 Cal.4th 217, 224-225.)

Defendant acknowledges that Sandra’s statement regarding Joseph’s

alleged confession is double hearsay, but maintains that the statement should have

been admitted because two exceptions to the hearsay rule apply. Defendant first

argues that Joseph’s statement to Jesse was admissible as a statement against penal

interest; he then contends that Jesse’s statement to Sandra was admissible as a

spontaneous statement.

The trial court excluded Sandra’s testimony at least in part based on its

conclusion that Jesse’s statement to her was not admissible as a spontaneous

statement. This conclusion was sound. Evidence Code 1240 provides: “Evidence

of a statement is not made inadmissible by the hearsay rule if the statement: [¶] (a)

Purports to narrate, describe, or explain an act, condition, or event perceived by

the declarant; and [¶] (b) Was made spontaneously while the declarant was under

the stress of excitement caused by such perception.” “Whether the requirements

of the spontaneous statement exception are satisfied in any given case is, in

general, largely a question of fact. . . . In performing this task, the court

‘necessarily [exercises] some element of discretion . . . .’ ” (People v. Poggi

40



(1988) 45 Cal.3d 306, 318, quoting Showalter v. Western Pacific R.R. Co. (1940)

16 Cal.2d 460, 469.) Sandra testified during trial that Jesse did not tell her about

Joseph’s alleged statement immediately upon returning to the bedroom, but rather

told her “about 30 minutes or an hour” later. Thus, the trial court did not abuse its

discretion in determining that Jesse’s statement did not satisfy the conditions for

the spontaneous statement hearsay exception.

Because Jesse Smith’s statement was not, as defendant contends,

admissible as a spontaneous statement, we need not examine whether Joseph’s

statement to Jesse was admissible as a statement against penal interest.

3. Jesse Smith’s Unavailability

Defendant contends that he was denied his right to present a defense—that

Joseph had admitted to Jesse Smith that he had murdered Dorsey and Martin—

because the trial court allowed Jesse to invoke his Fifth Amendment right against

self-incrimination when called as a witness for the prosecution. He argues that the

trial court erred in allowing Jesse to invoke his right against self-incrimination

because Jesse’s testimony would not have tended to incriminate him, and that such

error violated defendant’s Sixth Amendment right to present a defense.

This claim is not cognizable on appeal because defendant failed to object at

trial to Jesse Smith’s invocation of his Fifth Amendment right. “[A] defendant

who fails to object to a court’s permitting a witness to assert the privilege against

self-incrimination may not challenge the ruling on appeal.” (People v. Seijas

(2005) 36 Cal.4th 291, 301; see also People v. Malone, supra, 47 Cal.3d at pp. 34-

35.) This bar “is but an application of the general rule that questions relating to

the admissibility of evidence will not be reviewed on appeal in the absence of a

specific and timely objection in the trial court on the ground sought to be urged on

appeal.” (People v. Rogers (1978) 21 Cal.3d 542, 548.)

Even had defendant preserved this claim for appeal, it would fail on the

merits. Defendant never indicated to the court he wanted to call Jesse as a defense

41



witness. Indeed, the court merely ruled that Jesse could invoke his Fifth

Amendment right when called as a prosecution witness. It is not clear from the

record that Jesse would have refused to testify as a defense witness on his

brother’s behalf. Without more, merely permitting a witness called by the

prosecution to invoke the right against self-incrimination does not violate a

defendant’s right to present a defense.

Furthermore, even if defendant had called Jesse as a defense witness, and

the court had permitted him to invoke his privilege against self-incrimination, the

claim would still lack merit. As we have previously held, “[i]t is a bedrock

principle of American (and California) law, embedded in various state and federal

constitutional and statutory provisions, that witnesses may not be compelled to

incriminate themselves.” (People v. Seijas, supra, 36 Cal.4th at p. 304.) As the

United States Supreme Court has stated, this privilege “must be accorded liberal

construction in favor of the right it was intended to secure.” (Hoffman v. United

States (1951) 341 U.S. 479, 486.) In order to assert the privilege against self-

incrimination, a witness must have “reasonable cause to apprehend danger from a

direct answer.” (Ibid.; see also People v. Seijas, supra, 36 Cal.4th at p. 305.)

In assessing whether the court properly allowed Jesse to invoke the

privilege against self-incrimination, we need not decide whether his testimony

actually would have incriminated him, but rather whether it would have given him

“reasonable cause to apprehend danger from the testimony.” (People v. Seijas,

supra, 36 Cal.4th at p. 306.) The questions regarding Jesse’s interaction with

defendant and Joseph on the evening of the murders clearly would have given him

reasonable cause to apprehend danger from answering questions related to his

activities on that night.

Here, it was reasonable for Jesse to apprehend a danger of self-

incrimination from almost any question related to the events on the night of the

murder. He had sheltered defendant and Joseph, helped them open a safe that he

42



knew was stolen, and discussed with defendant the possibility that Martin could

“snitch” if he remained alive. In the instant case, because “all parties—the

prosecution, [the witness’s] own attorney, and defense counsel—believed that [the

witness’s] testimony might be self-incriminating, the court correctly concluded

that he reasonably apprehended danger if he testified.” (People v. Seijas, supra,

36 Cal.4th at p. 306.)9

We also reject defendant’s contention that, even if the trial court correctly

allowed Jesse to invoke his privilege against self-incrimination, his constitutional

rights to confrontation and to present a defense “trumped Jesse’s right to remain

silent.” As we have previously held, a defendant’s constitutional right to confront

witnesses against him does not supersede a witness’s constitutional privilege

against self-incrimination. (People v. Hill, supra, 3 Cal.4th at p. 993.)

