IN THE SUPREME COURT OF CALIFORNIA
Plaintiff and Respondent,
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.
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
All further undesignated statutory references are to the Penal Code.
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
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
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
Michelle Dorsey was a biological male who dressed and lived as a female.
In this opinion, we will refer to Dorsey as a female.
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
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
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
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
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.
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.
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.
C. Sanity Phase 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
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
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
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.
D. Penalty Phase 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
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
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.
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
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
Defendant’s primary counselor during one of his CYA placements recalled
that defendant was pleasant and performed well most of the time. He conceded
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.
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
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.”
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.
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
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
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
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
“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.”
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.)
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.)
“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.)
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
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.
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
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
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
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.
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
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
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
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
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
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
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.
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
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.)
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
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.)
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
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.
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
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.
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
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,
The result of Joseph’s juvenile adjudication for these offenses is not evident
from the record.
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
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
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
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
statement. It is difficult to imagine how an allegedly fabricated statement by
Joseph regarding a nonexistent witness could be considered to be protected work
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
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
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
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
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.’ ”
(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
Here, of course, Jesse answered several questions about the night of the
murders in front of the jury before defense counsel requested the sidebar
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.)
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.
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.”
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
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
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
(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
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
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
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.
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
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.”].)
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.
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.
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
“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).)
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
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
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.)
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
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
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,
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
weight it should be given, cannot be fitted into a scheme of unanimous jury
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
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.)
Defendant’s conviction for receiving stolen property (§ 496, former subd.
(1), now subd. (a)) is reversed, and the judgment otherwise is affirmed.
WE CONCUR: GEORGE, C. J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Smith
Original Appeal XXX
Opinion No. S035348
Date Filed: February 5, 2007
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
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
|1||The People (Respondent)|
Represented by Attorney General - San Francisco Office
Mr. Dorian Jung, Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA
|2||Smith, Robert Lee (Appellant)|
San Quentin State Prison
Represented by Scott F. Kauffman
Attorney at Law
101 Second Street, 6th Floor
San Francisco, CA
|Feb 5 2007||Opinion: Affirmed|
|Sep 30 1993||Judgment of death|
|Oct 5 1993||Filed certified copy of Judgment of Death Rendered|
|Jun 19 1998||Filed:|
Request by Inmate for Dual representation.
|Jun 19 1998||Filed:|
Request by Counsel for Dual representation.
|Jun 22 1998||Counsel 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 1998||Application for Extension of Time filed|
By Applt to request correction of the Record.
|Aug 18 1998||Extension of Time application Granted|
To Applt To 10-13-98 To request Corr. of Record.
|Aug 21 1998||Application for Extension of Time filed|
By Applt to request correction of the Record.
|Aug 24 1998||Extension of Time application Granted|
To 10-13-98 To request Record correction
|Sep 16 1998||Compensation awarded counsel|
|Oct 13 1998||Application for Extension of Time filed|
By Applt to request Record correction
|Oct 15 1998||Extension of Time application Granted|
To 12-14-98 To request Record correction
|Dec 16 1998||Application for Extension of Time filed|
By Applt to request correction of the Record.
|Dec 23 1998||Extension of Time application Granted|
To 2-16-99 To request Record correction
|Feb 16 1999||Application for Extension of Time filed|
By Applt to request correction of the Record.
|Feb 19 1999||Filed:|
Suppl Decl of Scott Kauffman in support of Applic. for Eot.
|Feb 23 1999||Extension of Time application Granted|
To 4-19-99 To request Record correction
|Apr 16 1999||Application for Extension of Time filed|
By Applt to request correction of the Record.
|Apr 22 1999||Extension of Time application Granted|
To 6-18-99 To request Record correction
|May 27 1999||Change of Address filed for:|
Atty General - S.F. Office.
|Jun 11 1999||Filed:|
Resp's Amended Decl of Service.
|Jun 21 1999||Application for Extension of Time filed|
By Applt to request correction of the Record.
|Jun 24 1999||Extension 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 1999||Received copy of appellant's record correction motion|
applt's first request for correction, additional record & to settle the record (9 pp.)
|Jul 8 1999||Compensation awarded counsel|
|Sep 18 2000||Change of Address filed for:|
Atty Scott F. Kauffman
|Nov 2 2000||Counsel's status report received (confidential)|
from atty Kauffman.
|Feb 15 2001||Counsel's status report received (confidential)|
from atty Kauffman.
|Apr 20 2001||Counsel's status report received (confidential)|
from atty Kauffman.
|May 23 2001||Appellant's opening brief letter sent, due:|
|May 23 2001||Record 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 2001||Counsel's status report received (confidential)|
from atty Kauffman.
|Jul 2 2001||Application for Extension of Time filed|
to file AOB. (1st request)
|Jul 6 2001||Filed:|
(supplemental) declaration of service by mail of request for extension of time.
|Jul 9 2001||Extension of Time application Granted|
To 8/31/2001 to file AOB.
