Supreme Court of California Justia
Docket No. S022224
People v. Stanley

Filed 8/24/06



Plaintiff and Respondent,



Alameda County


Super. Ct. No. 103289

Defendant and Appellant.

A jury convicted defendant Darren Cornelius Stanley of the first degree

murder of Rudy Rubalcava (Pen. Code, § 187)1 (count I), the attempted murder of

Mitchell Fakoury (§§ 664, 187) (count IV), and the robberies of Joseph Sieder,

Joseph Coggiano, Mitchell Fakoury, Joshua Adelaja, John Cheatam, and James

Dollison (§§ 211, 212.5, subd. (b)) (counts II, III, V, VI, VII, and IX). A robbery-

murder special circumstance was found true (§ 190.2, subd. (a)(17)(i)), and

defendant was found to have personally used a deadly weapon (knife) in the

commission of the murder, attempted murder, and six of the robberies. (§ 12022,

subd. (b).) Defendant admitted allegations that he had suffered six prior felony

convictions for residential burglary for which he had served a separate prison

sentence. (§ 667, subd. (a).)


All further statutory references are to the Penal Code unless otherwise



After a penalty trial the jury returned a verdict of death. The trial court

denied the automatic motion to modify penalty (§ 190.4, subd. (e)) and imposed

the sentence of death. Defendant also received a 27-year aggregate prison

sentence for the noncapital offenses of which he was convicted. This appeal is

automatic. (§ 1239.) We affirm the convictions and judgment of death but order

defendant’s determinate sentence reduced by two years.


A. Guilt Phase

1. Prosecution evidence

Defendant committed the murder, attempted murder, and six robberies of

which he was convicted during a crime spree in Oakland that began on December

24, 1988, and ended with his arrest on January 12, 1989.

Robbery of Joseph Sieder (Count II)

On the afternoon of December 24, 1988, Joseph Sieder was robbed by

defendant in the elevator of an apartment building at 725 Market Street in

Oakland. Defendant entered the elevator while a second, taller Black man stood in

the doorway. Defendant told Sieder, “Give me your mother-fucking money. I

have a gun. Give me your money.” When Sieder refused, defendant struck him in

the face with a heavy blunt object, causing him to lose consciousness. When

Sieder regained consciousness he was lying on the elevator floor, bleeding

profusely, with his wallet, credit cards, and $550 cash missing from his torn pants

pocket. He was transported to Kaiser Hospital where his facial wounds were

stitched closed. Several weeks later, Sieder attended a live lineup and identified

defendant as his assailant with “90 percent” certainty. At trial, Sieder also

tentatively identified a photograph of defendant’s cousin, Clifford Williams, as the

second, taller Black man who stood in the elevator doorway during the attack.


Sieder’s wallet and credit cards were later recovered during the execution of a

search warrant, in connection with the Rubalcava murder, at defendant’s cousin

Cynthia Williams’s Oakland apartment where defendant had stayed.

Robbery of Joseph Coggiano (Count III)

On the evening of December 27, 1988, Joseph Coggiano, a businessman,

was robbed by defendant in the rest room of a service station on Castro Street in

Oakland where he had stopped for gas. Two Black men entered the rest room.

Coggiano testified defendant resembled the shorter of the two men, and he

identified a photograph of defendant’s cousin, Clifford Williams, as resembling

the taller man. Defendant punched Coggiano in the face, causing him to fall to the

floor, and demanded his money. Coggiano removed everything from his pockets;

approximately $35-$70 was taken by defendant as Williams stood at the door.

The gas station attendant came to Coggiano’s assistance, pulling one of the men

off of him. When Coggiano found himself alone in the rest room he locked

himself in until the police arrived. Coggiano positively identified defendant as his

assailant at a photographic lineup and again at a live lineup. Clifford Williams

testified at trial that he and “Roger Hayes,” an alias defendant was using at that

time, robbed Coggiano on the evening in question.

Robbery and attempted murder of Mitchell Fakoury (Counts IV, V)

On the afternoon of January 7, 1989, defendant robbed and repeatedly

stabbed elderly Mitchell Fakoury, who survived the attack. Mr. Fakoury was

sitting in the front passenger seat of his vehicle reading a newspaper while parked

in front of his clothing store on 7th Street in Oakland. A man whom he identified

in court as defendant approached and asked him for the time. Within seconds

defendant started waving a knife around Fakoury’s neck, stating, “I’m going to kill

you.” Fakoury replied, “No need for that. What do you want to kill me for?”


Defendant slashed Fakoury’s neck, pushed him down flat on his back on the front

seat and started tearing at his pants in an effort to get at his wallet in his rear pants

pocket. At some point during the attack defendant stabbed Fakoury in the neck

and stomach. After defendant fled with the wallet Fakoury got out of his vehicle

and, seeing his clothes soaked in blood, realized the extent of his injuries.

Fakoury identified People’s exhibit No. 2—the knife later recovered in connection

with the Rubalcava stabbing murder—as “look[ing] pretty well like the knife”

defendant used to stab him. Although he did not know “types of knives” very

well, Fakoury knew defendant’s knife was a “big folding knife with a little sort of

knob on it.”

Two young girls saw Fakoury’s assailant drop a wallet on the ground as he

ran from the scene. One summoned her mother, who looked inside the wallet and

recognized Fakoury’s picture as that of a local merchant. They ran around the

corner, found Fakoury lying bleeding on the pavement, attempted to stop the flow

of blood from his neck with towels, and summoned police. Fakoury was rushed to

Highland Hospital. Dr. Badger, the surgeon who attended to him, testified his

neck wounds were three inches to four inches deep, penetrating the muscles below

his jaw, cutting through many branches of the carotid artery, and severing his

jugular vein in half. Fakoury also suffered stab wounds to his stomach and right

flank as well as permanent facial injuries which were evident at trial.

Murder of Rudy Rubalcava (Count I)

On January 8, 1989, at approximately 3:45 a.m, defendant robbed and

fatally stabbed Rudy Rubalcava while he was pumping gas at the Shell station on

7th and Market Streets in Oakland. The murder occurred approximately 12 hours

after the robbery and attempted murder of Fakoury, and only several blocks

distance from the scene of those earlier crimes. Four witnesses observed


Rubalcava’s murder. Defendant’s brother, Isaac Stanley, and Golden Garner and

Norma Moss, both of whom knew defendant from the neighborhood, all witnessed

the incident and positively identified defendant as Rubalcava’s assailant. Gas

station attendant Tosha Dunson, the principal witness for the defense, testified

defendant was not the man she had seen rob Rubalcava.

Isaac Stanley was sitting on a bus stop bench drinking beer across the street

from the Shell station and observed his brother walk over to the station and

become engaged in “a tussle” with Rubalcava.2 Issac observed defendant

punching and swinging his arm at Rubalcava while he was down on the ground,

striking the victim “at least three or four times” in the head and chest. Isaac heard

Rubalcava yelling, “Help this guy is trying to rob me.” Afterwards, defendant ran

into the apartment building at 1050 Market Street where Isaac had been staying, in

apartment No. 307, and where defendant had spent several nights. Isaac followed

defendant into the building and the two spent about 20 minutes in the apartment.

Defendant’s hand was bleeding and wrapped in a bandanna; he told Isaac he had

cut himself. Defendant was angry at Isaac for not helping him. Defendant

changed his clothes before leaving the apartment. On cross-examination, Isaac

admitted giving a somewhat different account of the incident to police when he

was taken in for questioning about the murder, and several months thereafter,

when he spoke with a defense investigator. Isaac claimed he had been drinking

and was under the influence on both occasions.

Golden Garner worked as a maintenance man for the buildings at 1050 7th

Street, where Isaac Stanley had an apartment, and 725 Market Street, where he

(Garner) shared an eighth floor apartment with Norma Moss overlooking the Shell


Initially, the police suspected Isaac may have been involved in the assault

on Rubalcava. After interviewing him, they concluded he was not.


station.3 Garner knew defendant and Isaac Stanley from the neighborhood. He

had seen both brothers in the lobby of his building on Market Street at various

times, and had experienced “a little difficulty” with them and their cousin, Clifford

Williams, in the past. Garner knew defendant as “D,” and testified defendant has

a distinct, deep “froggie” voice. He described Isaac Stanley as having a “turned


At 3:45 a.m., Moss awoke Garner after seeing two men struggling at the

Shell station through their window. Garner went to the window and witnessed

defendant struggling with another man, whom he thought may have been of

Chinese descent. The man was yelling, “Help, I’m being robbed,” and defendant

appeared to be dragging him on the ground as he (defendant) tried to get away.

Garner also saw Isaac Stanley sitting on a bench at the bus stop across the street.

After defendant fled on foot, several persons appeared at the gas station and tried

to assist Rubalcava.. Garner testified that Moss telephoned the police

anonymously to report the attack and summon an ambulance. Certain he knew the

identity of Rubalcava’s assailant, Garner also telephoned the police later that day.

Moss and Garner gave the police the addresses of the 725 Market Street and 1050

7th Street buildings as places where Rubalcava’s assailant might be found. A few

days later, Garner spoke with the Oakland police and identified a photograph of

defendant as Rubalcava’s assailant.

Moss testified she witnessed the attack on Rubalcava at the Shell station

from her eighth floor apartment window. She initially heard loud talking and saw

two men, whom she could not identify, arguing and shoving one another. One of

the men started yelling for help. She saw the larger man fall to the ground; when

he tried to get up she could see his pants pulled down around his thighs. Then the


Defendant had assaulted and robbed Joseph Sieder in the elevator of the

building at 725 Market Street two weeks earlier. (Ante, at p. 2.)


smaller man, whom Moss by then could make out as defendant, fled toward her

apartment building. Moss called the police to report the crime. Moss also saw a

man with a “wandering eye” standing at the bus stop across the street from the

station throughout the altercation. He did not intervene when the victim cried out

for help and did not leave until after the attack. Moss identified a photograph of

Isaac Stanley as looking like this man. Several days later, upon defendant’s arrest,

Moss gave a statement to Oakland police and identified defendant’s photograph as

Rubalcava’s assailant. Moss also identified a photograph of defendant’s cousin,

Clifford Williams, as someone she had seen together with defendant and Isaac

Stanley on occasions in the past.

Officer John Mendez was dispatched to the Shell station at approximately

3:45 a.m. on January 9, 1989. An ambulance was already at the scene and

paramedics were attending to Rubalcava. Officer Mendez observed a bloodied

folding buck knife with its tip broken off under Rubalcava’s vehicle. Officer

Thomas Viglienzone photographed and searched the crime scene for evidence and

took the bloodied buck knife (People’s exhibit No. 2) into evidence.

Rubalcava was transported to the emergency room of Highland Hospital,

arriving shortly after Dr. Badger completed surgery on Mr. Fakoury. Dr. Badger

testified that, like Fakoury, Rubalcava suffered a deep stab wound to the right side

of his neck, penetrating the muscles underneath his jaw bone and severing many

branches of the carotid artery. Rubalcava also suffered a stab wound to the lower

chest-abdominal area, which penetrated his diaphragm and liver, and three stab

wounds to the right side his head; two just above his right ear. Dr. Badger

concluded that, given the timing and similarity of the nature and locations of the

wounds to Fakoury and Rubalcava, the same person had attacked and stabbed both

victims. Rubalcava lost over seven quarts of blood, underwent two surgeries, and

died shortly thereafter from cardio-respiratory arrest due to his multiple stab


wounds. Both Dr. Badger and Dr. Rogers, the pathologist who performed the

autopsy on Rubalcava, believed the knife received into evidence (People’s exhibit

No. 2) could have caused Rubalcava’s fatal wounds. During the autopsy, a small

piece of metal was recovered from the inner surface of Rubalcava’s skull

(People’s exhibit No. 6) matching the broken tip of the blade of the knife received

into evidence.

Fred Stewart lived with Paula Ward and several others in apartment No.

903 at 1050 7th Street, the building in which Isaac Stanley had an apartment.

When defendant and Isaac Stanley returned to the building after the incident,

Stewart and Ward helped clean and bandage defendant’s hand which was bleeding

“real bad.” Stewart heard defendant tell Isaac he was upset with him for not

helping him while he was “fighting this crazy Mexican.” Stewart also heard

defendant tell Isaac, “I got the money, I went in the pocket, that [sic] I got the

money.” Two weeks earlier, Stewart had seen defendant in possession of a

folding buck knife similar to the one received into evidence, except at that time

“its tip was not broken.”

Three search warrants were executed in connection with the investigation

of the Rubalcava murder. Credit cards and identification belonging to robbery

victim Joseph Sieder were recovered from Cynthia Williams’s apartment (No.

505) at 1050 7th Street in Oakland. Bloodstained clothing and tennis shoes were

among the items of evidence recovered from Isaac Stanley’s apartment (no. 307)

in the same building. The testimony of a forensic serologist established that the

blood on the tennis shoes was consistent with Rubalcava’s blood and inconsistent

with the blood of defendant and Mr. Fakoury.


Robbery of Joshua Adelaja (Count VI)

On January 8, 1989, at 3:35 p.m., less than 13 hours after robbing and

fatally stabbing Rubalcava, defendant robbed taxicab driver Joshua Adelaja at

knifepoint. Adelaja was called to 1050 7th Street, apartment No. 903, in Oakland.

He rang the bell and was told by a woman that she would be right down. As

Adelaja waited in his cab in front of the building, defendant got into the rear seat,

told Adelaja to wait for his “lady friend,” then grabbed Adelaja by the neck, held a

knife to his throat, and stated, “Don’t shout, don’t make any noise, don’t call the

police, just give me all the money.” Adelaja hesitated. When defendant told him

he was going to slash his throat, Adelaja gave defendant the money from his shirt

pocket. Defendant told Adelaja it was not enough money and began “shaking”

down the victim’s pants. Adelaja complied and gave defendant approximately

$100-$120 from his pants pocket. Defendant grabbed the money and ran. Adelaja

positively identified defendant as his assailant in a photographic lineup, and again

at a physical lineup, and also positively identified a knife later recovered from

Isaac Stanley’s apartment (People’s exhibit No. 13) as the knife defendant held to

his throat during the robbery.

Robbery of John Cheatham (Count VII)

On January 8, 1989, at 10:15 p.m., less than seven hours after robbing

Adelaja, defendant robbed a second taxicab driver, John Cheatham, at knifepoint.

Cheatham was sitting in his cab at 12th and Campbell Streets in Oakland when

defendant approached and asked him for a cigarette, then a light, and then pointed

a knife at his throat, stating, “Give me the money, mother fucker.” Cheatham

complied and defendant fled with the money. Cheatham identified defendant as

his assailant at a live lineup.


Robbery of James Dollison (Count IX)

On January 12, 1989, at 4:30 p.m., defendant robbed a third taxicab driver,

James Dollison, at knifepoint. Dollison was dispatched to an address on 86th

Avenue where he found defendant waiting at the curb. Defendant got into the cab,

appeared to momentarily lie down in the back seat, then came up holding a

butcher knife which he put to Dollison’s throat or chin area. Defendant demanded

money, Dollison resisted, and the two struggled for control of the knife.

Defendant managed to remove $20 in currency from Dollison’s rear pants pocket

before Dollison gained control of the knife and “bailed out of the cab,” cutting

defendant’s hand or fingers in the process. Defendant jumped into the driver’s

seat and drove off in the cab. Several days later, Dollison identified defendant as

his assailant at a live lineup.

Later that same evening, Oakland police located defendant sitting in

Dollison’s cab parked on 80th Avenue in Oakland. When one officer approached

on foot, defendant drove the cab toward him, prompting the officer to jump back

into his unmarked patrol car to avoid being hit. A chase ensued involving at least

five police officers, which ended when defendant crashed the cab into a private

residence, fled on foot, and finally fell to the ground after warning shots were

fired. Defendant’s left hand was observed to be wounded and wrapped in a blood-

soaked rag when he was apprehended and taken into custody.4

2. Defense evidence

The primary defense witness at the guilt phase was Tosha Dunson, who

was working at the Shell station when Rubalcava was robbed and fatally stabbed.