Furthermore, the absence of Jesse’s testimony did not deprive defendant of his

ability to present a defense; because Joseph testified at defendant’s trial, defense

counsel was free to cross-examine Joseph about his alleged confession to Jesse.

We therefore reject defendant’s claim that the trial court erred in allowing

Jesse Smith to invoke his right against self-incrimination, as well as his claim that

the trial court, in so deciding, violated defendant’s right to confront witnesses and

right to present a defense.

H. Conviction for Receiving Stolen Property

In count 8 of the information, defendant was charged with receiving stolen

property in violation of Penal Code section 496, former subdivision (1), now


9

Defendant also contends that the trial court had a duty to conduct a hearing

to “explore the basis for Jesse’s invocation of the Fifth Amendment.” However,
defendant fails to recognize that all parties here (including defense counsel) agreed
after a sidebar conference that Jesse could invoke his privilege against self-
incrimination, and provides no authority supporting the contention that the trial
court must hold a hearing even when such agreement exists.

43



subdivision (a). The gravamen of count 8 was defendant’s possession of Dorsey’s

gun at the time of his arrest on March 25, 1991. The information also included a

firearm enhancement in connection with this count, and specifically alleged that

defendant personally used a firearm within the meaning of section 12022.5,

subdivision (a). The trial court denied defendant’s motion pursuant to section

1118.1 to dismiss count 8 and the firearm enhancement as not being supported by

sufficient evidence.

The jury convicted defendant of count 8 and found the firearm-use

allegation to be true. The trial court imposed a concurrent two-year prison term on

count 8, but struck the firearm-use allegation, finding that there was insufficient

evidence supporting the enhancement.

Defendant contends that his conviction for receiving stolen property should

be reversed because he was incorrectly convicted of both stealing and receiving

the same gun. The People concede that the trial court should have dismissed count

8, and we accept the People’s concession.

Common law has long established that “a person may not be convicted of

both stealing and receiving the same property.”10 (People v. Allen (1999) 21

Cal.4th 846, 852; see, e.g., People v. Jaramillo, supra, 16 Cal.3d at p. 757;

People v. Tatum (1962) 209 Cal.App.2d 179, 183; People v. Bausell (1936) 18

Cal.App.2d 15, 18.) The Legislature later codified this principle. (§ 496, subd. (a)

[“[N]o person may be convicted both pursuant to this section and of the theft of

the same property.”].)


10

There are two limited exceptions to the common law rule: “(1) when the

acts of receiving or concealment are completely divorced from the theft, as where
the thief disposes of the property and then, in a separate transaction, receives it
again, and (2) when the thief is a co-conspirator of the receiver.” (People v.
Strong
(1994) 30 Cal.App.4th 366, 371, fn. 5, citing People v. Jaramillo (1976) 16
Cal.3d 752, 759, fn. 8.) Neither exception applies here.

44



In this case, defendant was convicted of both stealing Dorsey’s gun and of

receiving that gun as stolen property. During defendant’s guilt phase trial, the

prosecution argued that the robbery charged in count 4 of the information

encompassed the taking of Dorsey’s gun. The criminal act charged in count 8 was

defendant’s continued possession of Dorsey’s gun at the time of his arrest.

Accordingly, defendant’s conviction on the charge of receiving stolen property

must be reversed.

Defendant additionally argues that his entire guilt phase trial was tainted by

his improper conviction for receiving stolen property, and that evidence admitted

to prove that count was highly prejudicial to the issues of guilt on the remaining

counts, violating defendant’s rights under the Fifth, Eighth, and Fourteenth

Amendments. In particular, defendant focuses upon the evidence that defendant

threatened Darrell Fuller and Jesse Smith with the gun “in a menacing manner”

two days after the murders.

However, the evidence that defendant contends was prejudicial to the

remaining counts would have been properly admitted in the absence of the charge

for receiving the stolen gun. At the guilt phase, the defense centered on a theory

that defendant never fired Dorsey’s weapon and that Joseph was the gunman.

Accordingly, defendant’s possession of the gun several days after the murders, as

well as his use of it in a threatening manner, was highly relevant to both the

murder and robbery charges. As defendant himself notes, his “use of the gun two

days later made it more likely he was the actual shooter.”

Because the evidence admitted in support of the charge of receiving stolen

property was admissible to support the remaining charges against defendant, he

has failed to show that the trial court’s failure to dismiss the charge of receiving

stolen property tainted the entire guilt phase trial.

45



I. Juror

Misconduct

After the penalty phase trial resulted in a death sentence, defendant

requested that the trial court declare a mistrial based on alleged juror misconduct

during the sanity phase of the trial. In support of his motion, defendant presented

the trial court with two declarations from Juror Nicole J., as well as a declaration

by defendant’s investigator relating conversations with other jurors. Defendant

contended that several jurors considered defendant’s behavior during the sanity

phase trial in determining whether he was sane at the time of the offense, which,

defendant argues, was improper because the jurors considered information that

was not part of the evidence received at trial. The trial court declined to declare a

sanity phase mistrial. Defendant now renews his claim, relying upon the juror and

investigator declarations submitted in support of his new trial motion. We

conclude the mistrial motion was properly denied.