|Sep 4 2001||Counsel's status report received (confidential)|
from atty Kauffman.
|Sep 4 2001||Application for Extension of Time filed|
To file AOB. (2nd request)
|Sep 13 2001||Extension of Time application Granted|
To 10/30/2001 to file AOB.
|Nov 2 2001||Application for Extension of Time filed|
To file AOB. (3rd request)
|Nov 2 2001||Counsel's status report received (confidential)|
from atty Kauffman.
|Nov 6 2001||Extension of Time application Granted|
To 12/31/2001 to file AOB.
|Dec 21 2001||Change of Address filed for:|
atty. Scott F. Kauffman.
|Dec 31 2001||Request for extension of time filed|
To file AOB. (4th request)
|Dec 31 2001||Counsel's status report received (confidential)|
from atty Kauffman.
|Jan 2 2002||Compensation awarded counsel|
|Jan 3 2002||Extension of time granted|
To 3/1/2002 to file AOB.
|Mar 4 2002||Request for extension of time filed|
To file AOB. (5th request)
|Mar 6 2002||Extension 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 2002||Counsel's status report received (confidential)|
from atty Kauffman.
|May 3 2002||Request for extension of time filed|
To file AOB. (6th request)
|May 7 2002||Extension 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 2002||Request for extension of time filed|
To file AOB. (7th request)
|Jul 10 2002||Counsel's status report received (confidential)|
|Jul 16 2002||Extension 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 2002||Request for extension of time filed|
to file AOB. (8th request)
|Aug 30 2002||Counsel's status report received (confidential)|
|Sep 4 2002||Extension 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 2002||Counsel's status report received (confidential)|
|Nov 5 2002||Request for extension of time filed|
To file appellant's opening brief. (9th request)
|Nov 12 2002||Extension 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 2002||Counsel's status report received (confidential)|
|Dec 31 2002||Request for extension of time filed|
To file appellant's opening brief. (10th request)
|Jan 6 2003||Extension 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 2003||Motion for access to sealed record filed|
Appellant's "Ex-Parte Request to Review Sealed Records."
|Jan 13 2003||Compensation awarded counsel|
|Jan 17 2003||Opposition filed|
by respondent "To Ex-Parte Request To Review Sealed Records".
|Mar 3 2003||Counsel's status report received (confidential)|
from atty Kauffman.
|Mar 10 2003||Request for extension of time filed|
to file appellant's opening brief. (11th request)
|Mar 12 2003||Extension 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 2003||Request for extension of time filed|
to file appellant's opening brief. (12th request)
|May 2 2003||Counsel's status report received (confidential)|
from atty Kauffman.
|May 6 2003||Compensation awarded counsel|
|May 7 2003||Extension 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 2003||Counsel's status report received (confidential)|
from atty Kauffman.
|Jun 2 2003||Request for extension of time filed|
to file appellant's opening brief. (13th request)
|Jun 10 2003||Extension 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 2003||Exhibits lodged|
|Aug 4 2003||Request for extension of time filed|
to file appellant's opening brief. (14th request)
|Aug 7 2003||Extension 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 2003||Counsel's status report received (confidential)|
from attorney Kauffman
|Oct 9 2003||Request for extension of time filed|
to file appellant's opening brief. (15th request)
|Oct 17 2003||Extension 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 2003||Request for extension of time filed|
to file appellant's opening brief. (16th request)
|Dec 9 2003||Extension 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 2003||Appellant's opening brief filed|
|Dec 26 2003||Counsel's status report received (confidential)|
from atty Kauffman.
|Dec 29 2003||Filed:|
confidential declaration of attorney Scott F. Kauffman.
|Jan 5 2004||Counsel's status report received (confidential)|
(supplemental) from atty Kauffman.
|Jan 14 2004||Compensation awarded counsel|
|Jan 15 2004||Request for extension of time filed|
to file respondent's brief. (1st request)
|Jan 20 2004||Extension of time granted|
to 3/15/2004 to file respondent's brief.
|Mar 15 2004||Request for extension of time filed|
to file respondent's brief. (2nd request)
|Mar 19 2004||Extension 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 2004||Request for extension of time filed|
to file respondent's brief. (3rd request)
|May 19 2004||Extension 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 2004||Request for extension of time filed|
to file respondent's brief. (4th request)
|Jul 21 2004||Extension 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 2004||Counsel's status report received (confidential)|
|Sep 13 2004||Request for extension of time filed|
to file respondent's brief. (5th request)
|Sep 15 2004||Extension 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 2004||Respondent's brief filed|
(31031 words; 116 pp.)
|Nov 4 2004||Request for extension of time filed|
to file appellant's reply brief. (1st request)
|Nov 5 2004||Counsel's status report received (confidential)|
from atty Kauffman.
|Nov 18 2004||Filed:|
Supplemental declaration in support of application for extension of time to file appellant's reply brief.
|Nov 18 2004||Motion to withdraw as counsel filed|
by atty Kaufmann to withdraw as habeas corpus counsel.