Defendant was also charged with the January 10, 1989 robbery of Ornella

Fuller, who was robbed at knifepoint of jewelry valued at $6,000 as she sat in her
car in front of her home on 14th Street in Oakland. The jury was unable to reach a
verdict on that charge (count VIII), which was dismissed on motion of the district


Dunson was asleep in the cashier’s booth when a Mexican man knocked on the

window, awakening her, and paid for gas. After he paid her, Dunson put her head

down and closed her eyes. She was reawakened by yelling, looked up, and saw “a

Mexican man and a Black man fighting.” Dunson saw the Black man punch

Rubalcava in the face, rip a wallet out of his rear pants pocket, and run across the

street toward an apartment building. She saw no weapons in either mans’ hands.

She called 911, telling the police it was a robbery. At one point Rubalcava came

up to the booth stating he had been robbed and asking her to summon help.

Dunson could see that Rubalcava was bleeding heavily, had “a hole in the back of

his neck,” and appeared to be in shock, with his pants torn halfway down one leg.

Dunson testified at defendant’s preliminary hearing, after which she told the

district attorney’s investigator that defendant was not the Black man she had seen

fighting with Rubalcava that night. She believed the man she saw was darker than

defendant. On rebuttal, the prosecution presented evidence that the windows of

the cashier’s booth in which Dunson worked were tinted medium brown, making

things outside look several shades darker.

B. Penalty Phase

1. Prosecution evidence

The prosecution introduced evidence of defendant’s juvenile criminal

history, which included an escape attempt, as well as evidence of assaults upon

correctional officers while he was incarcerated in Soledad Prison, and assaults

upon sheriff’s deputies while he was housed in county jail awaiting trial for these


In 1983, defendant was arrested for a series of residential burglaries in

Berkeley. As he was being transported to juvenile hall, defendant managed to

jump out of a Berkeley police vehicle while still in leg restraints, after twice


unsuccessfully attempting to wrestle control of the steering wheel from Officer

Emberton, who was driving, in an effort to run the vehicle off the freeway.

Defendant rolled across the slow lane of the freeway and jumped 35 feet to the

street below. When recaptured two hours later, defendant told Officer Emberton,

“[Y]ou’ll never take me alive, because I’ll kill you first.” Thereafter, while being

treated at the hospital for injuries suffered during the escape, defendant told

Officer Emberton that “it didn’t matter where he was placed because there was no

jail or institution that could hold him and that he would be out in a week’s time.”

Defendant added that he would kill any police officers who tried to take him into

custody or prevent his escape.

In January 1985, defendant pled guilty to nine counts of residential burglary

committed in September and October of 1984. Although a juvenile at the time,

defendant was prosecuted as an adult after being found unfit for treatment in

juvenile court. He received a six-year state prison sentence. While incarcerated at

Soledad state prison, defendant got into fights with other prisoners on two

occasions. On one such occasion, a warning shot had to be fired to break up the


While in custody at the north county jail in Oakland awaiting trial for the

instant crimes, defendant struck a sheriff’s deputy in the mouth after refusing to

return to his cell; fought with two deputies who were attempting to retrieve a

dinner tray from his cell, sending one to the hospital and resulting in a six-month

disability leave; fought with and punched two deputies in the head after refusing to

be moved from his cell to a multipurpose room; and attacked and violently kicked

a deputy who had removed a list entitled “Police Pig of the Year” from his cell

window. On one occasion while in custody at the Santa Rita Jail, defendant had to

be restrained with mace after punching and fighting with deputies after refusing to

return to his cell.


2. Defense evidence

Several of defendant’s family members testified in his behalf at the penalty

phase. Defendant’s father, Otis Stanley, Sr., testified he was divorced from

defendant’s mother, Dorothy Hayes, when defendant, the youngest of three

brothers, was still a baby. The mother abused alcohol and neglected the children.

At the age of four or five, defendant and his brothers came to live with their father

and his new partner, Pearl Stanley, and her children from a prior marriage. The

children of the blended family were difficult to supervise, and some got into

trouble. Defendant’s mother was diagnosed with cancer and died when defendant

was 16. Defendant’s maternal grandfather also died while defendant was in


Defendant’s uncle, Joseph Hayes, a water company maintenance worker

and Reverend of the New Bethel Baptist Church in Oakland, testified defendant

was required to attend church with all of his family members until his

grandfather’s death in 1981, at which time the family drifted apart. Defendant was

more attached to his mother than were his brothers. While she was alive,

defendant “did a little breaking and entering and stealing here and there” to help

support her. Reverend Hayes told his sister (defendant’s mother) not to accept

money from defendant in order to discourage him from committing more crimes.

Pearl Stanley testified defendant and his brothers lived with her and their

father from the time defendant was four until he moved out at age 16. Defendant

went to church regularly and once saved her life when her grandchild started a fire

in their house.

Defendant’s older brother, Isaac Stanley, testified that while their mother

was alive, defendant would steal things and sell them to buy food for her.

Defendant began using crack cocaine in December 1988, using it daily and

consuming eight or nine “rocks” at a time. Defendant became violent when under


the influence of crack cocaine, and he was under the influence of the drug on the

night of the Rubalcava robbery murder.

Cynthia Williams, defendant’s cousin, testified defendant was a kind

person who looked after his older brother Isaac. Trenda Stanley, whom defendant

met in November 1988 and again in September 1990 while she was in jail for

selling rock cocaine, testified she and defendant were married while he was

awaiting trial for these crimes. In her opinion, defendant was not using drugs in

late 1988, nor did she believe he committed the crimes with which he was

charged. On cross-examination, she denied ever having supplied drugs to


The defense also presented the testimony of three expert witnesses

regarding the effects of crack cocaine on behavior. Everett Gremminger, who

worked for the State Medical Board and had worked in the Oakland Police

Department narcotics detail for 20 years, testified that crack or rock cocaine is a

highly potent drug which, when burned and inhaled, stimulates the brain and

greatly increases the heart rate and blood pressure. Crack cocaine usage causes

euphoria and impairs judgment but does not render the user dysfunctional. Most

of the people Gremminger arrested who were under the influence of the drug were

aware of their crimes, recollected committing them, and generally committed

those crimes for the purpose of obtaining more crack cocaine.

Dr. William Pierce, a qualified expert in forensic clinical psychology, was

enlisted by the defense in 1990 to evaluate defendant and develop his

psychological and personality profile. He met with defendant for about 12 hours

and administered a battery of psychological tests. He also spoke with defendant’s

family members and familiarized himself with many of the records and

investigative reports in the case. Dr. Pierce believed that defendant’s mother’s

neglect of him, and her “inconsistent parenting” during his developmentally


formative years, created “dependency needs” in defendant. At age 13, he

exhibited more “oppositional” behavior when he quit junior high school and

started committing burglaries. Dr. Pierce believed defendant’s personality was

characterized by an “over-idealized self-image which covers his true feelings of

fear and inadequacy.” This personality profile, when combined with cocaine use,

would expectedly lead to increased aggressive behavior. Defendant told Dr.

Pierce that in the latter part of 1988 his crack addiction controlled him and he “just

started sticking people up.” According to Dr. Pierce, defendant was unable to

appreciate the criminality of his conduct or conform his behavior to the law due to

his cocaine addiction. On cross-examination, Dr. Pierce confirmed that defendant

had no medical history of head injuries or loss of consciousness, nor did defendant

exhibit any organic neurological dysfunction or severe emotional or psychological


Dr. Samuel Benson, a qualified expert in the fields of pharmacology and

psychiatry, testified crack cocaine is highly addictive, as established by laboratory

experiments conducted on monkeys which were given unlimited access to the drug

and consumed it in fatal quantities. Based on his interviews with defendant, Dr.

Benson believed defendant was severely addicted to crack cocaine at the times he

committed these crimes, and that defendant’s crime spree might be explained by

his drug addiction.


A. Pretrial/Jury Selection Issues

1. Faretta motion for self-representation

Defendant first contends the judgment must be reversed because he was

denied his Sixth Amendment right to represent himself. (Faretta v. California

(1975) 422 U.S. 806 (Faretta).) We cannot agree. Defendant’s request for self-


representation was properly denied because, as the record reflects, he did not fully

appreciate that he would be forgoing his right to the assistance of appointed

counsel if permitted to represent himself. As such, the lower court reasonably

concluded his purported waiver of his right to self-representation was not fully

knowing and intelligent. (Faretta, supra, 422 U.S. at p. 835.) Moreover, in light

of defendant’s subsequent acceptance of several appointed counsel to represent

him, both at the preliminary hearing and throughout the ensuing trial, without

renewing his request for self-representation, we further conclude he must be found

to have ultimately waived or abandonned his asserted right of self-representation.

(People v. Dunkle (2005) 36 Cal.4th 861, 909 (Dunkle).)

Defendant’s conditional request for self-representation was made in the

course of a renewed motion for substitution of counsel (see People v. Marsden

(1970) 2 Cal.3d 118 (Marsden)) in what was then municipal court, one year prior

to his preliminary hearing, and nearly two years prior to the start of trial. In

response to the court’s initial inquiries,5 defendant confirmed that he was making a

motion for self-representation and that he wanted to proceed without a lawyer.

When the court explained that self-representation in a death penalty case was

“almost always unwise,” defendant responded, “Hey, I feel I can defendant myself

better than this man [Attorney Lincoln Mintz] can defend me.” When the court

explained to defendant that he would be up against an experienced prosecutor, and

asked if he understood he would “have to play by all the rules” whether he knew

the rules or not, defendant responded, “I know and I understand all the rules.” But

the record reflects defendant did not know and understand all the rules. In


The pretrial Marsden and Faretta motions were made before the Honorable

Carol A. Corrigan, then Judge of the Municipal Court for the Oakland-Piedmont-
Emeryville Judicial District. Defendant’s early request for substitution of counsel
stemmed from his complaint that either the district attorney or his appointed
counsel was “withholding evidence” from him during discovery.


particular, he did not fully appreciate that if his request for self-representation was

granted, the court would be under no further obligation to appoint standby counsel

to assist him.

Defendant stated to the court, “Well, I know what I’m saying at this time, I

am feeling that I would like to represent myself, and I would ask the Court, you

know what I’m saying, to allow me the fact that when I do—if and when I do get

in trouble, to aid me and standby aide. [sic.]” The court explained to defendant,

“It doesn’t work that way . . . It’s like doing surgery on yourself. If you cut the

wrong place, nobody’s going to stop the bleeding for you. Does that make sense

to you?” Defendant replied, “Yeah. You’re telling me I can represent myself, but

at the same time I can’t have standby aide? [sic.]” The court responded, “That’s

right,” and explained further, “I’m not going to appoint extra counsel for you. If

you want to be represented by a lawyer, you may be.” Defendant responded, “6th

Amendment entitles I am entitled to standby aide. [sic.]” The court once again

attempted to explain to defendant that such was not the law, and that if he wanted

to represent himself, he would not be entitled as a matter of right to the assistance

of appointed counsel. Defendant responded, “I would like to represent myself on

this matter, and at due time, I will leave it open. If need be, I will seek necessary

counsel.” In response to this comment, the court yet again attempted to impress

upon defendant that he had no right to the appointment of “standby aide” or

“necessary counsel” if he chose to represent himself: “No, Mr. Stanley. That’s

not one of your choices. You either make the decision to represent yourself and

you go down that road, or you get adequate and well-trained counsel. But you

don’t get to decide to represent yourself and decide you’re in real trouble and ask

for a lawyer.”

The court then attempted to determine the extent of defendant’s knowledge

and awareness of the workings of a criminal courtroom. When asked, “What kind


of experience do you have in court, Mr. Stanley?”, defendant replied, “I’ve been

back and through them numerous times. I know how they operate. I know how

the courts operate. I still have yet to learn some of the tactical years and how the

process works. But doing my time in and out of here, I have seen numerous of

times I’ve got somewhat of an experience, I feel, that I can defend myelf.” Upon

further questioning, defendant admitted he had never sat through a trial by jury or

seen a jury selected, although he insisted, “But I know how it works,” indicating,

“I’ve been doing a little studying, some law books.” When asked what law books

he had consulted, defendant replied, “Trial jury process, you know, in which the

defendant goes in there and picks who he want, and with the assistance of counsel,

he will make the right chose [sic] with the jury whoever they don’t want.” (Italics

added.) The court replied, “You keep talking about the assistance of counsel.

You’re talking about putting yourself in a spot where you don’t have assistance of


When the court yet again sought to impress upon defendant that he had no

right to the benefit of appointed counsel or any special assistance from the court if

he chose to represent himself, defendant still commented, “Yeah, I understand

that. But at the same time, like I say, when in due time, if I need aid by counsel, I

feel I need aid by counsel, I would ask the Court—to reconcile an appointment in

counsel or I’d have to buy a counsel, either one.” (Italics added.)

The court denied defendant’s motion for self-representation with the

following findings: “Mr. Stanley’s motion to represent himself under [Faretta] is

denied for the following reasons: [¶] First and foremost the Court finds that Mr.

Stanley is not making a knowing and intelligent waiver of his right to counsel. It

seems to the Court, after extended discussion, that Mr. Stanley does not

completely understand either the circumstances into which he is putting himself,

nor does he understand what would be expected of him if he were to attempt to


represent himself in that by his own admission he has never seen a jury trial, never

seen a jury picked. The Court feels based on Mr. Stanley’s demeanor and his

manner in which he’s answering the questions that his reported understanding of

the law is somewhat less inclusive than that which he represents [it] to be. I

further find that he does not understand completely the reality that if he finds

himself in trouble, once he’s undertaken his own representation, that it is a very

real possibility that the Court will not appoint counsel for him. We’ve discussed

that several times, and he keeps coming back to the notion that if he finds himself

in difficulty, he will petition the Court for appointment of counsel. In the Court’s

judgment, the authority of [Faretta] I do not feel that Mr. Stanley is making a

knowing and intelligent waiver of his rights to counsel, and the Court’s decision in

this regard goes well beyond the court’s own feeling that Mr. Stanley, in electing

to represent himself, will be making a mistake. The Court’s ruling is based on

motion that [sic] based on Mr. Stanley’s understanding of the situation in which he

finds himself, that his waiver is not knowing and intelligent.”

At the conclusion of the hearing, defendant’s renewed Marsden motion for

substitution of appointed counsel was also denied. Five months later, a third

request for substitution of counsel was granted, and a new attorney (Walter

Cannady) was appointed to represent defendant at the preliminary hearing and

throughout trial. Defendant accepted the appointment of Attorney Cannady, as

well as second trial counsel (Attorney Richard Hove), and never again renewed his

request for self-representation under Faretta.

“A criminal defendant has a right to represent himself at trial under the

Sixth Amendment to the United States Constitution. (Faretta v. California (1975)
422 U.S. 806 (Faretta); People v. Marshall (1997) 15 Cal.4th 1, 20 (Marshall).)

A trial court must grant a defendant’s request for self-representation if three

conditions are met. First, the defendant must be mentally competent, and must


make his request knowingly and intelligently, having been apprised of the dangers

of self-representation. (Faretta, supra, at p. 835; People v. Gallego (1990) 52

Cal.3d 115, 161; People v. Bloom (1989) 48 Cal.3d 1194, 1224-1225.) Second, he

must make his request unequivocally. (Faretta, supra, at p. 835; People v. Clark

(1992) 3 Cal.4th 41, 98 (Clark).) Third, he must make his request within a

reasonable time before trial. (Marshall, supra, at pp. 20-21; Clark, supra, at p. 98;

People v. Windham (1977) 19 Cal.3d 121, 128.)” (People v. Welch (1999) 20

Cal.4th 710, 729.)

“When confronted with a request” for self-representation, “a trial court

must make the defendant ‘aware of the dangers and disadvantages of self-

representation, so that the record will establish that “he knows what he is doing

and his choice is made with eyes open.” ’ (Faretta, supra, 422 U.S. at p. 835.)