Pursuant to Evidence Code section 1150, subdivision (a), evidence of

matters that may have influenced a verdict improperly is inadmissible “to show the

effect of such statement, conduct, condition, or event upon a juror either in

influencing him to assent to or dissent from the verdict or concerning the mental

processes by which it was determined.”11 “This statute distinguishes ‘between

proof of overt acts, objectively ascertainable, and proof of the subjective reasoning

processes of the individual juror, which can be neither corroborated nor


11

“Upon an inquiry as to the validity of a verdict, any otherwise admissible

evidence may be received as to statements made, or conduct, conditions, or events
occurring, either within or without the jury room, of such a character as is likely to
have influenced the verdict improperly. No evidence is admissible to show the
effect of such statement, conduct, condition, or event upon a juror either in
influencing him to assent to or dissent from the verdict or concerning the mental
processes by which it was determined.” (Evid. Code, § 1150, subd. (a).)

46



disproved . . . . The only improper influences that may be proved under [Evidence

Code] section 1150 to impeach a verdict, therefore, are those open to sight,

hearing, and the other senses and thus subject to corroboration.’ ” (People

v. Steele (2002) 27 Cal.4th 1230, 1261, quoting People v. Hutchinson (1969) 71

Cal.2d 342, 349.) To the extent that portions of Juror Nicole J.’s declarations

relate overt acts rather than mental processes, and thus may be admissible under

Evidence Code section 1150, defendant has nevertheless failed to establish juror

misconduct. 12

Juror Nicole J.’s first declaration, as relevant here, stated: “During the

sanity phase deliberations, I brought up in front of the other jurors that Robert

Smith was sane in my opinion. I believed this and expressed my thoughts to the

jurors that Smith was sane during the time of the trial because of his ability to

write questions for his attorney. These points were discussed by other jurors and

agreed that his conduct in the [courtroom] was that of a sane man.” Her second

declaration included the following statement: “During the sanity phase

deliberations, I brought to the attention of the jurors, the fact that I believed Smith

was sane at the time the crime was committed. I based my decision on the fact

that I observed Smith writing notes to his attorneys. When a question was asked

of a witness, he would turn and seemed to discuss it with his attorney and have

complete understanding of what was happening. I interpreted his courtroom

behavior to be the act of a sane person. [¶] During discussions my fellow jurors

agreed with me. Other jurors, [whose] names I do not recall, felt as I did, that


12

The investigator’s declaration, stating that four other jurors told him that

they considered defendant’s courtroom demeanor during the sanity phase trial,
contained only “hearsay or statements which violated Evidence Code section
1150, and hence was of little evidentiary value.” (People v. Schmeck (2005) 37
Cal.4th 240, 306, fn. 23.)

47



Smith was sane at the time the crime was committed, because of his behavior

during the trial.”

Defendant argues that Juror Nicole J.’s discussion with the other jurors

about defendant’s demeanor during trial was misconduct because it demonstrates

that the jury improperly considered information that was not part of the evidence

received at trial and relied on this evidence to determine that defendant was sane at

the time of the offenses. Defendant asserts the principle that it is misconduct for a

prosecutor to comment on a defendant’s demeanor off the witness stand in

criminal trials of guilt. (See, e.g., People v. Heishman (1988) 45 Cal.3d 147, 197

(Heishman); People v. Boyette (2002) 29 Cal.4th 381, 434.) This rule, however, is

not absolute. In Heishman, where a defendant presented his character as a

mitigating factor during the penalty phase of his trial, we held that it was not

misconduct for the prosecutor to refer to his facial expressions because it was

proper for the jury to have drawn inferences as to the defendant’s character based

on their observations of his demeanor. (See Heishman, supra, 45 Cal.3d at

p. 197.) Moreover, defendant cites no authority for the principle that it is

misconduct for a jury to discuss a defendant’s demeanor during a sanity trial.

We need not decide whether, under any circumstance, it may be

misconduct for a jury to discuss a defendant’s off-the-stand demeanor during

sanity phase deliberations. Here, a central question during the sanity phase was

whether defendant suffered from organic mood disorder, bipolar disorder,

antisocial personality disorder, or other cognitive or mental disorders. Defense

expert Dr. Woods testified that defendant suffered from “organic mood disorder

with features of a manic depressive or bipolar disorder,” and that when treated

with lithium his behavior improved. He testified also that if the defendant were a

sociopath or psychopath, no amount of lithium would control his criminal or

violent behavior. Defense expert Dr. Blinder testified that defendant is a “classic

48



psychopath,” and he suspected “that if we filled this room with lithium carbonate,

and administered it to Mr. Smith, it would have no appreciable effect on his

conduct.” Subsequently, defense counsel, noting that defendant had a level of

lithium in his blood within the range that is usually therapeutic, asked Dr. Samuel

Benson, also a defense witness, whether defendant’s lithium blood level during

trial was controlling his mood swings at that time. Dr. Benson responded, “Not

from the behavior that I’ve seen in court today and Friday. Where he’s, you

know, jollying with people and talking all the time and doing the kinds of things

that I ordinarily would consider giving lithium for . . . .” Under these

circumstances, where, as prompted by defense counsel, a defense expert expressly

analyzed defendant’s demeanor during trial, we conclude that it was not

misconduct for the jury to discuss his demeanor during deliberations.

J. Constitutionality of California’s Capital Sentencing Scheme

Defendant argues that various features of California’s capital sentencing

scheme violate the federal and California Constitutions. We previously have

considered and consistently rejected these challenges. Because defendant

provides no persuasive reason why we should reexamine our capital punishment

precedent, we reject these challenges.


California’s capital sentencing scheme adequately narrows the class of

offenders eligible for the death penalty. (People v. Stitely (2005) 35 Cal.4th 514,

573; People v. Bolden (2002) 29 Cal.4th 515, 566; People v. Crittenden (1994) 9

Cal.4th 83, 154.) The special circumstances outlined by the sentencing scheme

are not overinclusive in scope. (People v. Ray, supra, 13 Cal.4th at p. 356.)