|Nov 22 2004||Extension 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 2004||Request 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 2005||Counsel's status report received (confidential)|
|Jan 5 2005||Request for extension of time filed|
to file appellant's reply brief. (2nd request)
|Jan 6 2005||Extension 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 2005||Change of contact information filed for:|
attorney Scott F. Kauffman.
|Mar 7 2005||Request for extension of time filed|
to file appellant's reply brief. (3rd request)
|Mar 7 2005||Counsel's status report received (confidential)|
|Mar 14 2005||Extension 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 2005||Request for extension of time filed|
to file reply brief. (4th request)
|May 6 2005||Counsel's status report received (confidential)|
|May 11 2005||Counsel's status report received (confidential)|
|May 11 2005||Extension 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 2005||Request for extension of time filed|
to file reply brief. (5th request)
|Jul 5 2005||Counsel's status report received (confidential)|
|Jul 8 2005||Extension 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 2005||Order 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 2005||Note:|
volumes V, VI and VII of clerk's transcript returned to superior court pursuant to court's order of 7-13-2005.
|Aug 5 2005||Note:|
record arrived from superior court.
|Aug 5 2005||Received:|
Clerk's transcript volumes V, VI & VII and redacted pages under seal pursuant to court's order of 7/13/2005.
|Sep 8 2005||Counsel's status report received (confidential)|
|Sep 12 2005||Request for extension of time filed|
to file appellant's reply brief. (6th request)
|Sep 19 2005||Filed:|
Supplemental declaration in support of application for extension of time to file reply brief.
|Sep 20 2005||Extension 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 2005||Appellant's reply brief filed|
(12337 words; 54 pp. - excluding attached exhibits)
|Nov 16 2005||Change of contact information filed for:|
attorney Scott F. Kauffman.
|Nov 17 2005||Counsel's status report received (confidential)|
|Nov 21 2005||Counsel's status report received (confidential)|
|Nov 22 2005||Compensation awarded counsel|
|Dec 29 2005||Counsel's status report received (confidential)|
|Dec 30 2005||Compensation awarded counsel|
|Mar 2 2006||Counsel's status report received (confidential)|
|Mar 8 2006||Compensation awarded counsel|
|Apr 5 2006||Counsel's status report received (confidential)|
|Apr 6 2006||Filed:|
Declaration of attorney Scott F. Kauffman (confidential).
|Apr 11 2006||Compensation awarded counsel|
|Jun 6 2006||Related habeas corpus petition filed (concurrent)|
|Jun 28 2006||Compensation awarded counsel|
|Jul 27 2006||Exhibit(s) lodged|
|Sep 27 2006||Oral 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 2006||Case ordered on calendar|
November 7, 2006 at 1:30 in Sacramento.
|Oct 12 2006||Filed letter from:|
Deputy Attorney General Dorian Jung, dated October 10, 2006, re focus issues for oral argument.
|Oct 16 2006||Filed letter from:|
attorney Scott F. Kauffman, dated October 13, 2006, re focus issues for oral argument.
|Oct 18 2006||Filed:|
"Declaration of Service by Mail" of appellant's focus issues letter.
|Nov 7 2006||Cause argued and submitted|
|Dec 14 2006||Compensation awarded counsel|
|Feb 2 2007||Notice of forthcoming opinion posted|
|Feb 5 2007||Opinion filed: Judgment affirmed in full|
Opinion by Moreno, J. -----joined by George, C.J., Kennard, Baxter, Werdegar, Chin, & Corrigan, JJ.
|Feb 20 2007||Rehearing petition filed|
by appellant. (24 pp.) (petition lacks required certificate of word count, counsel to submit ASAP.)
|Feb 26 2007||Time 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 2007||Rehearing denied|
The petition for rehearing is denied. George, C.J., was absent and did not participate.
|Apr 11 2007||Remittitur issued (AA)|
|Apr 12 2007||Exhibit(s) returned|
People's 32 and Defendant's 28.
|Apr 17 2007||Received:|
acknowledgment of receipt of remittitur.
|Apr 17 2007||Received:|
acknowledgment of receipt of exhibits.
|Apr 27 2007||Order filed (150 day statement)|
|Jul 10 2007||Received:|
Appellant's petition for writ of Certiorari. (20 pp. excluding attachments)
|Jul 16 2007||Received:|
letter from U.S.S.C.; dated July 12, 2007; advising cert petn. filed on July 9, 2007; No. 07-5272.
|Nov 5 2007||Received:|
letter from U.S.S.C., dated October 29, 2007, advising that the petition for writ of certiorari was denied that date.
|Jan 31 2008||Compensation awarded counsel|
|Feb 8 2008||Compensation awarded counsel|
|Jun 25 2008||Compensation awarded counsel|
|Jan 8 2009||Compensation awarded counsel|
|Dec 16 2003||Appellant's opening brief filed|
|Oct 14 2004||Respondent's brief filed|
|Nov 3 2005||Appellant's reply brief filed|