Unlike the right to representation by counsel, ‘ “[T]he right of self-representation

is waived unless defendants articulately and unmistakably demand to proceed pro

se.” ’ (People v. Marshall (1997) 15 Cal.4th 1, 21 (Marshall); id. at p. 23 [‘[T]he

court should draw every reasonable inference against waiver of the right to

counsel’]; see Brewer v. Williams (1977) 430 U.S. 387, 391, 404 [‘courts indulge

in every reasonable presumption against waiver’ of the postarraignment right to

counsel].) In determining on appeal whether the defendant invoked the right to

self-representation, we examine the entire record de novo. (See Marshall, at

pp. 24-25.)” (People v. Dent (2003) 30 Cal.4th 213, 217-218.)

Here, it is undisputed that defendant’s request for self-representation was

timely, having been made one year before his preliminary hearing and nearly two

years before the start of trial. Nor has respondent argued that defendant was

mentally incompetent to waive counsel. But we agree with the conclusion of

respondent and the lower court that heard the motion—defendant’s request to

represent himself was not knowingly and intelligently made in that he did not fully


understand or appreciate that the court would be under no further obligation to

appoint counsel for him if his Faretta motion for self-representation was granted.

(Faretta, supra, 422 U.S. at p. 835.)

We have observed that “a [Faretta] motion made out of a temporary whim,

or out of annoyance or frustration, is not unequivocal—even if the defendant has

said he or she seeks self-representation.” (Marshall, supra, 15 Cal.4th at p. 21.)

“Equivocation, which sometimes refers only to speech, is broader in the context of

the Sixth Amendment, and takes into account conduct as well as other expressions

of intent.” (Williams v. Bartlett (2d Cir. 1994) 44 F.3d 95, 100.) Here, defendant

orally interposed his request for self-representation during a renewed Marsden

motion made in municipal court one year before his preliminary hearing and

nearly two years before the start of trial, out of apparent annoyance or frustration

with his first appointed counsel, Attorney Mintz, whom he claimed was

“withholding evidence” from him during the early stages of discovery. Before

granting a Faretta motion, a trial court must determine the defendant is competent

to waive his right to counsel, and must obtain his or her knowing and voluntary

waiver of that right. (Godinez v. Moran (1993) 509 U.S. 389, 396-401; Faretta,

supra, 422 U.S. at p. 835; Marshall, supra, 15 Cal.4th at p. 20.) Courts must

“indulge every reasonable inference against waiver of the right to counsel.”

(Marshall, supra, at p. 20.) We conclude defendant’s various comments on the

record reflect his belief that he had a continuing constitutional right to the

appointment and assistance of counsel even if his request for self-representation

were to be granted. On this record, the lower court reasonably concluded

defendant was not making a knowing and intelligent waiver of his right to counsel

given his failure to fully comprehend that such a waiver would lead to a full

relinquishment of that constitutional right.


Moreover, once defendant’s request for self-representation was denied, he

never renewed it. He made a third motion for substitution of counsel in municipal

court, prior to commencement of his preliminary hearing, which was granted.

Defendant accepted the substitution of appointed counsel (Cannady), who went on

to represent him at the preliminary hearing and throughout trial in superior court.

Defendant also subsequently accepted the appointment of second counsel, Richard

Hove, who assisted Attorney Cannady in representing defendant at trial. In light

of defendant’s subsequent acceptance of several appointed counsel to represent

him without ever renewing his request for self-representation, we conclude he

must further be found to have ultimately abandonned his desire to invoke his

Faretta rights in these capital murder proceedings. (Cf. Dunkle, supra, 36 Cal.4th

at p. 909, and cases cited [Faretta rights waived or abandonned by subsequent

conduct after erroneous denial of Faretta motion].)

2. Severance motion

Defendant next argues the trial court erred in denying his pretrial motion to

sever the capital murder charge from the remaining charges.

“ ‘The law prefers consolidation of charges. (People v. Ochoa (1998) 19

Cal.4th 353, 409.) Where, as here, the offenses charged are of the same class,

joinder is proper under section 954. (People v. Kraft (2000) 23 Cal.4th 978, 1030

(Kraft); People v. Bradford (1997) 15 Cal.4th 1229, 1315 (Bradford).)’ ” (People

v. Manriquez (2005) 37 Cal.4th 547, 574 (Manriquez).) Defendant was charged

with the robbery of each victim named in the information. He threatened and

resorted to violence in each instance, and used a knife in the commission of all but

two of the robberies, striking those two victims (Sieder and Coggiano) with a blunt

object or his fist. In one instance defendant’s knife attack nearly took the life of

the victim (Fakoury); in another it proved fatal (Rubalcava). Clearly, the charged

murder, attempted murder, and robberies were all offenses of the same class and


were properly joined under section 954 in the first instance.

Accordingly, defendant can only predicate error in the denial of severance

on a clear showing of potential prejudice. (Manriquez, supra, 37 Cal.4th at p. 574;

Kraft, supra, 23 Cal.4th at p. 1030; Bradford, supra, 15 Cal.4th at p. 1315.) We

review the trial court’s denial of defendant’s severance motion for an abuse of

discretion. (Manriquez, at p. 574, and cases cited.)

Denial of severance may constitute an abuse of discretion where evidence

of the crimes to be jointly tried would not be cross-admissible in separate trials.

(Bradford, supra, 15 Cal.4th at p. 1315; People v. Sandoval (1992) 4 Cal.4th 155,

172-173.) Here, the evidence plainly would have been cross-admissible in

separate trials to prove a fact in issue, other than mere disposition to commit

crimes, such as motive, identity, opportunity, intent, plan or knowledge. (Evid.

Code, § 1101, subd. (b); People v. Gordon (1990) 50 Cal.3d 1223, 1240.) There

were more than sufficient common marks between the Rubalcava robbery murder

and the Fakoury robbery attempted murder to suggest the same individual

committed both crimes (identity) for a similar purpose (motive, intent, plan). The

attacks came within 13 hours of each other and were committed within five blocks

of one another. The same folding buck knife received into evidence was alleged

to have been used in each attack. Both victims’ wounds were virtually identical,

their throats having been slashed almost to the same depth and at the same angle,

each having also been stabbed in the lower chest or abdomen. The victims’

wounds were so distinctive, and the injuries inflicted so close in time, that the

surgeon who attended to them in the emergency room of Highland Hospital

concluded both men must have been attacked by the same assailant. Both victims

were attacked in or near their vehicles, and each victim’s rear pants pocket was

ripped from his pants in the attacker’s zeal to get at his money. Furthermore,

evidence of the remaining robberies, all committed within the same three-week


time period, some only hours apart from one another, and in the same general area

of downtown Oakland where the Fakoury and Rubalcava attacks occurred, would

have been admissible in separate trials as probative of motive, modus operandi,

and intent. (Gordon, at p. 1240.) Given our finding of cross-admissibility, our

inquiry could end here. (See Bradford, supra, 15 Cal.4th at p. 1317.)

Nor was this a case in which certain of the joined charges were unusually

likely to inflame the jury against the defendant; or one in which “weaker” charges

were joined with “strong charges,” causing a spillover effect that might have

unfairly altered the outcome of the trial. (See Marshall, supra, 15 Cal.4th at

pp. 27-28; Frank v. Superior Court (1989) 48 Cal.3d 632, 640.) Contrary to

defendant’s argument, the evidence that pointed to him as Rubalcava’s murderer

was already strong, notwithstanding the testimony of defense witness Tosha

Dunson, who believed he was not the man she saw rob Rubalcava. Those

percipient witnesses who personally knew defendant, including Golden Garner

and Norma Moss, who knew him from the neighborhood and their building in

which he was staying, and defendant’s own brother, Isaac Stanley, all identified

him as Rubalcava’s assailant. Other witnesses (Stewart and Ward) heard

defendant admit complicity in Rubalcava’s robbery and murder in his conversation

with his brother Isaac immediately after the attack. Nor were any of the

noncapital offenses particularly inflammatory in comparison with the capital

murder charge. (Frank v. Superior Court, supra, 48 Cal.3d at p. 640.) Although

the facts of the Fakoury robbery and attempted murder were brutal and violent,

they were no more so than the facts of the capital murder charge itself. Finally,

there is no merit to defendant’s further claim that the court had a sua sponte duty

to give the jury a limiting instruction “as to what it could or could not do regarding

cross-admissibility between the evidence relating to the capital and noncapital

counts.” No such instruction was required. (See People v. Hawkins (1995) 10


Cal.4th 920, 942 (Hawkins).)

We conclude denial of the severance motion was not an abuse of discretion.

3. Batson-Wheeler error

Twice during jury selection defendant claimed the prosecution was

exercising its peremptory challenges to improperly excuse prospective Black

jurors on the basis of race, in violation of the federal and state Constitutions. (See

Batson v. Kentucky (1986) 476 U.S. 79, 84-89 (Batson); People v. Wheeler (1978)

22 Cal.3d 258, 276-277 (Wheeler).) Hearings were conducted and the motions

denied. The claims were thereafter asserted as grounds for a new trial, which

motion was denied as well. They are here renewed on appeal.

Most recently, we summarized the law governing Batson-Wheeler motions

in these terms:

“Both the state and federal Constitutions prohibit the use of peremptory

challenges to remove prospective jurors based solely on group bias. (Batson,

supra, 476 U.S. at p. 89; Wheeler, supra, 22 Cal.3d at pp. 276-277.) Recently,

‘the United States Supreme Court reaffirmed that Batson states the procedure and

standard to be employed by trial courts when challenges such as defendant’s are

made. “First, the defendant must make out a prima facie case by ‘showing that the

totality of the relevant facts gives rise to an inference of discriminatory purpose.’

[Citations.] Second, once the defendant has made out a prima facie case, the

‘burden shifts to the State to explain adequately the racial exclusion’ by offering

permissible race-neutral justifications for the strikes. [Citations.] Third, ‘[i]f a

race-neutral explanation is tendered, the trial court must then decide . . . whether

the opponent of the strike has proved purposeful racial discrimination.’

[Citation.]” ’ (People v. Cornwell (2005) 37 Cal.4th 50, 66-67, quoting Johnson v.

California (2005) 545 U.S. ___, ___ [125 S.Ct. 2410, 2416], fn. omitted

(Johnson).) The high court clarified that ‘a defendant satisfies the requirements of


Batson’s first step by producing evidence sufficient to permit the trial judge to

draw an inference that discrimination has occurred.’ (Johnson, supra, at p. ___

[125 S.Ct. at pp. 2417-2419], revg. in part People v. Johnson (2003) 30 Cal.4th

1302, 1318 [requiring the defendant to ‘show that it is more likely than not the

other party’s peremptory challenges, if unexplained, were based on impermissible

group bias’].)

“In determining whether the defendant ultimately has carried his burden of

proving purposeful racial discrimination, ‘the trial court “must make ‘a sincere and

reasoned attempt to evaluate the prosecutor’s explanation in light of the

circumstances of the case as then known, his knowledge of trial techniques, and

his observations of the manner in which the prosecutor has examined members of

the venire and has exercised challenges for cause or peremptorily . . . .’ ” ’

(People v. Reynoso (2003) 31 Cal.4th 903, 919) ‘[T]he trial court is not required

to make specific or detailed comments for the record to justify every instance in

which a prosecutor’s race-neutral reason for exercising a peremptory challenge is

being accepted by the court as genuine.’ (Ibid.) Inquiry by the trial court is not

even required. (Id. at p. 920.) ‘All that matters is that the prosecutor’s reason for

exercising the peremptory challenge is sincere and legitimate, legitimate in the

sense of being nondiscriminatory.’ (Id. at p. 924.) A reason that makes no sense

is nonetheless ‘sincere and legitimate’ as long as it does not deny equal protection.

(Ibid.)” (People v. Guerra (2006) 37 Cal.4th 1067, 1100-1101.)

The first Batson-Wheeler motion was made after the prosecutor

peremptorily excused four Black female and one Black male prospective jurors.

The court quickly declared that a prima facie case had been made out, observing

that the five prospective Black jurors peremptorily excused by the prosecutor were

the only Blacks to have “hit the [jury] box,” and candidly stating, “[T]hat raises a

suspicion in my mind, Mr. Landswick [the prosecutor], that you might be


excluding blacks as a class in this case.” The court asked the prosecutor for his

reasons for excusing the Black prospective jurors.

It quickly became apparent, however, that the court, the prosecutor, and

defense counsel were all in agreement on the matter of the prosecutor’s

peremptory challenge of Black male Prospective Juror Gary L., whom all agreed

had been peremptorily excused for exhibiting “hostility” toward the prosecution.

The court indicated it was satisfied the challenge to Mr. L. was “a bonafide

peremptory challenge,” and defense counsel signaled his agreement with the

court’s conclusion. On appeal, defendant is not contesting the peremptory

challenge of Gary L. as violative of Batson-Wheeler.

The prosecutor then indicated that for all four of the remaining Black

female prospective jurors: Carol F., Hersey D., Diane B., and Helen N., he had

written down in his voir dire notes6 “sympathy for the defendant” as the reason for

his peremptory excusal of each of them. He also indicated, with regard to

Prospective Juror Helen N., that “she didn’t want to be here because she had a

convention in Palm Springs.”


The voir dire in this capital murder trial was conducted pursuant to the

individualized and sequestered jury selection procedures outlined in Hovey v.
Superior Court
(1980) 28 Cal.3d 1. Consequently, jury selection lasted nearly
three months. As of May 14, 1991, the date on which the peremptory challenges
were exercised and the Batson-Wheeler motions heard and denied, each of the
prospective jurors to whom the motion was directed had been individually voir
dired at different times during the preceding three-month period. Prospective
Juror Carol F. was in the first group of prospective jurors; her voir dire was
conducted on February 27, 1991, approximately 10 weeks prior to the date on
which she was peremptorily excused by the prosecutor. The voir dire of
Prospective Juror Hersey D. was conducted on April 8, 1991, approximately six
weeks earlier. The voir dire of Prospective Juror Diane B. was conducted on April
15, 1991, four weeks earlier. The voir dire of Prospective Juror Helen N. was
conducted on April 23, 1991, three weeks prior to the date she was peremptorily
excused and the Batson-Wheeler claims heard and denied.


When asked by the court how he had come to his conclusion, the prosecutor

stated, “From their voir dire and when they were here before.” He further

indicated, “There are several blacks that are on the panel that are not within that

classification,” representing to the court that they would be “acceptable” to him.7

He added that all four prospective jurors “had expressed the fact that the defendant

was Black and that they would have sympathy for that person and they are going

to identify with the defendant.”

At that point the court volunteered its observations with regard to

Prospective Juror Helen N., observations relating back to the prosecutor’s earlier

comment that “she didn’t want to be here because she had a convention in Palm

Springs.” The court informed the prosecutor and defense counsel, “Well, first of

all, Ms. [N.], there’s no problem with a peremptory challenge. I remember her

saying that she had this convention and she – there was some reference to a

convention, and she was very unhappy having to come back.” The court then

acknowledged the prosecutor’s stated reason for excusing all four Black women,

commenting, “If there is going to be an express sympathy for the defendant in this

case in the guilt phase, it may be that they can’t be objective.” Defense counsel

also acknowledged that the four Black female jurors peremptorily excused by the

prosecutor had exhibited or expressed sympathy for the defendant, although he

went on to state his belief that, “most people are sympathetic and they feel sorry

for Mr. Stanley being in here,” adding, “I don’t think that’s a valid excuse.”


This court has observed that, “While the fact that the jury included

members of a group allegedly discriminated against is not conclusive, it is an
indication of good faith in exercising peremptories, and an appropriate factor for
the trial judge to consider in ruling on a Wheeler objection.” (People v. Turner
(1994) 8 Cal.4th 137, 168 (Turner).) Here, at the conclusion of jury selection,
defendant’s jury included one Black male juror. Two of the three alternate jurors
were also Black, although they were ultimately never seated on the jury.


The court asked the prosecutor if he would like to respond to counsel’s

suggestion that demonstrable sympathy for the defendant may not be a “valid

excuse.” The prosecutor responded as follows, “Yes. And the other people that

I’ve excused, Catherine [R.] and Pamela [O.], Ms. [R.] was a sociologist. If you

recall, she would require a lot of — She is a white woman. She would require

demographics on the part of the prosecution.” The court responded, “But we are

not concerned about that,” to which the prosecutor replied, “Well, now I’m

commenting on [defense counsel]. What I’m saying is that I’ve excused four

black women and four white women and one black man, and all of them expressed

similar attitudes towards the defendant, sympathy to the defendant.”