Section 190.2, which lists the special circumstances that narrow the class of

murders for which the death penalty can be utilized, adequately provides criteria

for identifying and restricting which murders are eligible for the death penalty.

(People v. Demetrulias (2006) 39 Cal.4th 1, 43; People v. Kipp (2001) 26 Cal.4th

49



1100, 1137.) Likewise, section 190.3, factor (a), which directs the jury to consider

in determining the penalty the “circumstances of the crime,” has consistently

survived constitutional challenges. (People v. Stitely, supra, 35 Cal.4th at p. 574;

People v. Bolden, supra, 29 Cal.4th at p. 566.) Consideration of the factors in

aggravation outlined by section 190.3 does not invite arbitrary or capricious

sentencing. (People v. Visciotti (1992) 2 Cal.4th 1, 76.)

A jury is not required to find beyond a reasonable doubt that (1) individual

aggravating factors exist (except for other crimes); (2) the aggravating factors

substantially outweigh the mitigating ones; or (3) death is the appropriate penalty.

(People v. Avila (2006) 38 Cal.4th 491, 614; People v. Snow (2003) 30 Cal.4th 43,

126; People v. Kipp, supra, 26 Cal.4th 1100, 1137.) These conclusions are not

modified by the recent United States Supreme Court decisions in Apprendi v. New

Jersey (2000) 530 U.S. 466, Ring v. Arizona (2002) 536 U.S. 584, and Blakely v.

Washington (2004) 542 U.S. 296. (People v. Morrison (2004) 34 Cal.4th 698,

709.)

Moreover, “ ‘[b]ecause the determination of penalty is essentially moral

and normative [citation], and therefore different in kind from the determination of

guilt,’ the federal Constitution does not require the prosecution to bear the burden

of proof or burden of persuasion at the penalty phase. (People v. Hayes (1990) 52

Cal.3d 577, 643 . . . .)” (People v. Sapp (2003) 31 Cal.4th 240, 317; see also

People v. Bemore (2000) 22 Cal.4th 809, 859.)

Further, jurors need not agree unanimously on the existence of particular

factors in aggravation. (People v. Boyette (2002) 29 Cal.4th 381, 466.) “While all

the jurors must agree death is the appropriate penalty, the guided discretion

through which jurors reach their penalty decision must permit each juror

individually to assess” the potential aggravating factors. (People v. Demetrulias,

supra, 39 Cal.4th at p. 41.) “The series of normative judgments involved in

deciding whether a particular circumstance is indeed aggravating and, if so, what

50



weight it should be given, cannot be fitted into a scheme of unanimous jury

factfinding.” (Ibid.)

The trial court is not required to instruct the jury that there is no burden of

proof at the penalty phase. (People v. Carpenter (1997) 15 Cal.4th 312, 417-418.)

Nor is there a constitutional requirement that the jury make written findings

disclosing the reasons for the penalty determination. (People v. Fauber (1992) 2

Cal.4th 792, 859; People v. Belmontes (1988) 45 Cal.3d 744, 805.) Further,

intercase proportionality review is not constitutionally required. (People v. Lucero

(2000) 23 Cal.4th 692, 741; People v. Majors (1998) 18 Cal.4th 385, 432.)

The jury may consider unadjudicated offenses as aggravating offenses.

(People v. Sapp, supra, 31 Cal.4th at p. 316; People v. Bolden, supra, 29 Cal.4th

at p. 566.) The use of adjectives like “extreme” and “substantial” in the list of

potential mitigating factors does not impermissibly restrict the jury’s consideration

of mitigating factors. (People v. Harris (2005) 37 Cal.4th 310, 365; People v.

Smith (2002) 30 Cal.4th 581, 642.) Finally, neither the federal nor the state

Constitution requires the trial court to instruct the jury that section 190.3’s

statutory mitigating factors are relevant solely as potential mitigating factors, and

not as aggravating factors. (People v. Sanders (1995) 11 Cal.4th 475, 564.)

Defendant’s arguments that California’s death penalty law deprives capital

defendants of equal protection are not persuasive. As stated above, we have

established that intercase proportionality review, jury unanimity on aggravating

circumstances, written findings disclosing the reasons for the penalty

determination, and a requirement that the prosecution bear the burden of proof or

burden of persuasion at the penalty phase are not constitutionally required. (See

People v. Lucero, supra, 23 Cal.4th at p. 741; People v. Boyette, 29 Cal.4th at p.

466; People v. Fauber, supra, 2 Cal.4th at p. 859; People v. Sapp, supra, 31

Cal.4th at p. 317.) A successful equal protection claim must show that “ ‘ “the

state has adopted a classification that affects two or more similarly situated groups

51



in an unequal manner.” ’ ” (People v. Massie (1998) 19 Cal.4th 550, 571.) “[B]y

definition, a defendant in a non-capital case is not similarly situated to his capital

case counterpart for the obvious reason that the former’s life is not on the line.”

(People v. Superior Court (Strum) (1992) 9 Cal.App.4th 172, 185.)

Finally, “[i]nternational law does not compel the elimination of capital

punishment in California.” (People v. Snow, supra, 30 Cal.4th at p. 127.)

III. DISPOSITION

Defendant’s conviction for receiving stolen property (§ 496, former subd.

(1), now subd. (a)) is reversed, and the judgment otherwise is affirmed.

MORENO, J.



WE CONCUR: GEORGE, C. J.
KENNARD,

J.

BAXTER,

J.

WERDEGAR,

J.

CHIN,

J.

CORRIGAN,

J.