The court proceeded to deny the first Batson-Wheeler motion with the

following comments, “All right. Well, the Court comes to the conclusion then in

the guilt phase if there is — if there is some sympathy toward the defendant,

maybe these jurors cannot becannot be completely impartial because then

their sympathy may, in fact, affect their deliberations.” (Italics added.) The court

went on, “But I want to caution you, Mr. Landswick, that if this continues you

may have a real problem with this. I mean, I’m aware of the facts. Based upon

your representation, some of the white jurors that you’ve excused also expressed

the same feelings toward the defendant. They felt sympathetic and may not be

objective in their judgment.” The court added, “I’ll deny the Wheeler motion for

the time being, and then we’ll just see what happens.”

We agree with respondent that the initial Batson-Wheeler motion was

properly denied. The peremptory excusal of Gary L. is not contested. It is also

clear that both the court and the prosecutor believed a separate race-neutral reason

appeared for the peremptory excusal of Ms. Helen N., as she seemed to be

expressing anxiety or concern over a conflict between her potential service on

defendant’s jury and a convention in Palm Springs. Although defense counsel


made no comment one way or the other about Ms. N.’s stated concerns over the

conflict, those concerns were apparently shared by both the court and the

prosecutor. The initial Batson-Wheeler motion therefore boiled down to a

challenge to the prosecutor’s peremptory excusal of three Black female

prospective jurors: Carol F., Hersey D., and Diane B.

Ultimately, “[t]he trial court was obligated to evaluate ‘all the

circumstances of the case’ in the step three evaluation” of whether the prosecutor’s

race-neutral reason for peremptorily excusing the Black female prospective jurors

was “sincere and credible,” or whether the defendant instead sustained his burden

of proving unlawful discriminatory intent in the exercise of the peremptory

challenges. (Reynoso, supra, 31 Cal.4th at p. 925; Wheeler, supra, 22 Cal.3d at

p. 280.) The court’s comments summarized above reflect that the court did

scrutinize the sincerity and credibility of the prosecutor’s stated reason for

exercising the peremptory challenges against the Black female prospective jurors.

Those comments further reflect that the court accepted as sincere the prosecutor’s

proffered reason (“sympathy for the defendant”) for peremptorily excusing each of

the prospective jurors in question.

“Since the trial court was in the best position to observe the prospective

jurors’ demeanor and the manner in which the prosecutor exercised his

peremptory challenges, the implied finding, that the prosecutor’s reasons for

excusing [the prospective jurors], including the demeanor-based reason, were

sincere and genuine, is entitled to ‘great deference’ on appeal. (Batson, supra, 476

U.S. at p. 98, fn. 21; [People v.] Johnson [(1989)] 47 Cal.3d [1203,] 1221.)”

(People v. Reynoso, supra, 31 Cal.4th at p. 926.)

It bears emphasizing that a match in the skin color between a defendant and

a prospective juror does not preclude a peremptory excusal on grounds that the

juror exhibited sympathy or bias either for or against the defendant who is of the


same race. What Batson and Wheeler prohibit is excusal of a juror on the basis of

“group bias,” i.e., the assumption that a member of a particular group will, because

of such membership, harbor particular attitudes or biases. “A party does not

offend Batson or Wheeler when it excuses prospective jurors who have shown

orally or in writing, or through their conduct in court, that they personally harbor

biased views.” (See People v. Lewis and Oliver (S033436) (2006) __ Cal.4th __

[at p. 53].)

The record of the hearing on the new trial motion lends considerable

support to the trial court’s conclusion that the prosecutor was sincere when

offering “sympathy for the defendant” as the race-neutral reason for his

peremptory excusal of the prospective jurors in question. The Hovey voir dire

resulted in a three-month long jury selection process. As of the date the

peremptory challenges were exercised and the Batson-Wheeler claims raised, 10

weeks had passed since the voir dire of Carol F., six weeks since the voir dire of

Hersey D., and four weeks since the voir dire of Diane B. At the hearings

conducted on the day the Batson-Wheeler claims were first raised, the prosecutor

had only his notes from the prior three months of jury selection to refer back to. In

contrast, at the new trial motion he had the additional benefit of review of the

record of the individual voir dire of each prospective juror to whom the Batson-

Wheeler motions were directed. The relevant voir dire transcripts reflect that the

prosecutor was using the notation “sympathy for the defendant” in his notes quite

broadly, intending it as a shorthand for varying indications of bias in favor of the

defendant, either expressed or exhibited by the prospective jurors during their voir


For example, with regard to Prospective Juror Carol F., the prosecutor

indicated at the hearing on the new trial motion that during her voir dire she had

asked the court whether she was “expected to look for sympathy” or take into


account any sympathetic feelings. He added, “When she asked that question, she

was looking to the defendant.” He also pointed out that she had stated during her

voir dire, “I have some reservations about the possible inequal application of the

death penalty to minority people.” In response to questions regarding whether she

could vote for the death penalty, the prosecutor noted she had stated, “I believe

that there is always a mitigating factor.” In response to questions about her

feelings regarding weighing life without the possibility of parole against the death

penalty, the prosecutor noted that at one point she had stated, “I honestly can’t

weigh one as being more relevant than the other.” The prosecutor felt “that was a

sympathetic evaluation to this defendant.” He also noted she had stated with

regard to the death penalty, “I feel that there is and perhaps there seems to me to

be a disproportionate number of blacks that are assigned that penalty.”

Each of these representations made by the prosecutor at the hearing on the

new trial motion is borne out by the record of Prospective Juror Carol F.’s voir

dire. Yet in his notes, on which he had to place principal reliance in responding to

the Batson-Wheeler motion at the end of a three-month long jury selection process

involving the questioning of numerous potential jurors, the prosecutor had simply

jotted down “sympathy for the defendant” as a notation of his concerns arising

from Carol F.’s voir dire conducted 10 weeks earlier.

With regard to prospective juror Hersey D., the prosecutor indicated at the

hearing on the new trial motion that during her voir dire she was asked by the

court, “Do you think that you personally could ever vote to execute another human

being?” She answered, “I think I can.” The prosecutor was permitted to ask

follow-up questions. He asked Ms. D., “What does ‘I think I could [sic]’ mean to

you. May I ask this: Does it mean ‘yes,’ does it mean ‘maybe,’ or does it mean ‘I

don’t know’?” Ms. D. replied, “I think it means ‘maybe’.” The prosecutor also

mentioned a second concern with Ms. D. at the hearing on the new trial motion:


At another point in her voir dire, she had stated, “I think of murder and killing in

two different senses. Killing is something you don’t plan to do.” The prosecutor

explained his concern with her response in this way, “Now, let us assume, as I did

when I was reviewing these people, that there is no evidence of preplanning and

premeditation. Do I get to the death penalty with Hersey D.? Do I get to the

penalty phase? I don’t believe I do.”

From these remarks we can infer the prosecutor was concerned that Ms. D.

might have had difficulty finding defendant guilty of first degree felony murder if

the robbery and fatal stabbing of Rudy Rubalcava was not shown to have been

planned or premeditated. Here again, although the transcript of Hersey D.’s voir

dire lends support to the prosecutor’s concerns and representations made at the

hearing on the new trial motion, in his notes of her voir dire, written six weeks

before the Batson-Wheeler claims were raised, he simply jotted down “sympathy

for the defendant” as a notation of those concerns.

With regard to Prospective Juror Diane B., the prosecutor indicated at the

hearing on the new trial motion that during her voir dire he had become concerned

when she began relating her experiences as an AC Transit bus driver. At one point

she had stated, “And I’ve seen people that has been so far down and have made—

maybe the lifestyle that they were living put them on that path, and then I’ve also

seen people have went in that direction have turned their lives around.” The

prosecutor explained at the hearing, “To me, I can see the sensitivity of Diane B.

to the defendant.” He therefore had asked her during her voir dire, “[I]s there

anything that makes you think, [‘]I don’t think I can sign a death warrant against

him, even though the evidence showed me.[’]” Ms. B. replied, “When I first had

seen the defendant, the first thing I thought about, you just never know. He

doesn’t look like he could have done anything like that, you know.” The

prosecutor then asked her a second follow-up question, “Is there anything that


looking at him that makes you kind of sympathize with him?” Ms. B. replied

“Yes,” and indicated further, “He’s young. He’s a young man, and he has a whole

life ahead of him. I’m young. I know what’s ahead of me in life. And to think

that he’s been in there [county jail] for a year, that’s a year lost. Or two years

now. It’s sad. It’s really sad.”

Once again, the prosecutor’s voir dire notes regarding Prospective Juror

Diane B., on which he relied four weeks later in responding to the Batson-Wheeler

inquiries, simply indicated “sympathy for the defendant.”

The prosecutor made a further comment at the hearing on the new trial

motion that sheds additional light on the broad context in which he was using the

notation “sympathy for the defendant.” In describing his concerns with Black

Prospective Juror Gary L., who all agree was not excused for racially suspect

reasons, he explained, “One of the problems that I had with the issue of sympathy

was obvious with Gary L. If you recall, I had made a challenge for cause of

[Gary L.] because of what I called an antagonistic attitude. In my mind, [he] had

an antagonistic attitude toward the entire criminal justice system.” (Italics added.)

This comment suggests the prosecutor sometimes used the notation “sympathy for

the defendant” as a shorthand for “bias” in favor of the defendant or against the

criminal justice system.

The “second” Batson-Wheeler motion is arguably more accurately

characterized as a renewal of the first motion. Within a very short time after the

denial of the first motion, the prosecutor peremptorily challenged Black female

Prospective Juror Tanjala S., at which point defense counsel advised the court,

“We would like to renew our motion, Your Honor”, and the court, counsel and

defendant returned to chambers for a further hearing. The court indicated for the

record that since the first motion had been denied a short time earlier, two Black

prospective jurors had been seated in the jury box. One, John C., was twice


passed over by the prosecutor and ultimately wound up serving on defendant’s

jury. Although the court never expressly indicated it was once again finding a

prima facie case of Batson-Wheeler error as a result of the prosecutor’s

peremptory excusal of a single additional Black female prospective juror, the

parties correctly observe that such a finding is implied given that the court

immediately asked the prosecutor to state his race-neutral reasons for excusing

Tanjala S.

When asked by the court, “What was the reason for the excuse [sic]?,” the

prosecutor stated, “Yes. Once again the sympathy for the defendant attitude.”8

The court, in an effort to probe the credibility of the prosecutor’s race-neutral

reason for peremptorily excusing Tanjala S. without delay, requested the court

reporter to produce the “daily” transcript of her voir dire, which the court then

reviewed to determine whether her answers reflected any notable sympathy for the

defendant. After reviewing the transcript, the court indicated, “I can tell you, Mr.

Landswick, I didn’t detect anything in her answers that would lead me to believe

that she was sympathetic.” The prosecutor reviewed the transcript as well, and

indicated he too could find nothing therein reflecting that Tanjala S. had

specifically expressed sympathy for the defendant.

However, in the course of his exchange with the court, the prosecutor

pointed to a number of intangible signs that, he asserted, reflected Ms. S.’s

inclination to sympathize with the defendant. The prosecutor indicated, “Just the

way they appear to me in the courtroom.” He then told the court, “Her body

language. The way they sit and look at the defendant. I make these notes as you

conduct the voir dire . . . .” The court responded, “Well, that’s what I want to


The voir dire of Prospective Juror Tanjala S. had been conducted on March

5, 1991, approximately nine weeks prior to the date she was peremptorily excused
and the prosecutor called upon to respond to the Batson-Wheeler motions.


know.” When the court urged the prosecutor to be more specific, asking him,

“What? What? On the record, the way she sat, the way she looked at the

defendant?,” the prosecutor replied, “Yes, it’s her appearance in the courtroom and

how she looks at the defendant.” He then added, “Just I got the impression she

was very sympathetic toward him [defendant] and his posture, his position.”

The court proceeded to deny the renewed Batson-Wheeler motion with

these comments, “All right. Mr. Landswick, I’ll deny the motion this time, but if

you excuse another female, you’d better be able to point to me with articulable

facts other than they are sympathetic to the defendant. You can say that—Most of

these women that you excused by their answers and by the way they talked, it’s

arguable that they were sympathetic to the defendant, the defendant being black.

But if you’re going to excuse another black female, I want some articulable facts

that they—either answers they made, answers they made on the record or

something they said on the record that leads you to that conclusion.” The

prosecutor signaled his understanding to the court. The court added, “Otherwise,

that’s going to be the end of the ballgame.” The prosecutor responded again,

“Okay, Your Honor.”

We have examined the transcript of the voir dire of Tanjala S., as well as

the transcript of the hearing on the new trial motion at which the prosecutor sought

once again to explain her peremptory challenge. Although at the time the Batson-

Wheeler motion was entertained both the court and the prosecutor, having quickly

reviewed the daily transcript of her voir dire, could point to nothing reflecting her

“sympathy” for the defendant, our review reveals that several relevant factors were

brought to light at her voir dire that do indeed appear to fall within the

prosecutor’s broad use of the term “sympathy for the defendant.”

Tanjala S. was a 24-year-old single parent with a three-year-old child and

no prior jury trial or court experience. When asked by the court during her voir


dire, “Do you think that you could personally ever vote to execute another human

being?,” she replied, “That’s a hard question.” When the court probed further by

asking her, “So you think that you have it in you to vote to execute somebody if

you thought that person deserved it?,” she replied, “I thought about this question a

lot, and I still—it’s really hard to answer whether you can.” In response to a jury

questionnaire question about whether she could vote for the death penalty, Ms. S.

had replied, “ ‘I feel that if the death penalty is imposed on someone, there should

be no doubt at all that the defendant is guilty.’ ”

In arguing against a new trial, the prosecutor explained, “My burden was

not to prove absolute certainty. My burden was to prove beyond a reasonable

doubt, and I felt that she would require a higher burden on my part to convict the

defendant before we could get into the penalty phase where she would have to be

persuaded to resolve a very difficult question.” Although Tanjala S. had also

suggested during her voir dire that she could vote for the death penalty, “If I were

persuaded. I’d have to be persuaded,” her responses quoted above nonetheless

reflect a valid basis for the prosecutor’s concerns later articulated at the hearing on

the motion for a new trial.

The prosecutor stated further at that hearing, “And, also, in my analysis of

Tanjala [S.], when I said that she had appeared and there was an appearance and

the way she appeared to me, she also said that if a person killed eight people that

the death penalty might be warranted. [¶] My case involved the death of one and

the attempted killing of another, and I felt that she may be sympathetic toward the

defendant because he was not a mass, multiple murderer.”

Here again, Tanjala S.’s voir dire responses reflect the basis for the

prosecutor’s concerns. She volunteered during her voir dire, “Now if you’ve sat

there and murdered eight people or something like that, you don’t deserve to live.

I mean, I think it’s warranted in that case. But it depends on the case and it


depends on the crime, I’m sure.” When the prosecutor followed up by asking her,

“You mean the severity of the crime or like the planning or what?,” she responded,

“The severity. I mean, was it premeditated or was it just something, an accident

or—it depends on.” She also revealed her belief that there was little if any

difference between the death penalty and life without the possibility of parole

when she stated, “[E]ither way—I mean, he’s going to either die in jail or he is

going to die in the gas chamber.” When the prosecutor probed further by asking

her, “Which of the two, Ms. [S], do you feel is worse, or do you feel they are

equally as bad?,” she replied, “They are equally as bad. One is just quicker. It’s

the same thing, actually, but, you know.”

Although these responses may not necessarily reflect “sympathy for the

defendant [Stanley]” personally, they do fall within the prosecutor’s broad use of

that term as his shorthand notation for sympathetic or pro-defense biases revealed

by Tanjala S. and the other excused prospective jurors during their voir dire. In

sum, the record as a whole confirms that the prosecutor had race-neutral reasons

for his peremptory excusal of each of the prospective jurors scrutinized in

connection with the Batson-Wheeler motions. That the prosecutor, in the press of

responding to the motions, had some difficulty articulating all the circumstances

leading to his assessment of the prospective jurors weeks or months after

completion of their individual voir dire does not detract from this conclusion. We

conclude the Batson-Wheeler motions were properly denied.

B. Guilt Phase Issues

1. Refusal to give CALJIC No. 3.40 (proximate cause instruction)

Defendant argues the court deprived him of due process and a fair trial

when it refused his request to give CALJIC No. 3.40, which he characterizes as a

“pinpoint instruction” that “would have directed the jury’s attention to the


question of whether [defendant’s] actions were the proximate cause of

[Rubalcava’s] death.”9 Specifically, he argues that “[s]ubstantial evidence was

admitted at trial supporting an inference that Rudy Rubalcava died of

complications suffered after the knife attack and due to the failure to provide him

with competent and adequate medical care.” At the time of his autopsy,

Rubalcava weighed approximately 90 pounds more than what was believed to be

his normal weight. The defense argued that his death was caused by unforeseeable

medical malpractice, which supposedly occurred after he was stabbed.

Pinpoint instructions must be given on request only when there is evidence

to support them. (People v. Saille (1991) 54 Cal.3d 1103, 1119.) Here, Dr.

Badger, who performed the surgeries on Rubalcava, testfied he died of cardio-

respiratory arrest as a result of continued bleeding from his multiple stab wounds.

Dr. Rogers, who performed the autopsy, likewise testified the cause of death was

multiple stab wounds and incised wounds. Rubalcava lost seven quarts of blood

as a result of the stabbing attack. As a result of the quantity of fluids required to

be pumped into his body in the effort to keep him alive, and his poor urine output,

Dr. Badger indicated he was not surprised by Rubalcava’s weight gain, which Dr.

Rogers detected during the autopsy and similarly characterized as bloating from

retention of liquids, a condition known as edema. Significantly, neither medical

expert listed that condition as a cause of death.

In short, the evidence established that Rubalcava died from his stab wounds

inflicted by defendant, and that his retention of fluids and consequent weight gain


The version of CALJIC No. 3.40 in effect at the time of trial would have

told the jury that, “To constitute the crime of _____ there must be in addition to
the _____ an unlawful act which was the proximate cause of that _____. [¶] A
proximate cause of the _____ is a cause which, in natural and continuous
sequence, produces the _____ and without which the _____ would not have


at the time of death was a medically foreseeable and explainable condition that

resulted from the attempt to keep him hydrated and alive. “If a person inflicts a

dangerous wound on another, it is ordinarily no defense that inadequate medical

treatment contributed to the victim’s death.” (People v. Roberts (1992) 2 Cal.4th

271, 312; see People v. McGee (1947) 31 Cal.2d 229, 240.) It was thus not error

to refuse defendant’s requested “pinpoint” proximate cause instruction. Even if

we were to conclude otherwise, given the extent and nature of the stab wounds

inflicted on the victim by defendant, any such error would necessarily be harmless.

(People v. Fudge (1994) 7 Cal.4th 1075, 1112.)

2. Juror misconduct (newspaper article covering opening statements)

On May 16, 1991, the second day of trial, it was brought to the court’s

attention that an article had appeared in that morning’s edition of the Oakland

Tribune describing the opening statements that had been presented in defendant’s

trial the previous day. The article mentioned that, “A prosecutor yesterday began

the trial of an ex-convict by weaving a tale of the defendant’s two-month string of

Oakland robberies that included the killing of a popular bartender.” The article

also indicated the defendant “has served time in state prison for burglary.”

Finally, the article described a colloquy between defendant, the prosecutor, and the

court concerning the Batson-Wheeler motion that had been made during jury

selection: “At the start of yesterday’s proceeding, Stanley personally complained

to Judge Alfred Delucchi that the prosecutor had excluded most of the black

potential jurors from serving on the panel. [¶] ‘My life is on the line because this

is a death penalty case and the makeup of the jury is unfair,’ he told the judge. [¶]

The jury includes one black man among the 12 regular jurors and two of the three

alternates are black people. [¶] Looking directly at Stanley, [Deputy District

Attorney] Landswick responded that ‘you don’t deserve anything special because


you’re black . . . . You only deserve a fair trial and I’ll do my best to see that you

get that.’ [¶] The prosecutor also explained that some of the potential black jurors

were excused because they indicated they had a certain compassion for Stanley

because of his race.”

One juror, James C., had read the article. The court proceeded to examine

him outside the presence of the other jurors as follows:

“THE COURT: And we have Juror Number One, Mr. [C.], here having

apparently read the article in the paper this morning. [¶] Mr. [C.], can you—can

you tell us what you read or what you recall reading in the newspaper?

“[JUROR C.]: Well, I remember that Will—I can’t remember who wrote


“THE COURT: Will Jones?

“[JUROR C.]: Will Jones. Okay. [¶] And they surveyed, I guess, what

had actually happened by the opening comments of both men, the prosecution and

the defendant attorneys. And I thought there was nothing that hadn’t—I was

pleased that it was pretty factual for what actually had happened, I thought.

“THE COURT: Yeah. Do you recall reading any comments in the paper

about the defendant at all other than the statements he may have made to the


“[JUROR C.]: No, no. I only—No. I thought—Actually, I read the

Tribune. I thought it was a pretty good report of what had happened yesterday,

accurate, I should say.

“THE COURT: Do you recall whether or not there was any allegations as

to whether or not the defendant has any prior convictions?

“[JUROR C.]: No, I didn’t.


“[JUROR C.]: I’ve not heard that at all any place.


“THE COURT: Okay. And you have no independent recollection of ever

reading anything like that in the article?

“[JUROR C.]: No.

“THE COURT: Okay.”

The court then permitted Defense Counsel Hove to ask the juror if he

recalled any reference in the article to a discussion of the racial composition of the


“[DEFENSE COUNSEL]: In regards to the article, did you notice or do

you recall whether or not, in reading it, there was any reference to the fact of the

race of Mr. Stanley and as to whether or not he would get a fair trial, comments

going back and forth between he and the prosecutor, Mr. Landswick?

“[JUROR C.]: I don’t remember anything about race. I remember that

there was a quote in there—I’m not sure of who was quoted or who was stated, but

yes, I thought it was the Judge said that he was out to see that he got a fair trial.

I’m not sure who was quoted by that.

“THE COURT: But you have no independent recollection about any

reference being made to race?

“[JUROR C.]: No, I don’t.

“THE COURT: Okay, Anything else?

“[DEFENSE COUNSEL]: From what you read—obviously you’ve heard

only one witness in this case and the opening statements that were made.

“Did you have—reading the article have any effect on you after you’ve

heard that one witness, Dr. Badger?

“[JUROR C.]: I don’t even remember that he was—that he was mentioned.

I don’t remember that. I just remember that the opening arguments were sort of

summarized. That’s really what I remember. And I thought it was accurately



“THE COURT: Reproduced?

“[JUROR C.]: Yes.

“[DEFENSE COUNSEL]: Would you say you read the article more than

one time?

“[JUROR C.]: Oh, no.

“[DEFENSE COUNSEL]: Okay. And would that have been—

“[JUROR C.]: I read the whole paper.

“[DEFENSE COUNSEL]: You read the whole paper?

“[JUROR C.]: Yeah. Almost all of it, yes.

“[DEFENSE COUNSEL]: I don’t know. Was there any discussion up

there in the jury room with any of the other jurors about the fact that there was, in

fact, an article in the paper?

“[JUROR C.]: No, there was no discussion.

“It wasn’t brought up at all.

“[DEFENSE COUNSEL]: Thank you.”

The court concluded its inquiry of Juror C. with the following two


“THE COURT: Is there anything that you may have read reciting the

events that took place yesterday in this courtroom that you think might affect your

ability to be a fair juror in this case?”

“[JUROR C.]: No.

“THE COURT: You could still sit here and listen to it and call it the way

you see it, correct?

“[JUROR C.]: Yes.”

The court permitted Mr. C. to remain seated on the jury, and gave the

following admonishment to the jurors: “Now Ladies and Gentlemen of the Jury,

because the article has now appeared in the Tribune and it may appear in some of


the other papers—and I don’t know whether its going to appear or not or be

presented or not on TV—but in the interest of fairness, I want to advise you now

that if you see any reference to this trial in any of the media—It’s on TV, turn it

off. If you see any newspaper articles about this trial, I want to caution you now

please don’t read those newspaper articles because what we want you to do is to

decide this case only on what you hear in the courtroom, and we don’t want you to

be—to use the word—and I don’t mean it to be sarcastic—we don’t want you to

be polluted by some outside information that may or may not be correct.”

Juror C.’s reading of the newspaper article, and “his inadvertent receipt of

information outside the court proceedings,” was misconduct giving rise to a

rebuttable presumption of prejudice. (People v. Zapien (1993) 4 Cal.4th 929, 994

(Zapien); People v. Holloway (1990) 50 Cal.3d 1098, 1108.) “ ‘ “[W]hether a

defendant has been injured by jury misconduct in receiving evidence outside of

court necessarily depends upon whether the jury’s impartiality has been adversely

affected, whether the prosecutor’s burden of proof has been lightened and whether

any asserted defense has been contradicted. If the answer to any of these

questions is in the affirmative, the defendant has been prejudiced and the

conviction must be reversed. On the other hand, since jury misconduct is not per

se reversible, if a review of the entire record demonstrates that the appellant has

suffered no prejudice from the misconduct a reversal is not compelled.”

[Citation.]’ (People v. Williams (1988) 44 Cal.3d 1127, 1156.)” (Zapien, at

p. 994.)

At the outset, we note defendant has conceded that his counsel failed to

object to Juror C.’s continued service on the jury, and failed to request a mistrial

on grounds of juror misconduct. As such, the claim is waived on appeal. (People

v. Billings (1981) 124 Cal.App.3d 422, 433, overruled on other grounds in People


v. Karis (1988) 46 Cal.3d 612, 642, fn. 22; see People v. Lucas (1995) 12 Cal.4th

415, 486-487.)

Juror C. was the only juror who read the article; he confirmed there had

been no discussion with any of the other jurors about the fact that an article about

the case had appeared in the morning paper. In response to the court’s and

counsel’s questioning, he indicated he had no recollection of having read anything

about defendant’s prior criminal record, or about defendant having discussed the

racial makeup of the jury with the court. Juror C. read through the article only

once, and recalled that it “sort of summarized” the opening arguments, “That’s

really what I remember. And I thought it was accurately reproduced.” He further

indicated nothing he read would affect his ability to be a fair juror in the case.

After ruling that Juror C. could remain seated on the jury, the court admonished

the jury, “in the interest of fairness,” to avoid “any reference to this trial in any of

the media,” including any newspaper articles that might appear about the trial,

“because what we want you to do is to decide this case only on what you hear in

the courtroom . . . .”

Defendant suggests that, “While it is true that [Mr. C.], when questioned,

specifically denied recalling any reference to [defendant’s] past convictions or

[his] complaint concerning the racial composition of the jury . . . these denials

defy all logic and credibility.” Defendant urges us to reject Juror C.’s responses as

lacking in credibility and to find instead that the juror read the article “in such a

manner as to conveniently forget the highly prejudicial matters” contained therein.

To the contrary, normally “[w]e accept the trial court’s credibility determinations

and findings on questions of historical fact if supported by substantial evidence.”

(People v. Nesler (1997) 16 Cal.4th 561, 582; People v. Pride (1992) 3 Cal.4th

195, 260.) We may not substitute our reading of the “cold transcript” in this case

for the credibility determinations reached by the trial court after making its


inquiry, observing the juror, and listening to his responses. (Abbott v. Mandiola

(1999) 70 Cal.App.4th 676, 682-683.) We find those credibility determinations

supported by substantial evidence and conclude the presumption of prejudice from

the juror misconduct has been rebutted in this case.

3. Prosecutorial misconduct (guilt phase closing arguments)

Defendant next contends the prosecutor committed misconduct during his

guilt phase rebuttal closing argument by making improper and disparaging

remarks about defendant and defense counsel, and by presenting improper

arguments on fingerprint evidence and on the cross-admissibility of evidence in

the case. We find no prejudicial misconduct on this record.

“ ‘The applicable federal and state standards regarding prosecutorial

misconduct are well established. “ ‘A prosecutor’s . . . intemperate behavior

violates the federal Constitution when it comprises a pattern of conduct “so

egregious that it infects the trial with such unfairness as to make the conviction a

denial of due process.” ’ ” (People v. Gionis (1995) 9 Cal.4th 1196, 1214; People

v. Espinoza (1992) 3 Cal.4th 806, 820.) Conduct by a prosecutor that does not

render a criminal trial fundamentally unfair is prosecutorial misconduct under state

law only if it involves “ ‘ “the use of deceptive or reprehensible methods to

attempt to persuade either the court or the jury.” ’ ” (People v. Espinoza, supra, 3

Cal.4th at p. 820.)’ (People v. Samayoa (1997) 15 Cal.4th 795, 841.)” (People v.

Hill (1998) 17 Cal.4th 800, 819.)

Regarding the scope of permissible prosecutorial argument, “ ‘ “a

prosecutor is given wide latitude during argument. The argument may be vigorous

as long as it amounts to fair comment on the evidence, which can include

reasonable inferences, or deductions to be drawn therefrom. [Citations.] It is also

clear that counsel during summation may state matters not in evidence, but which


are common knowledge or are illustrations drawn from common experience,

history or literature.” [Citation.] “A prosecutor may ‘vigorously argue his case

and is not limited to “Chesterfieldian politeness” ’ [citation], and he may ‘use

appropriate epithets . . . .’ ” ’ (People v. Wharton [(1991)] 53 Cal.3d [522,] 567-

568.)” (People v. Williams (1997) 16 Cal.4th 153, 221.)

Finally, “a defendant may not complain on appeal of prosecutorial

misconduct unless in a timely fashion—and on the same ground—the defendant

made an assignment of misconduct and requested that the jury be admonished to

disregard the impropriety. (People v. Berryman (1993) 6 Cal.4th 1048, 1072.)”

(People v. Samayoa (1997) 15 Cal.4th 795, 841 (Samayoa).)

Defendant complains that the prosecutor committed misconduct during his

guilt phase rebuttal argument when he told the jury that defense counsel “imagined

things that go beyond the evidence” and told them a “bald-faced lie.” Although

defense counsel lodged objections to these remarks, he failed to further request

admonitions that could have cured any harm, thereby waiving the claim on appeal.

(People v. Montiel (1993) 5 Cal.4th 877, 914.)

We have examined the record and conclude the prosecutor’s remarks were

merely responsive to defense counsel’s own arguments to the jury on the state of

the evidence. Prosecution witness Fred Stewart testified he saw defendant in

possession of a buck knife on the night before Rubalcava’s robbery murder, that it

appeared a little thinner than the buck knife later received into evidence in

connection with those crimes (People’s exhibit No. 2), and that it did not have a

broken tip. Stewart was unwilling to state, on cross-examination, that People’s

exhibit No. 2 was not the knife he had seen in defendant’s possession. Defense

counsel’s suggestion to the jury that the buck knife in evidence was not the knife

Stewart had seen in defendant’s possession, and his further suggestion that the

knife Stewart described was “more like a stiletto,” are what prompted the


prosecutor, in his rebuttal argument, to tell the jury counsel “imagined things that

go beyond the evidence,” and that he had told them a “bald-faced lie.” The

prosecutor’s argument, although intemperate in tone, did little more than urge the

jury not to be influenced by counsel’s arguments, and to instead focus on the

testimony and evidence in the case. (See People v. Gionis, supra, 9 Cal.4th at

p. 1216.)

We reach the same conclusion regarding the prosecutor’s suggestion to the

jury that defense counsel was on an “imaginary trip” when he summarized the

testimony of Lakesha Potts, one of the girls who recovered attempted murder

victim Fakoury’s wallet moments after defendant fled the scene of that attack.