52



See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Smith
__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No.
S035348
Date Filed: February 5, 2007
__________________________________________________________________________________

Court:
Superior
County: Contra Costa
Judge: Richard E. Arnason

__________________________________________________________________________________

Attorneys for Appellant:

Scott F. Kauffman, under appointment by the Supreme Court, for Defendant and Appellant.




__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Assistant Attorney
General, Gerald A. Engler, Assistant Attorney General, Ronald S. Matthias and Dorian Jung, Deputy
Attorneys General, for Plaintiff and Respondent.











Counsel who argued in Supreme Court (not intended for publication with opinion):

Scott F. Kauffman
101 Second Street, 6th Floor
San Francisco, CA 94159
(415) 536-1132

Dorian Jung
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-1342

Opinion Information
Date:Docket Number:
Mon, 02/05/2007S035348

Parties
1The People (Respondent)
Represented by Attorney General - San Francisco Office
Mr. Dorian Jung, Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA

2Smith, Robert Lee (Appellant)
San Quentin State Prison
Represented by Scott F. Kauffman
Attorney at Law
101 Second Street, 6th Floor
San Francisco, CA


Disposition
Feb 5 2007Opinion: Affirmed

Dockets
Sep 30 1993Judgment of death
 
Oct 5 1993Filed certified copy of Judgment of Death Rendered
  9-30-93.
Jun 19 1998Filed:
  Request by Inmate for Dual representation.
Jun 19 1998Filed:
  Request by Counsel for Dual representation.
Jun 22 1998Counsel appointment order filed
  Scott F. Kauffman Is appointed to represent Applt for Both the direct Appeal & Related State Habeas Corpus/Executive Clemency Proceedings.
Aug 17 1998Application for Extension of Time filed
  By Applt to request correction of the Record.
Aug 18 1998Extension of Time application Granted
  To Applt To 10-13-98 To request Corr. of Record.
Aug 21 1998Application for Extension of Time filed
  By Applt to request correction of the Record.
Aug 24 1998Extension of Time application Granted
  To 10-13-98 To request Record correction
Sep 16 1998Compensation awarded counsel
 
Oct 13 1998Application for Extension of Time filed
  By Applt to request Record correction
Oct 15 1998Extension of Time application Granted
  To 12-14-98 To request Record correction
Dec 16 1998Application for Extension of Time filed
  By Applt to request correction of the Record.
Dec 23 1998Extension of Time application Granted
  To 2-16-99 To request Record correction
Feb 16 1999Application for Extension of Time filed
  By Applt to request correction of the Record.
Feb 19 1999Filed:
  Suppl Decl of Scott Kauffman in support of Applic. for Eot.
Feb 23 1999Extension of Time application Granted
  To 4-19-99 To request Record correction
Apr 16 1999Application for Extension of Time filed
  By Applt to request correction of the Record.
Apr 22 1999Extension of Time application Granted
  To 6-18-99 To request Record correction
May 27 1999Change of Address filed for:
  Atty General - S.F. Office.
Jun 11 1999Filed:
  Resp's Amended Decl of Service.
Jun 21 1999Application for Extension of Time filed
  By Applt to request correction of the Record.
Jun 24 1999Extension of Time application Granted
  To Applt To 8-17-99 To request correction of the Record. no further Extensions of time Are Contemplated.
Jul 7 1999Received copy of appellant's record correction motion
  applt's first request for correction, additional record & to settle the record (9 pp.)
Jul 8 1999Compensation awarded counsel
 
Sep 18 2000Change of Address filed for:
  Atty Scott F. Kauffman
Nov 2 2000Counsel's status report received (confidential)
  from atty Kauffman.
Feb 15 2001Counsel's status report received (confidential)
  from atty Kauffman.
Apr 20 2001Counsel's status report received (confidential)
  from atty Kauffman.
May 23 2001Appellant's opening brief letter sent, due:
  7-2-2001.
May 23 2001Record on appeal filed
  C-51 (18549 Pp.) and R-51 (6,656 Pp.) including material under seal; Clerk's Transcript includes 13,190 pages of Juror Questionnaires.
Jun 25 2001Counsel's status report received (confidential)
  from atty Kauffman.
Jul 2 2001Application for Extension of Time filed
  to file AOB. (1st request)
Jul 6 2001Filed:
  (supplemental) declaration of service by mail of request for extension of time.
Jul 9 2001Extension of Time application Granted
  To 8/31/2001 to file AOB.
Sep 4 2001Counsel's status report received (confidential)
  from atty Kauffman.
Sep 4 2001Application for Extension of Time filed
  To file AOB. (2nd request)
Sep 13 2001Extension of Time application Granted
  To 10/30/2001 to file AOB.
Nov 2 2001Application for Extension of Time filed
  To file AOB. (3rd request)
Nov 2 2001Counsel's status report received (confidential)
  from atty Kauffman.
Nov 6 2001Extension of Time application Granted
  To 12/31/2001 to file AOB.
Dec 21 2001Change of Address filed for:
  atty. Scott F. Kauffman.
Dec 31 2001Request for extension of time filed
  To file AOB. (4th request)
Dec 31 2001Counsel's status report received (confidential)
  from atty Kauffman.
Jan 2 2002Compensation awarded counsel
  Atty Kauffman
Jan 3 2002Extension of time granted
  To 3/1/2002 to file AOB.
Mar 4 2002Request for extension of time filed
  To file AOB. (5th request)
Mar 6 2002Extension of time granted
  To 4/30/2002 to file AOB. Counsel anticipates filing the brief by September 2002. Only three further extensions totaling 150 additional days are contemplated.
May 3 2002Counsel's status report received (confidential)
  from atty Kauffman.
May 3 2002Request for extension of time filed
  To file AOB. (6th request)
May 7 2002Extension of time granted
  To 7/2/2002 to file AOB. Counsel anticipates filing the brief by 11/1/2002. Only two further extensions totaling 122 additional days are contemplated.
Jul 10 2002Request for extension of time filed
  To file AOB. (7th request)
Jul 10 2002Counsel's status report received (confidential)
 