Defense counsel argued to the jury that the witness had described Fakoury’s

assailant as having “no facial hair . . . whatsoever.” In fact, Potts testified she told

a police sketch artist that the man “had hair on the face.” Although the prosecutor

somewhat intemperately suggested defense counsel was on an “imaginary trip”

when summarizing the witness’s testimony for the jury, the prosecutor also told

the jury, “It’s for you to resolve. But the point is, is that wherever that came from,

that there was no facial hair on that person, it’s not the evidence.” (Italics added.)

When the court suggested to the prosecutor that it would be more “correct” to refer

to defense counsel’s argument as an “exaggeration,” the prosecutor responded,

“Fair enough.” When the court added, “Or an unreasonable inference,” the

prosecutor replied, “That’s even better, your Honor.” The prosecutor’s argument

in this regard did not rise to the level of misconduct.

Defendant also contends the prosecutor improperly argued facts not in

evidence in his attempt to rebut defense counsel’s argument that the absence of

defendant’s fingerprint on one of the knives in evidence established he had not

handled the knife. Defendant’s failure to object to the argument or seek a curative

admonition has waived the claim on appeal. (Samayoa, supra, 15 Cal.4th at


p. 841; People v. Gionis, supra, 9 Cal.4th at p. 1215.) In any case, the prosecutor

was merely expounding on the testimony of the fingerprint expert who testified

not everyone who handles an object will leave discernable fingerprints on the


Defendant also complains that the prosecutor’s description of him as “cold-

blooded,” “a person with no soul,” and someone “with no remorse” was

misconduct that improperly encouraged the jury to find him guilty based on his

mere propensity to commit crime. We do not find these comments rose to the

level of misconduct given the brutal and violent nature of the stabbing murder and

attempted murder, and other violent crimes of which defendant was convicted.

Nor do we agree with defendant that the prosecutor committed misconduct by

arguing certain evidence was cross-admissible for the purpose of establishing

defendant’s guilt of one or more of the other charged offenses. We have explained

that the evidence was cross-admissible. In any case, neither claim was preserved

for appeal with an appropriate objection. (Samayoa, supra, 15 Cal.4th at p. 841.)

4. Ineffective assistance of counsel at the guilt phase

Defendant argues reversal is required due to ineffective assistance of

counsel at the guilt phase. He faults counsel in four respects: for failing to move

to excuse Juror C. based on his misconduct in reading the newspaper article on the

second day of trial; for failing to object to the asserted instances of prosecutorial

misconduct or to request curative admonitions; and for failing to request a limiting

instruction to prevent or limit the jurors’ consideration of evidence as between the

various counts. Defendant further faults counsel for failing to follow through on a

representation made in his opening statement to call an Oakland police officer as a

witness to testify regarding another robbery of an Oakland cab driver that occurred

while defendant was in custody.


The standard for establishing ineffective assistance of counsel is well

settled. A defendant must demonstrate that: (1) his attorney’s performance fell

below an objective standard of reasonableness; and (2) there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been more favorable to the defendant. (Strickland v.

Washington (1984) 466 U.S. 668, 688, 694 (Strickland).) A reasonable probability

is a probability sufficient to undermine confidence in the outcome. (Ibid.)

“ ‘Reviewing courts defer to counsel’s reasonable tactical decisions in examining

a claim of ineffective assistance of counsel [citation], and there is a “strong

presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance.” ’ [Citation.] ‘[W]e accord great deference to counsel’s

tactical decisions’ [citation], and we have explained that ‘courts should not

second-guess reasonable, if difficult, tactical decisions in the harsh light of

hindsight’ [citation]. ‘Tactical errors are generally not deemed reversible, and

counsel’s decisionmaking must be evaluated in the context of the available facts.’

[Citation.]” (People v. Weaver (2001) 26 Cal.4th 876, 925-926.)

Notwithstanding defendant’s failure to object to the alleged instance of

juror misconduct, we have examined the claim on the merits and determined that

the presumption of prejudice arising from the juror’s improper reading of the

newspaper article was rebutted. We have also shown why none of the alleged

claims of improper prosecutorial argument to the jury, which for the most part

involved the prosecutor’s use of intemperate remarks or language in commenting

on the state of the evidence, rose to the level of misconduct. Finally, we have

explained why the evidence defendant claims was not cross-admissible in fact

was. We conclude defendant has not demonstrated prejudice from counsel’s

alleged omissions in these three respects. (See People v. Ghent (1987) 43 Cal.3d

739, 772.)


Last, defendant faults his counsel for failing to follow through on a

representation made in his opening statement to present the testimony of an

Oakland police officer regarding the robbery of another cab driver that allegedly

was committed in defendant’s neighborhood, by someone matching his

description, while he was in custody. Whether the failure to produce a promised

witness amounts to ineffective assistance of counsel is a fact-based determination

that must be assessed on a case-by-case basis. (See United States v. McGill (1st

Cir. 1993) 11 F.3d 223, 227.) Forgoing the presentation of testimony or evidence

promised in an opening statement can be a reasonable tactical decision, depending

on the circumstances of the case. (United States v. Turner (4th Cir. 1993) 35 F.3d

872, 904; Johnson v. Johnson (3rd. Cir. 1976) 531 F.2d 169, 177.)

On this record, even were we to conclude counsel’s failure to present the

witness and testimony described in his opening statement had no tactical

justification and fell below the normal range of competency, we would find such

error nonprejudicial. (People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) There

is no reason to assume the jury necessarily concluded counsel was unable to

produce the witness, or that the failure to produce the witness meant defendant

was the only possible suspect in the robberies of cab drivers Adelaja, Cheatham

and Dollinger, or that the jury indeed based its guilty verdicts on the failure of the

defense to produce the witness, contrary to the instructions they were sworn to

follow. Defendant’s reliance on Anderson v. Butler (1st Cir. 1988) 858 F.2d 16

(Anderson) is misplaced. In Anderson, defense counsel made his opening

statement after the prosecution rested its case-in-chief, and the very next day the

defense rested without presenting the promised expert witness testimony. Under

those particular circumstances, the Anderson court concluded the failure to

produce the promised expert witness testimony likely altered the outcome of the

case. (Id. at pp. 17-19.) Here, in contrast, the defense rested its guilt phase case


nearly three weeks after delivering its opening statement. Given the strength of

the evidence against defendant on all charged counts, we conclude counsel’s

failure to present the police witness testimony referred to in the opening statement

did not prejudice the guilty verdicts. (People v. Ledesma, supra, 43 Cal.3d at

pp. 216-218.)

5. Cumulative effect of guilt phase errors

Defendant contends that the cumulative effect of all the guilt phase errors

he has identified requires reversal. (See, e.g., People v. Hill, supra, 17 Cal.4th at

pp. 844-845.) Because we have found no appreciable error at the guilt phase,

other than the presumptively prejudicial juror misconduct which we have found

was satisfactorily rebutted, there is no cumulative prejudice to assess. (People v.

Gutierrez (2002) 28 Cal.4th 1083, 1150.)

C. Special Circumstance Issues

1. CALJIC No. 8.81.17 (robbery-murder special circumstance)

Defendant correctly notes that the felony-murder (robbery) special-

circumstance instruction given below contained a one-word error that resulted in

the first and second paragraphs of the instruction being stated in the disjunctive

(“or”) rather than the conjunctive (“and”). The trial court charged the jury with

the following version of CALJIC No. 8.81.17:

“To find that the special circumstance, referred to in these instructions as

murder in the commission of robbery, is true, it must be proved:

“1a. The murder was committed while the defendant was engaged in the

commission or attempted commission of a robbery or

“1b. The murder was committed during the immediate flight after the

commission of a robbery by the defendant or

“2. The murder was committed in order to carry out or advance the

commission of the crime of robbery or to facilitate the escape therefrom or to


avoid detection. In other words, the special circumstance referred to in these

instructions is not established if the robbery was merely incidental to the

commission of the murder.” (Italics added.)

Defendant contends the insertion of the disjunctive “or” between

paragraphs 1b and 2 of the instruction effectively omitted the intent element of the

special circumstance instruction. Although we acknowledge the instructional

error, we conclude it was nonprejudicial given the delivery of another specially

requested defense instruction as well as the closing arguments of both the

prosecutor and defense counsel.

Paragraph 2 of CALJIC No. 8.81.17 is addressed to this court’s decision in

People v. Green (1980) 27 Cal.3d 1 (Green), wherein we held that “the felony-

murder special circumstance is ‘inapplicable to cases in which the defendant

intended to commit murder and only incidentally committed one of the specified

felonies while doing so.’ [Citation.]” (People v. Raley (1992) 2 Cal.4th 870, 902

(Raley).) It is merely a clarifying clause, and does not purport to state or add an

additional element to the felony-murder (robbery) special circumstance. (See

People v. Kimble (1988) 44 Cal.3d 480, 501.) It explains to the jury that in order

for the felony-murder (robbery) special circumstance to apply, the murder must be

committed while the defendant was engaged in robbery or attempted robbery (or

immediate flight after commission of the robbery), and not the other way around,

that is to say, not if the defendant intended to commit murder “and only

incidentally committed [the robbery]” while doing so.

The erroneous insertion of the disjunctive “or” instead of “and” between

paragraphs 1b and 2 of the instruction did not, however, prevent the jury from

properly drawing the distinction between felony-murder robberies that qualify for

special circumstance treatment, and intentional murders during which a robbery is

“only incidentally committed,” which do not. This is so because the court also


charged the jury with a special instruction requested by the defense, which told

them, “If you find that the intent to rob in this case did not arise until after the

force had been used against this victim (Rubalcava), then there is no joint

operation of act and intent to find a felony murder, and such would be a defense to

the special circumstance allegation.”

The special defense instruction itself required the jury to resolve the factual

question implicated by our holding in Green, supra, 27 Cal.3d 1, and posed in the

first sentence of paragraph 2 of CALJIC No. 8.81.17. It required the jury to find

that “[t]he murder was committed in order to carry out or advance the commission

of the crime of robbery or to facilitate the escape therefrom or to avoid detection”

before the felony-murder special circumstance could be found true.

The record also reflects that the trial court delivered additional clarifying

remarks in conjunction with defendant’s specially proposed instruction that further

served to cure any error. After charging the jury with CALJIC No. 8.81.17 and

defendant’s specially requested instruction, the court told the jury, “In other

words, you’re going to have to find that if Mr. Rubalcava was killed that at the

time he was killed the defendant or whoever had committed the crime had the

specific intent to commit the robbery. If you find that Mr. Rubalcava was killed

and then the perpetrator decided, well now I’m going to rob the guy, then you

don’t have—you don’t have a [felony-murder] special circumstance because then

the thought for the robbery came after the force was used.”

The prosecutor and defense counsel likewise properly conveyed the Green

requirement to the jury in their closing arguments. The prosecutor argued,

“Special circumstance is not established if the robbery was merely incidental to

the commission of the murder. [¶] What that means, Ladies and Gentlemen, is—

is if you find that the defendant was not engaged in a robbery and killed but find

that the defendant simply intended to murder Mr. Rubalcava and then after he


murdered him he took his wallet, you cannot return this special circumstance to be

true if you find that.” Defense counsel argued, “In order for Mr. Landswick to

convince you beyond a reasonable doubt and to a moral certainty, he is going to

have to show you that somehow Mr. Stanley had the specific intent to rob Mr.

Rubalcava and went over to the gas station with that purpose and in the course of

that Mr. Rubalcava was killed. . . . If anything different is shown, you don’t have

felony murder, and you have to find the special circumstance that’s alleged as not

true.” He later added, “To show felony murder you have to show an intent to

commit a felony and then a death resulting therefrom.”

In sum, although defendant has correctly identified instructional error under

state law (Raley, supra, 2 Cal.4th at p. 903), it did not rise to the level of federal

constitutional error, as defendant would have us conclude, and it was clearly

harmless under any standard given delivery of the specially requested defense

instruction and counsels’ closing arguments. (Raley, at p. 904; People v. Clark

(1990) 50 Cal.3d 583, 609.)

2. Death eligibility and intent to kill

Defendant contends the trial court should have instructed the jury that

specific intent to kill is an element of the felony-murder (robbery) special

circumstance under which he was found death eligible. Such instruction would

have been appropriate under this court’s holding in Carlos v. Superior Court

(1983) 35 Cal.3d 131, which holding, defendant recognizes, was later overruled in

People v. Anderson (1987) 43 Cal.3d 1104, in which case we held that intent to

kill is not an element of the felony-murder special circumstance if the defendant is

the actual killer. Defendant asks us to reconsider Anderson, proferring the same

arguments we have rejected in past cases. (See, e.g., People v. Visciotti (1992) 2

Cal.4th 1, 62; People v. Belmontes (1988) 45 Cal.3d 744, 794-795.) He presents

us with no reason to depart from those precedents.


D. Penalty Phase Issues

1. Prosecutorial misconduct

Our discussion of the principles governing defendant’s guilt phase

prosecutorial misconduct claims apply as well to his claims of penalty phase


a. Questioning of witnesses

Defendant contends the prosecutor committed misconduct when he asked

Officer Emberton how he “felt” about defendant when he encountered him as a

juvenile, and the officer responded, “I felt that at some point Mr. Stanley was

going to kill someone.” Defendant argues such comment improperly placed

before the jury inadmissible evidence of his future dangerousness. (See People v.

Murtishaw (1981) 29 Cal.3d 733.) Because there was no objection or request for a

curative admonition, this claim of prosecutorial misconduct is waived on appeal.

(People v. Garceau (1993) 6 Cal.4th 140, 205-206.) In any event, Murtishaw

specifically held that expert testimony furnishing psychological predictions of a

defendant’s propensity for future violence are inadmissible because their probative

value is outweighed by the potential for prejudice. (Murtishaw, at p. 773.) Here

Officer Emberton’s testimony was not expert opinion testimony offered to predict

defendant’s future dangerousness, and was therefore not the type of evidence

prohibited by Murtishaw.

Defendant claims the prosecutor’s questioning of Officer Burnham about

the incident in which certain papers covering defendant’s cell window were

removed, leading to an altercation with defendant, was misconduct because it was

designed to elicit prejudicial testimony about defendant’s posting of anti-White

materials on his cell window. We cannot agree. The prosecutor was rightfully

seeking to rebut the defense claim that Officer Burnham had been harrassing

defendant by soliciting the officer’s testimony regarding the real reason for


defendant’s violent reaction.

Nor do we find that the prosecutor committed misconduct when he

questioned a defense expert, Dr. Pierce, for the purpose of establishing that his

expert opinion testimony was not based on any of defendant’s Youth Authority

records, which Dr. Pierce had not seen or reviewed. The defense had sought and

obtained an in limine order preventing the prosecutor from questioning Dr. Pierce

on the substance of the CYA records that he never reviewed. But as the court and

parties appeared to appreciate, the prosecutor remained free to question Dr. Pierce

for the limited purpose of establishing exactly what records he had relied on to

form his opinions. The questioning of the witness for that specific purpose was

not misconduct. Neither the trial court’s order nor defendant’s due process rights

were violated by the prosecution’s questioning of Dr. Pierce for this limited


b. Closing arguments

Defendant argues the prosecutor committed five instances of prejudicial

misconduct during his closing arguments. None were objected to, nor were

curative admonitions sought. As such, defendant has waived the claims on appeal.

(People v. Sanders (1995) 11 Cal.4th 475, 550; People v. Garceau, supra, 6

Cal.4th at pp. 205-206.)

We have reviewed the record and conclude none of the claimed instances of

misconduct has any merit. For the same reasons we did not find the questioning of

Officer Burnham to be misconduct, the prosecutor’s argument to the jury

summarizing the officer’s testimony was not misconduct, but rather was fair

comment on the evidence. Officer Burnham testified, without defense objection,

that defendant had covered his cell window with writings that “were volatile in

nature” and could lead to jail security problems. The prosecutor’s characterization

of this testimony in his arguments was not improper.


Nor was it misconduct for the prosecutor to argue to the jury regarding the

basis for defense witness Dr. Pierce’s testimony about defendant’s personality

assessment and profile. The prosecutor could properly argue the profile compiled

by Dr. Pierce did not contain any mitigating information in defendant’s favor, and

could seek to challenge the basis for the doctor’s conclusion that defendant was

not able to appreciate the criminality of his conduct or conform his behavior to the

law due to his cocaine addiction. All of the remarks made during closing

arguments that defendant would now assign as prosecutorial misconduct appear to

have been fair comment on the state of the evidence and, specifically, Dr. Pierce’s


The prosecutor clearly committed no misconduct in arguing to the jury that

defendant felt no remorse for his crimes. The prosecutor was entitled to comment

on the absence of evidence of remorse (People v. Sims (1993) 5 Cal.4th 405, 465),

and we find nothing in his arguments that would have improperly suggested to the

jury that defendant’s lack of remorse was itself an aggravating factor. (Cf. People

v. Keenan (1988) 46 Cal.3d 478, 508-509.)

Last, the prosecutor invoked the teachings of philosophers Aristotle, Kant,

and Neier in an attempt to articulate for the jury several time-worn philosophical

views on the social value and function of criminal punishment. He indicated

Aristotle had stated, “The power to do includes the power not to do,” and told the

jury defendant had the power to kill or not kill; that many of his victims begged

him not to rob or kill them, but that he “went ahead anyway and he bragged about

it.” He indicated Kant had said, “[T]he last murderer on an empty earth needs to

be punished.” And he paraphrased civil libertarian Aryeh Neier, whose response

to “the foolishness of utilitarian talk” (i.e., “What good does it do to punish

because you can’t bring Mr. Rubalcava back to our community?”), the prosecutor

suggested, would have been, “You destroy your community sense of justice if you


are allowed to forgive. Only Rubalcava is allowed to forgive. You have the

responsibility to see that justice is done for Rubalcava.” The prosecutor concluded

this line of argument by paraphrasing a statement he attributed to Neier, to the

effect that, “[I]t requires that the duty to punish must be assumed by everyone

other than the victim. [¶] That is what is meant by the rule of law, and that would

cause you to return verdicts of death against Darren Stanley.”

Significantly, we see nothing in the prosecutor’s arguments that would

suggest or imply to the jury that they should follow another, “higher law,” rather

than the law embodied in the court’s instructions. (Cf. People v. Wash (1993) 6

Cal.4th 215, 259-261.) The prosecutor was not suggesting, for instance, that the

Bible, separate and apart from the law, demands the death penalty. He was instead

merely encouraging the jurors to embrace the philosophy that, as members of

society, we are all collectively responsible to see that justice is served and the rule

of law implemented.10

2. Defendant’s voluntary absence from courtroom during Isaac

Stanley’s testimony

During the testimony of his brother, Isaac Stanley, in defendant’s behalf at

the penalty phase, defendant elected to voluntarily absent himself from the

courtroom. He now claims the trial court erred in allowing him to absent himself

from the courtroom, that the court had a sua sponte duty to give a cautionary

admonition advising the jurors not to draw any adverse inferences from his

departure, and that his absence from court on that occasion compromised the


Defendant also claims that section 190.3 required the prosecutor to give the

defense notice of aggravating evidence that would be referenced in his closing
. “It is axiomatic that argument is not evidence.” (People v. Breaux
(1991) 1 Cal.4th 281, 313.) No advance notice of the prosecution’s penalty phase
arguments, as opposed to its penalty phase evidence, was required. (See People v.
(1995) 9 Cal.4th 879, 942.)


reliability of his death sentence. Defendant fails to state a claim for relief in this

regard. We have in past cases rejected the argument that a defendant can never

waive his or her presence during the taking of evidence at trial. (People v.

Mayfield (1997) 14 Cal.4th 668, 738; People v. Jackson (1996) 13 Cal.4th 1164,


3. CALJIC 2.60 (instruction on defendant’s failure to testify)

Defendant argues the court had a sua sponte duty to reinstruct with CALJIC

No. 2.60 at the penalty phase, thereby telling the jury not to draw an adverse

inference from the circumstance of his failure to testify at that phase of trial. He

suggests that because the jury was also instructed at the penalty phase to disregard

the guilt phase instructions (see CALJIC No. 8.84.1), they must have disregarded

the instruction admonishing them not to draw an an adverse inference from his

failure to testify. The claim, however, has been rejected in many of this court’s

past decisions. (See, e.g., People v. Hardy (1992) 2 Cal.4th 86, 209; People v.

Morales (1989) 48 Cal.3d 527, 569-570.) We have no occasion to reconsider

those holdings here.

4. Admission of evidence of prior unadjudicated crimes

Defendant contends that permitting his jury to consider prior unadjudicated

crimes at the penalty phase violated his Fifth, Sixth, Eighth, and Fourteenth

Amendment rights. He acknowledges this court has repeatedly rejected the claim.

(See, e.g., People v. Bolin (1998) 18 Cal.4th 297, 335, and cases cited.) There is

no good cause to revisit it here.

5. CALJIC No. 8.85

Defendant argues CALJIC No. 8.85 is constitutionally flawed because it

fails to inform the jury that factors (d) (“extreme mental or emotional

disturbance”) and (h) (“mental disease or defect or the effects of intoxication”) can

only be utilized as mitigating factors, and because the “whether or not”


formulation in the instruction permits the jury to improperly consider those

mitigating factors, when unproved, as circumstances in aggravation. We have

consistently rejected the claim. (See, e.g., People v. Dennis (1998) 17 Cal.4th

468, 552; People v. Fairbank (1997) 16 Cal.4th 1223, 1255 (Fairbank).)

Defendant furnishes no persuasive reason to reconsider it here.

6. Failure to instruct that absence of mitigating factor not

In People v. Livaditas (1992) 2 Cal.4th 759 (Livaditis), this court held that

the trial court is not required to instruct the jury that the absence of a mitigating

factor is not itself aggravating unless “the court or parties make an improper

contrary suggestion.” (Id. at p. 784; see also People v. Williams, supra, 16 Cal.4th

at pp. 269-271.) We have already concluded, in rejecting defendant’s allegations

of penalty phase prosecutorial misconduct, that the prosecutor did not suggest or

argue that the absence of mitigating evidence could itself be considered

aggravating. Defendant’s argument to the contrary, and his claim that the

Livaditas exception should have been applied to his case, is therefore without


7. Factor (d) (extreme mental or emotional disturbance)

Defendant argues that the inclusion of factor (d) (“extreme mental or

emotional disturbance”) in the list of mitigating factors under section 190.3 (and in

CALJIC No. 8.85) unconstitutionally precludes the jury from considering mental

or emotional disturbance that is less than “extreme” in mitigation of penalty. We

long ago rejected the contention, explaining that factor (k), the so-called catchall

provision, is the statutory factor under which “ ‘consideration of nonextreme

mental or emotional conditions’ ” is clearly permitted. (Turner, supra, 8 Cal.4th

at p. 208; People v. Nicolaus (1991) 54 Cal.3d 551, 586.)


8. CALJIC No. 8.88 (penalty trial concluding instruction)

Defendant argues that CALJIC No. 8.88, the standard penalty phase

concluding instruction, should not have been given because it is “death oriented”

in that it fails to convey that one mitigating factor, standing alone, may be

sufficient to outweigh all other aggravating factors. We have previously rejected

this precise claim. (See People v. Berryman (1993) 6 Cal.4th 1048, 1099-1100.)

We have no grounds to reconsider it here.

9. Unanimous agreement on aggravating factors

Defendant argues his jury was constitutionally required to achieve

unanimity as to aggravating factors. We have rejected this claim as well. (People

v. Brown (2004) 33 Cal.4th 382, 402 (Brown).) Unanimity is required only as to

the appropriate penalty. (People v. Anderson (2001) 25 Cal.4th 543, 590.)

10. Appropriateness of death penalty beyond a reasonable doubt

Since neither capital defendants nor noncapital defendants have their

penalties fixed under the “beyond a reasonable doubt” standard of proof, the death

penalty does not in that respect violate principles of equal protection. (People v.

Marshall (1990) 50 Cal.3d 907, 936.) Defendant’s claim that the jury must be

required to find the death penalty appropriate beyond a reasonable doubt has been

repeatedly rejected. (People v. Stanley (1995) 10 Cal.4th 764, 842; People v.

Webb (1993) 6 Cal.4th 494, 536.)

Defendant nonetheless cites the high court’s recent decision in Ring v.

Arizona (2002) 536 U.S. 584 as requiring that California juries find the death

penalty appropriate beyond a reasonable doubt. Not so. In Ring the high court

held that Arizona’s death penalty scheme was unconstitutional “to the extent that it

allows a sentencing judge, sitting without a jury, to find an aggravating

circumstance necessary for imposition of the death penalty.” (Id. at p. 609.) In


People v. Prieto (2003) 30 Cal.4th 226, we explained that the rationale of Ring

does not apply to the penalty phase of a capital murder trial in California. (Id. at

p. 263.) That is because once a defendant has been convicted of first degree

murder and one or more special circumstances have been found true under

California’s death penalty statute, the statutory maximum penalty is already set at

death. (Ibid.) Thus, the high court’s holding in Apprendi v. New Jersey (2000)
530 U.S. 466—that any facts used to increase the maximum penalty must be found

by a jury beyond a reasonable doubt—does not apply and, accordingly, its

subsequent holding in Ring is likewise inapplicable. As we explained in Prieto,

“Because any finding of aggravating factors during the penalty phase does not

‘increase[] the penalty for a crime beyond the prescribed statutory maximum’

(Apprendi, supra, 530 U.S. at p. 490), Ring imposes no new constitutional

requirements on California’s penalty phase proceedings.” (Prieto, supra, 30

Cal.4th at p. 263; see also People v. Ward (2005) 36 Cal.4th 186, 221; People v.

Snow (2003) 30 Cal.4th 43, 126, fn. 32.)

11. Instruction on burden of proof/standard of proof for mitigating

Defendant contends the death penalty law is unconstitutional in that it fails

to require the jury to be instructed on certain burdens and standards of proof as to

aggravating and mitigating evidence. It is settled, however, that California’s death

penalty law is not unconstitutional for failing to impose a burden of proof—

whether beyond a reasonable doubt or by a preponderance of the evidence—as to

the existence of aggravating circumstances, the greater weight of aggravating

circumstances over mitigating circumstances, or the appropriateness of a death

sentence. (Brown, supra, 33 Cal.4th at p. 401; People v. Lenart (2004) 32 Cal.4th

1107, 1136; People v. Hillhouse (2002) 27 Cal.4th 469, 510-511; Fairbank, supra,

16 Cal.4th at p. 1255.)


12. Prosecutor’s “burden of persuasion” on appropriateness of death

Defendant argues that the failure to impose upon the prosecution the

“burden of persuasion” with respect to the imposition of the death penalty violated

his constitutional rights. We have repeatedly rejected the claim (see People v.

Kipp (1998) 18 Cal.4th 349, 381; People v. Hayes (1990) 52 Cal.3d 577, 643) and

have no occasion to reconsider it here.

13. Specific findings on aggravating and mitigating factors

Defendant claims California’s death penalty law is unconstitutional because

it does not require the jury to make specific findings indicating the aggravating

and mitigating factors relied upon in reaching a death verdict. This court has

continually rejected claims that the jury is constitutionally required to make a

written statement of findings and reasons for its death verdict. (People v. Gray

(2005) 37 Cal.4th 168, 236; People v. Cornwell (2005) 37 Cal.4th 50, 105; People

v. Morrison (2004) 34 Cal.4th 698, 730-731; see People v. Fauber (1992) 2

Cal.4th 792, 859.) We have no cause to reconsider these decisions here.

14. Ineffective assistance of counsel

Defendant argues the judgment must be reversed due to ineffective

assistance of counsel at the penalty phase. As already explained, in order to

establish ineffective assistance of counsel the defendant must demonstrate (1) that

his attorney’s performance fell below an objective standard of reasonableness; and

(2) that there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been more favorable to the

defendant. (Strickland, supra, 466 U.S. at pp. 688, 694.) A reasonable probability

is a probability sufficient to undermine confidence in the outcome. (Ibid.)


Defendant claims his counsel was ineffective in failing to request a proper

special circumstances instruction, and for failing to object to the version of

CALJIC No. 8.81.17 that was given (with disjunctive “or” mistakenly inserted

between paragraphs 1b and 2). For the same reasons that led us to reject the claim

of prejudicial special circumstance instructional error, we must reject this related

ineffective assistance of counsel claim. Defendant cannot demonstrate prejudice

from the instructional error complained of; indeed it was the specially proposed

defense instruction that cured any error.

Defendant’s claim that counsel was ineffective for failing to request an

intent to kill instruction under Carlos v. Superior Court, supra, 35 Cal.3d 131,

borders on the specious. Carlos was no longer the law at the time defendant

murdered Rubalcava. (See People v. Poggi (1988) 45 Cal.3d 306, 327.) Because

defendant was Rubalcava’s actual killer, no intent to kill needed to be shown.

Counsel cannot be found ineffective for failing to request an instruction that would

have mistated the law.

Defendant’s claim that counsel was ineffective for failing to request a re-

reading of CALJIC No. 2.60 at the penalty phase is likewise unavailing. The

instruction is of only questionable value to the defense since the instruction itself

draws attention to the fact that the defendant is not testifying at the same time that

it cautions the jury not to draw any adverse inferences from such failure to testify.

The failure to request the instruction at the penalty phase may therefore reflect a

reasoned tactical decision. (See People v. Morales, supra, 48 Cal.3d at p. 570.)

Similarly, counsel may well have had a reasonable tactical decision for

eliciting testimony from Officer Burnham regarding the racial content of

defendant’s writings and cell window coverings. It tended to support defendant’s

claim that the sheriff’s deputies had cause to harrass him, which in turn arguably

supports his claim that the fights and disciplinary actions that characterized his


relationship with the Alameda County Sheriff’s Department were not all his doing.

Last, counsel cannot be deemed to have fallen below the normal standards of

competency in failing to object to alleged instances of prosecutorial misconduct

that we have found were either nonexistent or nonprejudicial. In short, all of

defendant’s ineffective assistance of counsel claims lack merit.

15. Cumulative effect of penalty phase errors

Defendant contends the cumulative effect of the penalty phase errors

requires reversal of the death judgment. We have found no appreciable or

prejudicial error at the penalty phase. Accordingly, there is no cumulative effect

of penalty phase errors for consideration in this case. (People v. Johnson (1992)

3 Cal.4th 1183, 1255.)

16. Intercase/intracase proportionality review

Defendant asks us to undertake both intracase and intercase proportionality

review of his death sentence. The latter is not constitutionally required and this

court has consistently declined to undertake intercase proportionality review in

past automatic appeals. (See, e.g., People v. Frye (1998) 18 Cal.4th 894, 1029

(Frye); People v. Mincey (1992) 2 Cal.4th 408, 476.)

We do, however, undertake intracase proportionality review to determine

whether imposition of the death penalty in a given case is unconstitutionally

disproportionate to the offense and the defendant’s personal culpability. (People

v. Bacigalupo (1991) 1 Cal.4th 103, 151.) Accordingly, we have evaluated

“whether [defendant’s] capital sentence is so ‘grossly disproportionate’ to the

offenses as to constitute cruel or unusual punishment under article I, section 17 of

the California Constitution.” (People v. Arias (1996) 13 Cal.4th 92, 193.) A death

sentence is grossly disproportionate if it “shocks the conscience and offends

fundamental notions of human dignity.” (Livaditas, supra, 2 Cal.4th at p. 786.)


Defendant, 22 years of age and already with a long criminal history at the

time of this violent crime spree, brutally robbed and stabbed one man to death;

brutally robbed, stabbed and nearly killed another; robbed another victim in an

elevator by beating him unconscious with a hard, blunt object; robbed another

victim in a gas station by attacking and beating him in the rest room of the

business; and violently robbed three taxicab drivers while holding a knife to their

throats and threatening to kill them. We do not find defendant’s death sentence so

disproportionate to his offenses and to his personal culpability for those offenses

as to “shock[] the conscience” or “offend[] fundamental notions of human

dignity.” (Livaditas, supra, 2 Cal.4th at p. 786.)