Jul 16 2002Extension of time granted
  To 9/3/2002 to file AOB. Counsel anticipates filing that brief by 1/2/2003. Two further extensions totaling 120 additional days will be granted.
Aug 30 2002Request for extension of time filed
  to file AOB. (8th request)
Aug 30 2002Counsel's status report received (confidential)
 
Sep 4 2002Extension of time granted
  to 11-4-2002 to file AOB. The court anticipates that after that date, only one further extension totaling 60 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Nov 5 2002Counsel's status report received (confidential)
 
Nov 5 2002Request for extension of time filed
  To file appellant's opening brief. (9th request)
Nov 12 2002Extension of time granted
  To 1/3/2003 to file appellant's opening brief. The court anticipates that after that date, no further extension will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisgint attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Dec 31 2002Counsel's status report received (confidential)
 
Dec 31 2002Request for extension of time filed
  To file appellant's opening brief. (10th request)
Jan 6 2003Extension of time granted
  To 3/3/2003 to file appellant's opening brief. Extension is granted based upon counsel Scott F. Kauffman's representation that he anticiaptes filing that brief by 3/3/2003. After that date, no further extension is contemplated.
Jan 13 2003Motion for access to sealed record filed
  Appellant's "Ex-Parte Request to Review Sealed Records."
Jan 13 2003Compensation awarded counsel
  Atty Kauffman
Jan 17 2003Opposition filed
  by respondent "To Ex-Parte Request To Review Sealed Records".
Mar 3 2003Counsel's status report received (confidential)
  from atty Kauffman.
Mar 10 2003Request for extension of time filed
  to file appellant's opening brief. (11th request)
Mar 12 2003Extension of time granted
  to 5/2/2003 to file appellant's opening brief. After that date, only one further extension totaling about 30 additional days will be granted. Extension is granted based upon counsel Scott F. Kauffman's representation that he anticipates filing that brief by 6/2/2003.
May 2 2003Request for extension of time filed
  to file appellant's opening brief. (12th request)
May 2 2003Counsel's status report received (confidential)
  from atty Kauffman.
May 6 2003Compensation awarded counsel
  Atty Kauffman
May 7 2003Extension of time granted
  to 6/2/2003 to file appellant's opening brief. Extension is granted based upon counsel Scott F. Kauffman's representation that he anticipates filing that brief by 6/2/2003. After that date, no further extension will be granted.
May 12 2003Counsel's status report received (confidential)
  from atty Kauffman.
Jun 2 2003Request for extension of time filed
  to file appellant's opening brief. (13th request)
Jun 10 2003Extension of time granted
  to 8/4/2003 to file appellant's opening brief. After that date, no further extension will be granted. Extension is granted based upon counsel Scott F. Kauffman's representation that he anticipates filing that brief by 8/2/2003.
Jul 23 2003Exhibits lodged
  defendant's #28.
Aug 4 2003Request for extension of time filed
  to file appellant's opening brief. (14th request)
Aug 7 2003Extension of time granted
  to 10/2/2003 to file appellant's opening brief. Extension is based upon counsel Scott F. Kauffman's representation that he anticipates filing that brief by 10/2/2003. After that date, no further extension will be granted.
Oct 3 2003Counsel's status report received (confidential)
  from attorney Kauffman
Oct 9 2003Request for extension of time filed
  to file appellant's opening brief. (15th request)
Oct 17 2003Extension of time granted
  to 12/2/2003 to file appellant's opening brief. Extension is granted based upon counsel Scott F. Kauffman's representation that he anticiaptes filing that brief by 12/2/2003. After that date, no further extension will be granted.
Dec 3 2003Request for extension of time filed
  to file appellant's opening brief. (16th request)
Dec 9 2003Extension of time granted
  to 1-2-2004 to file AOB. After that date, no further extension will be granted. Extension granted based upon counsel Scott F. Kauffman's representation that he anticipates filing the brief by 1-2-2004.
Dec 16 2003Appellant's opening brief filed
  (245 pp.)
Dec 26 2003Counsel's status report received (confidential)
  from atty Kauffman.
Dec 29 2003Filed:
  confidential declaration of attorney Scott F. Kauffman.
Jan 5 2004Counsel's status report received (confidential)
  (supplemental) from atty Kauffman.
Jan 14 2004Compensation awarded counsel
  Atty Kauffman
Jan 15 2004Request for extension of time filed
  to file respondent's brief. (1st request)
Jan 20 2004Extension of time granted
  to 3/15/2004 to file respondent's brief.
Mar 15 2004Request for extension of time filed
  to file respondent's brief. (2nd request)
Mar 19 2004Extension of time granted
  to 5/14/2004 to file the respondent's brief. After that date, only three further extensions totaling about 150 additional days will be granted. Extension is granted based upon Deputy Attorney General Dorian Jung's representation that she anticipates filing that brief by 10/15/2004.
May 14 2004Request for extension of time filed
  to file respondent's brief. (3rd request)
May 19 2004Extension of time granted
  to 7/13/2004 to file respondent's brief. After that date, only two further extensions totaling about 90 additional days will be granted. Extension is granted based upon Deputy Attorney General Dorian Jung's representation that she anticipates filing that brief by 10/15/2004.
Jul 16 2004Request for extension of time filed
  to file respondent's brief. (4th request)
Jul 21 2004Extension of time granted
  to 9/13/2004 to file respondent's brief. After that date, only one further extension totaling about 32 additional days will be granted. Extension is granted based upon Deputy Attorney General Dorian Jung's representation that he anticipates filing that brief by 10/15/2004.
Aug 25 2004Counsel's status report received (confidential)
 
Sep 13 2004Request for extension of time filed
  to file respondent's brief. (5th request)
Sep 15 2004Extension of time granted
  to 10/15/2004 to file respondent's brief. Extension is granted based upon Deputy Attorney General Dorian Jung's representation that he anticipates filing that brief by 10/15/2004. After that date, no further extension will be granted.
Oct 14 2004Respondent's brief filed
  (31031 words; 116 pp.)
Nov 4 2004Request for extension of time filed
  to file appellant's reply brief. (1st request)
Nov 5 2004Counsel's status report received (confidential)
  from atty Kauffman.
Nov 18 2004Filed:
  Supplemental declaration in support of application for extension of time to file appellant's reply brief.
Nov 18 2004Motion to withdraw as counsel filed
  by atty Kaufmann to withdraw as habeas corpus counsel.
Nov 22 2004Extension of time granted
  to 1/3/2005 to file appellant's reply brief. After that date, only five further extensions totaling about 285 additional days will be granted. Extension is granted based upon counsel Scott F. Kauffman's representation that he anticipates filing that brief by 10/15/2005.
Dec 15 2004Request Denied
  The application of Scott F. Kauffman, filed November 18, 2004, to withdraw as appointed counsel from the state habeas corpus/executive clemency proceedings related to the above automatic appeal now pending in this court, is denied without prejudice. (See Supreme Ct. Policies Regarding Cases Arising From Judgments of Death, policy 2 ["Withdrawal of counsel"].)
Jan 5 2005Counsel's status report received (confidential)
 
Jan 5 2005Request for extension of time filed
  to file appellant's reply brief. (2nd request)
Jan 6 2005Extension of time granted
  to 3/3/2005 to file appellant's reply brief. After that date, only four further extensions totaling about 225 additional days will be granted. Extension is granted based upon counsel Scott F. Kauffman's representation that he anticipates filing that brief by 10/15/2005.
Mar 7 2005Change of contact information filed for:
  attorney Scott F. Kauffman.
Mar 7 2005Request for extension of time filed
  to file appellant's reply brief. (3rd request)
Mar 7 2005Counsel's status report received (confidential)
 
Mar 14 2005Extension of time granted
  to 5/3/2005 to file appellant's reply brief. After that date, only three further extensions totaling about 165 additional days will be granted. Extension is granted based upon counsel Scott F. Kauffman's representation that he anticipates filing that brief by 10/15/2005.
May 6 2005Request for extension of time filed
  to file reply brief. (4th request)
May 6 2005Counsel's status report received (confidential)
 
May 11 2005Counsel's status report received (confidential)
  (supplemental)
May 11 2005Extension of time granted
  to 7/5/2005 to file appellant's reply brief. After that date, only two further extensions totaling about 105 additional days will be granted. Extension is granted based upon counsel Scott Kauffman's representation that he anticipates filing that brief by 10/15/2005.
Jul 5 2005Request for extension of time filed
  to file reply brief. (5th request)
Jul 5 2005Counsel's status report received (confidential)
 
Jul 8 2005Extension of time granted
  to 9-6-2005 to file reply brief. After that date, only one further extension totaling about 45 additional days will be granted. Extension granted based upon counsel Scott F. Kauffman's representation that he anticipates filing the brief by October 2005.
Jul 13 2005Order filed
  Appellant's "Ex-parte Request to Review Sealed Records," filed on January 13, 2003, is granted in part and denied in part. The motion is granted to the following extent: The clerk is directed to unseal the following portions of the record on appeal, and to provide appellant with a copy thereof: 1. Reporter's Transcript [Jan. 16, 1992] pages 190-193; 2. Reporter's Transcript, volume XXII, pages 4837-4841; 3. Reporter's Transcript, volume XXIV, pages 5323-5329, 5408-5415; 4. Reporter's Transcript, volume XXV, pages 5482-5484. The clerk is further directed to provide appellant with a copy of the following portions of the record on appeal, but otherwise to maintain them under seal: 1. Reporter's Transcript, volume I, pages 5-20; 2. Clerk's Transcript, volume V, pages 1263-1275, 1370-1390, 1427-1439; 3. Clerk's Transcript, volume VI, pages 1750-1763, 1786-1974, 1976-1982, 1995-1996; 4. Clerk's Transcript, volume VII, pages 2019-2028. On the court's own motion, the clerk is directed to provide respondent with a copy of the following portions of the record on appeal: 1. Reporter's Transcript [Jan. 16, 1992] pages 190-193; 2. Reporter's Transcript, volume XXII, pages 4837-4841; 3. Reporter's Transcript, volume XXIV, pages 5323-5329, 5408-5415; 4. Reporter's Transcript, volume XXV, pages 5482-5484. On the court's own motion, the clerk is further directed to provide respondent with a copy of the following sealed portions of the record on appeal: Clerk's Transcript, volume VI, pages 1786-1974, 1976-1982. Counsel for appellant and counsel for respondent are ordered not to use or disclose the contents of pages 1786-1974 and 1976-1982 of volume VI of the Clerk's Transcript, except in the appeal from the judgment of death herein and/or in any habeas corpus or executive clemency proceeding seeking relief from that judgment, and then only in papers themselves submitted under seal. Because it appears that certain records filed under seal were mistakenly included in the normal record on appeal, the clerk of this court is directed to return to the Superior Court Clerk of Contra Costa County volumes V, VI, and VII of the Clerk's Transcripts. The Superior Court Clerk is directed to redact the following pages from the Clerk's Transcript and retransmit the redacted volumes to this court for filing no later than August 12, 2005: 1. Clerk's Transcript, volume V, pages 1263-1275, 1370-1390, 1427-1439; 2. Clerk's Transcript, volume VI, pages 1750-1763, 1786-1982, 1995-1996; 3. Clerk's Transcript, volume VII, pages 2019-2028. The parties may retain their copies of volumes V through VII of the Clerk's Transcript, as long as they do not publicly disclose any information from the pages that remain sealed pursuant to this order. The clerk of this court is directed to strike from the record sealed page 1975 of the Clerk's Transcript, volume VI, because it is unrelated to any proceeding in this matter and appears to have been mistakenly included in the appellate record. In all other respects, appellant's motion is denied. George, C.J., was absent and did not participate.
Jul 14 2005Note:
  volumes V, VI and VII of clerk's transcript returned to superior court pursuant to court's order of 7-13-2005.
Aug 5 2005Note:
  record arrived from superior court.
Aug 5 2005Received:
  Clerk's transcript volumes V, VI & VII and redacted pages under seal pursuant to court's order of 7/13/2005.
Sep 8 2005Counsel's status report received (confidential)
 