17. Death penalty statute fails to guide, channel sentencing

Defendant argues the death penalty statutory sentencing factors embodied

in section 190.3 fail to adequately channel or limit the sentencer’s discretion in

choosing to impose death over life without the possibility of parole. We have

previously rejected the claim (see Hawkins, supra, 10 Cal.4th at p. 964) and have

no good cause to revisit it here.

18. Prosecutorial discretion to charge death penalty unconstitutional

Defendant argues that prosecutorial discretion to determine in which cases

special circumstances will be charged and the death penalty sought renders the

death penalty law unconstitutionally overbroad. We have repeatedly rejected the

claim (see, e.g., People v. Crittenden (1994) 9 Cal.4th 83, 152; People v. Ashmus

(1991) 54 Cal.3d 932, 980), concluding that local charging discretion does not

render the death penalty law unconstitutionally vague or arbitrary. (Brown, supra,

33 Cal.4th at p. 403.)


19. Absence of comparative review unconstitutional

Defendant argues that comparative review is required under the Fifth,

Sixth, Eighth, and Fourteenth Amendments so as “to prevent the ‘wanton’ and

‘capricious’ imposition of the death penalty.” We have repeatedly rejected the

argument (see, e.g., Frye, supra, 18 Cal.4th at p. 1029) and do so again here.

20. Failure to narrow death eligible class unconstitutional

Defendant argues that California’s 1978 death penalty statute

unconstitutionally fails to meaningfully narrow the class of death eligible

defendants. We have repeatedly rejected this argument as well, finding that

section 190.2 adequately narrows the class of murder for which the death penalty

may be imposed. (People v. Snow, supra, 30 Cal.4th at p. 125; Frye, supra, 18

Cal.4th at p. 1029.)

21. Failure of felony-murder special circumstance to narrow death
eligible class

Defendant argues the felony-murder special circumstance under which he

was rendered death eligible fails to meet minimal Eighth Amendment death

penalty standards by failing to narrow the class of death eligible defendants or

define a subclass of those more deserving of the death penalty than others. He

acknowledges that this court has repeatedly rejected the argument. (See, e.g.,

People v. Musselwhite (1998) 17 Cal.4th 1216, 1265-1266; People v. Marshall,

supra, 50 Cal.3d at pp. 945-946.) We do so again here.

22. Noncapital sentencing error

Defendant correctly argues he was erroneously sentenced under counts VI,

VII, and IX (robberies of Adelaja, Cheatham and Dollison) to three one-year full

consecutive terms for the deadly weapon enhancements, whereas, because he was

consecutively sentenced on more than two robbery convictions involving the use

of a deadly or dangerous weapon, and none of the robberies qualified as a serious


felony under section 667.5, the subordinate term for each subsequent robbery

conviction should have been limited to one-third the middle term of imprisonment

and one-third of the enhancement. (§ 1170.95, subd. (g).) Accordingly, defendant

asks this court to reduce his aggregate determinate sentence by two years, from

nine to seven years. Respondent concedes the sentencing error and agrees with the

proposed reduction. We shall therefore order the abstract of judgment corrected to

reflect the reduction of defendant’s aggregate determinate sentence by two years.


The abstract of judgment is ordered corrected to reflect the reduction of

defendant’s aggregate determinate sentence by two years. In all other respects the

judgment is affirmed.




* Associate Justice of the Court of Appeal, Fourth Appellate District, Division
Two, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.


See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Stanley

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted


Opinion No.
Date Filed: August 24, 2006

County: Alameda
Judge: Alfred A. Delucchi


Attorneys for Appellant:

Richard L. Rubin, under appointment by the Supreme Court, for Defendant and Appellant.


Attorneys for Respondent:

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Ronald A. Bass,
Assistant Attorney General, René A. Chacón and Juliet B. Haley, Deputy Attorneys General, for Plaintiff
and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Richard L. Rubin
4200 Park Blvd., #249
Oakland, CA 94601
(510) 339-9552

Juliet B. Haley
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102
(415) 703-5960

Opinion Information
Date:Docket Number:
Thu, 08/24/2006S022224

1The People (Respondent)
Represented by Attorney General - San Francisco Office
Juliet B. Haley, Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA

2Stanley, Darren Cornelius (Appellant)
Represented by Richard L. Rubin
Attorney at Law
4200 Park Boulevard, Suite 249
Oakland, CA

Aug 24 2006Opinion: Affirmed

Jul 29 1991Judgment of death
Aug 1 1991Filed certified copy of Judgment of Death Rendered
Aug 11 1994Compensation awarded counsel
Aug 11 1994Counsel appointment order filed
  Richard L. Rubin, Esq. Is Hereby appointed to represent Applt on His A.A., Including Any Related Habeas Corpus Proceedings.
Aug 31 1994Application for Extension of Time filed
  By Applt to request correction of Record.
Sep 2 1994Extension of Time application Granted
  To Applt To 11-3-94 To request Corr. of Record.
Nov 3 1994Application for Extension of Time filed
  By Applt to request correction of Record.
Nov 4 1994Extension of Time application Granted
  To Applt To 1-3-95 To request Corr. of Record.
Dec 15 1994Application for Extension of Time filed
  By Applt to request correction of Record.
Dec 22 1994Extension of Time application Granted
  To Applt To 3-6-95 To request Corr. of Record.
Mar 3 1995Received:
  Copy of Applt's request for correction, for Addit. Record, to Examine Sealed Transcripts, & to Settle Record (106 Pp.)
Mar 15 1995Compensation awarded counsel
Jun 14 1995Received:
  pro se letter from Stanley, dated 6-11-95. (confidential)
Jul 12 1995Confidential order filed
Jan 22 1996Change of Address filed for:
  Atty Richard L. Rubin.
May 24 1996Motion filed
  By Applt (Pro Per) (Confidential).
Jun 7 1996Filed:
  Confidential letter from Atty Rubin.
Jun 12 1996Motion filed
  By Applt for Order Compelling the Superior Ct. to correct the Record (8 Pp.)
Jun 19 1996Order filed:
Jun 21 1996Compensation awarded counsel
Jul 24 1996Order filed:
  Appellant's motion for order compelling the trial court to correct the record, filed June 12, 1996, is denied.
Nov 7 1996Compensation awarded counsel
Apr 10 1997Compensation awarded counsel
Jul 9 1997Record on appeal filed
  C-6 (1,734 Pp.) and R-77 (5,474 Pp.); and 131 Pp. of Sealed Documents.
Jul 9 1997Appellant's opening brief letter sent, due:
Jul 10 1997Compensation awarded counsel
Jul 18 1997Compensation awarded counsel
Aug 8 1997Application for Extension of Time filed
  To file Aob.
Aug 15 1997Extension of Time application Granted
  To 10-17-97 To file Aob.
Oct 10 1997Application for Extension of Time filed
  To file Aob.
Oct 14 1997Extension of Time application Granted
  To December 16,1997 To file AOB
Nov 24 1997Compensation awarded counsel
Dec 12 1997Application for Extension of Time filed
  To file Aob.
Dec 15 1997Extension of Time application Granted
  To 2-17-98 To file Aob.
Feb 9 1998Application for Extension of Time filed
  To file Aob.
Feb 11 1998Extension of Time application Granted
  To 4-20-98 To file Aob.
Mar 11 1998Compensation awarded counsel
Apr 17 1998Application for Extension of Time filed
  To file Aob.
Apr 21 1998Extension of Time application Granted
  To 6-19-98 To file Aob.
May 28 1998Application for Extension of Time filed
  By Applt to file AOB
Jun 8 1998Extension of Time application Granted
  To 7-20-98 To file AOB
Jul 9 1998Application for Extension of Time filed
  To file Aob.
Jul 17 1998Extension of Time application Granted
  To 9-18-98 To file Aob. no further Extensions of time Are Contemplated.
Sep 14 1998Application for Extension of Time filed
  To file Aob.
Sep 22 1998Extension of Time application Granted
  To 11-17-98 To file AOB no further Extensions of time will be Granted.
Nov 9 1998Application for Extension of Time filed
  To file Aob.
Nov 12 1998Order filed:
  In light of Atty Richard Rubin's representation that "A Complete Draft of the Opening brief (Less one issue)" Is with the Calif. Appellate Project For Review, Applt's request For an Ext. of time to file AOB Is extended to and Including 1-19-99. no further Extensions of time will be Granted.
Jan 15 1999Application for Extension of Time filed
  To file Aob.
Jan 27 1999Extension of Time application Granted
  To 2-18-99 To file Aob. no further Extensions of time will be Granted.
Feb 10 1999Application for Extension of Time filed
  To file Aob.
Feb 18 1999Extension of Time application Denied
Apr 19 1999Filed:
  By Applt request for Relief from Default
Apr 19 1999Filed:
  Application for Leave to file Oversized AOB
Apr 20 1999Order filed:
  The request of Appellant for Relief from Default and Application to file Applt's Oversized Opening brief Are Granted.
Apr 20 1999Appellant's opening brief filed
  (474 Pps)
Apr 22 1999Compensation awarded counsel
Apr 22 1999Motion filed
  By Resp to Unseal Marsden Record.
Apr 22 1999Filed:
  Confidential Declaration of Atty Richard Rubin.
May 3 1999Filed:
  Applt's Opposition to Resp's motion to Unseal Marsden Record
May 6 1999Application for Extension of Time filed
  To file Resp's brief.
May 10 1999Extension of Time application Granted
  To 7-19-99 To file Resp's brief.
May 10 1999Filed:
  Resp's reply to Objection to motion to Unseal Marsden Record.
Jun 11 1999Change of Address filed for:
  Attorney General - S.F. Office.
Jul 16 1999Application for Extension of Time filed
  To file Resp's brief.
Jul 20 1999Extension of Time application Granted
  To 9-17-99 To file Respondent's brief
Aug 18 1999Order filed:
  Resp's "motion to Unseal Marsden Record," filed 4/22/99, Is granted in Part as Follows: pages 11 Through 20, Inclusive, of the Transcript of in Camera Proceedings Conducted on 6/12/89, Are Ordered Unsealed, with A copy of said pages to be Furnished to Resp. in all other Respects, The motion Is denied.
Sep 13 1999Application for Extension of Time filed
  To file Resp's brief.
Sep 16 1999Extension of Time application Granted
  To 11/16/99 To file Resp's brief.
Nov 10 1999Application for Extension of Time filed
  To file Resp's brief.
Nov 17 1999Extension of Time application Granted
  To 1/18/2000 To file Resp's brief.
Nov 17 1999Compensation awarded counsel
Jan 12 2000Application for Extension of Time filed
  To file Resp's brief.
Jan 13 2000Extension of Time application Granted
  To 2/2/2000 To file Resp's brief.
Jan 28 2000Respondent's brief filed
  (211 Pps.)
Feb 17 2000Application for Extension of Time filed
  To file reply brief.
Feb 23 2000Extension of Time application Granted
  To 4/17/2000 To file reply brief.
Mar 15 2000Compensation awarded counsel
  Atty Rubin
Apr 13 2000Application for Extension of Time filed
  To file reply brief.
Apr 18 2000Extension of Time application Granted
  To 6/16/2000 To file reply brief.
Jun 13 2000Application for Extension of Time filed
  To file reply brief.
Jun 15 2000Extension of Time application Granted
  To 8/15/2000 To file reply brief.
Jun 29 2000Compensation awarded counsel
  Atty Rubin
Aug 1 2000Counsel's status report received (confidential)
Aug 7 2000Application for Extension of Time filed
  to file reply brief. (fourth request)
Aug 15 2000Extension of Time application Granted
  To 10/16/2000 to file reply brief.
Sep 29 2000Counsel's status report received (confidential)
Sep 29 2000Application for Extension of Time filed
  To file reply brief. (5th request)
Oct 5 2000Extension of Time application Granted
  To 12/15/2000 to applt to request corr. of the record. No further ext. of time are contemplated.
Dec 1 2000Counsel's status report received (confidential)
Dec 11 2000Application for Extension of Time filed
  To file reply brief. (6th request)
Dec 18 2000Extension of Time application Granted
  To 2/15/2001 to file reply brief. No further ext. of time will be granted.
Feb 2 2001Counsel's status report received (confidential)
Feb 21 2001Extension of Time application Denied
  To file reply brief.
Apr 6 2001Counsel's status report received (confidential)
May 3 2001Compensation awarded counsel
  Atty Rubin
Jun 5 2001Counsel's status report received (confidential)
Jul 23 2001Counsel's status report received (confidential)
  from atty Rubin.
Aug 3 2001Application for relief from default filed
  to file reply brief.
Aug 3 2001Compensation awarded counsel
  Atty Rubin
Aug 8 2001Filed:
  Applt.'s application for relief from default to file reply brief is granted.
Aug 8 2001Appellant's Reply Brief filed. (137 Pp.)
Sep 17 2001Counsel's status report received (confidential)
Oct 22 2001Filed:
  Counsel's declaration re habeas corpus investigation (confidential).
Nov 13 2001Counsel's status report received (confidential)
  from atty Rubin.
Dec 31 2001Counsel's status report received (confidential)
Mar 13 2002Counsel's status report received (confidential)
Apr 24 2002Related habeas corpus petition filed (concurrent)
  No. S106165.
May 21 2002Compensation awarded counsel
  Atty Rubin
Apr 9 2003Motion filed (confidential)
  appellant's pro se motion.
Jun 18 2003Motion denied (confidential)
Aug 28 2003Motion filed (confidential)
  appellant's pro se motion.
Sep 17 2003Motion denied (confidential)
  appellant's pro se motion filed on 8-28-2003.
Apr 14 2006Justice pro tempore assigned
  Justice Jeffrey King (4th Appellate Dist., Div. 2) (Corrigan, J. recused)
Apr 19 2006Oral argument letter sent
  advising that the case could be scheduled for oral argument as early as the late May calendar, to be held the week of May 30, 2006, in San Francisco. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument.
Apr 20 2006Filed letter from:
  attorney Richard L. Rubin, dated April 19, 2006, requesting oral argument be scheduled for the week of May 30 to June 2, 2006, in San Francisco.
Apr 24 2006Received:
  letter from DAG Juliet Haley, dated 4-24-2006, advising that she prefers that oral argument be scheduled for the week of May 30 to June 2, 2006, in San Francisco.
May 2 2006Case ordered on calendar
  June 2, 2006, at 1:30 p.m., in San Francisco
May 8 2006Filed letter from:
  attorney Richard L. Rubin, dated May 4, 2006, re focus issues for oral argument.
May 8 2006Argument rescheduled
  Case is now to be argued on May 30, 2006, at 1:00 p.m., in San Francisco
May 9 2006Filed letter from:
  Deputy Attorney General Juliet B. Haley, dated May 9, 2006, re focus issues for oral argument.
May 15 2006Received:
  letter from attorney Richard L. Rubin, dated May 12, 2006, re additional authorities for oral argument.
May 30 2006Cause argued and submitted
Jun 9 2006Compensation awarded counsel
  Atty Rubin
Aug 24 2006Opinion filed: Judgment affirmed in full
  The abstract of judgment is ordered corrected to reflect the reduction of defendant's aggregate determinate sentence by two years. Opinion by Baxter, J. -----joined by George, C.J., Kennard, Werdegar, Chin, Moreno & King (CA 4/2 assigned) JJ.
Aug 30 2006Received:
  letter from respondent, dated 8-30-2006, requesting "two corrections of two minor technical errors in the language of the Court's opinion regarding the modification of appellant's determinative sentence."
Sep 6 2006Rehearing petition filed
  by appellant. (6695 words; 31 pp.)
Sep 13 2006Time extended to consider modification or rehearing
  to November 22, 2006, or the date upon which rehearing is either granted or denied, whichever occurs first.
Oct 18 2006Rehearing denied
  Opinion modified. Petition for rehearing DENIED. George, C.J., and Baxter, J., were absent and did not participate. Corrigan, J., was recused and did not participate.
Oct 18 2006Opinion modified - no change in judgment
Oct 18 2006Remittitur issued (AA)
Oct 23 2006Received:
  acknowledgment of receipt of remittitur.

Apr 20 1999Appellant's opening brief filed
Jan 28 2000Respondent's brief filed
Aug 8 2001Appellant's Reply Brief filed. (137 Pp.)
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website