Sep 12 2005Request for extension of time filed
  to file appellant's reply brief. (6th request)
Sep 19 2005Filed:
  Supplemental declaration in support of application for extension of time to file reply brief.
Sep 20 2005Extension of time granted
  to 11/3/2005 to file appellant's reply brief. Extension is granted based upon counsel Scott F. Kauffman's representation that he anticipates filing that brief by 11/3/2005. After that date, no further extension will be granted.
Nov 3 2005Appellant's reply brief filed
  (12337 words; 54 pp. - excluding attached exhibits)
Nov 16 2005Change of contact information filed for:
  attorney Scott F. Kauffman.
Nov 17 2005Counsel's status report received (confidential)
 
Nov 21 2005Counsel's status report received (confidential)
 
Nov 22 2005Compensation awarded counsel
  Atty Kauffman
Dec 29 2005Counsel's status report received (confidential)
 
Dec 30 2005Compensation awarded counsel
  atty Kauffman
Mar 2 2006Counsel's status report received (confidential)
 
Mar 8 2006Compensation awarded counsel
  Atty Kauffman
Apr 5 2006Counsel's status report received (confidential)
 
Apr 6 2006Filed:
  Declaration of attorney Scott F. Kauffman (confidential).
Apr 11 2006Compensation awarded counsel
  atty Kauffman
Jun 6 2006Related habeas corpus petition filed (concurrent)
  No. S144019
Jun 28 2006Compensation awarded counsel
  Atty Kauffman
Jul 27 2006Exhibit(s) lodged
  People's 32
Sep 27 2006Oral argument letter sent
  to counsel, advising that the court could schedule this case for argument as early as the November calendar, to be held the week of Nov. 6, 2006, in Sacramento. 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.
Oct 3 2006Case ordered on calendar
  November 7, 2006 at 1:30 in Sacramento.
Oct 12 2006Filed letter from:
  Deputy Attorney General Dorian Jung, dated October 10, 2006, re focus issues for oral argument.
Oct 16 2006Filed letter from:
  attorney Scott F. Kauffman, dated October 13, 2006, re focus issues for oral argument.
Oct 18 2006Filed:
  "Declaration of Service by Mail" of appellant's focus issues letter.
Nov 7 2006Cause argued and submitted
 
Dec 14 2006Compensation awarded counsel
  Atty Kauffman
Feb 2 2007Notice of forthcoming opinion posted
 
Feb 5 2007Opinion filed: Judgment affirmed in full
  Opinion by Moreno, J. -----joined by George, C.J., Kennard, Baxter, Werdegar, Chin, & Corrigan, JJ.
Feb 20 2007Rehearing petition filed
  by appellant. (24 pp.) (petition lacks required certificate of word count, counsel to submit ASAP.)
Feb 26 2007Time extended to consider modification or rehearing
  The time for granting or denying rehearing in the above-entitled case is hereby extended to and including May 4, 2007, or the date upon which rehearing is either granted or denied, whichever occurs first.
Apr 11 2007Rehearing denied
  The petition for rehearing is denied. George, C.J., was absent and did not participate.
Apr 11 2007Remittitur issued (AA)
 
Apr 12 2007Exhibit(s) returned
  People's 32 and Defendant's 28.
Apr 17 2007Received:
  acknowledgment of receipt of remittitur.
Apr 17 2007Received:
  acknowledgment of receipt of exhibits.
Apr 27 2007Order filed (150 day statement)
 
Jul 10 2007Received:
  Appellant's petition for writ of Certiorari. (20 pp. excluding attachments)
Jul 16 2007Received:
  letter from U.S.S.C.; dated July 12, 2007; advising cert petn. filed on July 9, 2007; No. 07-5272.
Nov 5 2007Received:
  letter from U.S.S.C., dated October 29, 2007, advising that the petition for writ of certiorari was denied that date.
Jan 31 2008Compensation awarded counsel
  Atty Kauffman
Feb 8 2008Compensation awarded counsel
  Atty Kauffman
Jun 25 2008Compensation awarded counsel
  Atty Kauffman
Jan 8 2009Compensation awarded counsel
  Atty Kauffman

Briefs
Dec 16 2003Appellant's opening brief filed
 
Oct 14 2004Respondent's brief filed
 
Nov 3 2005Appellant's reply brief filed
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website