Filed 6/4/07
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S034704
v.
CHARLES STEVENS,
Alameda
County
Defendant and Appellant.
Super. Ct. No. 102962
A jury convicted Charles Stevens of four first degree murders and six
attempted murders.1 A lying-in-wait special circumstance was found true as to
one murder.2 A special circumstance allegation of multiple murder, and personal
firearm use allegations as to all counts, were also found true.3 The jury set the
punishment at death.
The case is before us on defendant’s automatic appeal.4 For the reasons that
follow, we affirm the judgment.
1 Penal Code sections 187, subdivision (a), former section 189, former
section 664. All further undesignated statutory references are to the Penal Code.
2 Section 190.2, former subdivision (a)(15), as enacted by initiative,
November 7, 1978.
3 Section 190.2, subdivision (a)(3); former sections 1203.06, 12022.5.
4 California Constitution, article VI, section 11, section 1239,
subdivision (b).
1
I. FACTUAL BACKGROUND
A. Guilt Phase
1. Prosecution Evidence
Defendant challenges the sufficiency of proof only as to one murder, one
attempted murder, and the lying-in-wait special circumstance. Thus, we discuss
the facts in summary, except as necessary. Between April 3 and July 27, 1989,
defendant engaged in a series of random attacks, by shooting at people on or near
Interstate 580 in Oakland. All but one of the victims were in cars when attacked.
Defendant succeeded in killing Leslie Ann Noyer, Lori Anne Rochon, Laquann
Sloan, and Raymond August. He attempted to kill Karen Alice Anderson, Janell
Lee, Julia Peters, Paul Fenn, Upendra de Silva, and Rodney Stokes. Defendant
was charged alone as to all the offenses, except Noyer’s murder. As to this
murder, Richard Clark was tried as a codefendant. The jury deadlocked on the
murder charge against Clark, and the trial court declared a mistrial.
Defendant was apprehended near the scene of his final murder. On July 27,
at 1:15 a.m., Rodney Stokes was driving home from work at 45 miles per hour on
Interstate 580. Defendant, driving a white Mazda, pulled up alongside him and
both vehicles slowed down. Stokes lowered his passenger window, and looked
over to see if he knew the driver. Defendant motioned as though trying to get
Stokes’s attention, and smiled at him. Stokes had never seen defendant before, but
thought perhaps he had a passenger who “was a friend from work getting a ride
and trying to slow me down for whatever reasons.” Stokes had often seen
coworkers on the freeway. Just as Stokes realized there was no passenger,
defendant shot at him.
Stokes lay down on the seat and turned off his headlights, losing control of
the vehicle briefly. At this point he was traveling approximately 30 miles per
hour. When Stokes regained control and looked up, the Mazda was in front of
2
him. Defendant “was sitting there waiting, basically, still coasting in front of me
and then [defendant] fired” twice more. Stokes was approximately three-quarters
of a mile away from the 35th Avenue overpass. Defendant pulled away, and
Stokes began flicking his lights on and off to attract police attention. He also sped
up to catch defendant.
As he drove, Stokes saw defendant slow down and pull alongside Raymond
August’s car. They were the only two vehicles in front of him on the road. Stokes
testified defendant “g[o]t the attention of the other driver” because both sets of
brake lights came on. Stokes lost sight of the cars for a brief moment, which he
characterized as “the snap of a finger.” After rounding a slight turn, Stokes saw
the cars again, and heard at least two gunshots. Defendant rapidly drove to the
35th Avenue off-ramp, left the freeway, and drove onto another on-ramp that
entered the freeway going the opposite direction.
Stokes drove to August’s car, which had crashed into a pillar under the 35th
Avenue overpass. He saw August and “[a]n awful lot of blood.” He looked
across the freeway, saw the Mazda parked on the shoulder of the on-ramp, and
called 911.
When the first police officer arrived, defendant was still parked on the on-
ramp, looking “at the scene underneath the freeway.” When the officer ordered
him out of the vehicle, defendant appeared startled, and began to drive away. He
then got out of the car with his hands in the air, walked backwards, and fled on
foot toward a retaining wall. The officer grabbed defendant at the wall. As he did
so, the officer heard a heavy metallic object hit the ground; it was a loaded .357
magnum Desert Eagle semiautomatic pistol. Defendant was carrying a loaded
magazine and a loose bullet. Stokes subsequently arrived and identified
defendant.
3
Defendant told police he had possessed the weapon for the last three to four
months, since “[a]bout . . . March.” Ballistics evidence indicated defendant’s
weapon was either a match to or consistent with the gun used in all of the crimes
except for the attempted murder of Stokes. The piece of lead slug recovered from
Stokes’ vehicle was insufficient to make any comparison.
A search of defendant’s room revealed a box and an operator’s manual for
the weapon, a canvas gun case, gun cleaning equipment, a .357 magnum cartridge
and magazine, trays of bullets, and practice targets. He also had a collection of
Oakland newspapers containing articles about the shootings, and an envelope with
handwritten references to what appeared to be various Penal and Vehicle Code
sections including those regarding murder, assault, vehicle theft, and weapons
offenses.5 Defendant’s palm print was found on victim Noyer’s vehicle.
During an unrecorded interview, police asked defendant what type of person
would commit random shootings on a freeway. He replied the “only reason would
be mental, or loneliness, some lonely mother fucker.” When asked how such a
person would be caught, he said, “The guy would get caught if somebody told on
him or if he pulled over like I did.”
2. Defense Evidence
Defendant presented evidence only as to the murder of 16-year-old Laquann
Sloan, a conviction not challenged on appeal. Sloan was shot in the head as he
walked down the street. Three witnesses testified about events before and after the
shooting, but none witnessed the shooting itself.
5 The references included: “245(A, 2)-10+” (punishment for assault with a
firearm); “12020-20+” (prohibited weapons); “187-4” (murder) and “10851-32+”
(vehicle theft).
4
Codefendant Clark testified regarding the Noyer and Rochon murders. Clark
had given police various accounts of the Noyer murder. In his last statement, he
claimed he had shot Noyer under duress because defendant threatened to shoot
him. At trial, Clark denied being present at the murder scene, and said he made up
the story using details from the police.
As to the Rochon murder, Clark testified that early on the morning of July 6,
he and defendant were in a stolen car. As defendant drove, he started rocking
back and forth, and said in an urgent tone, “ ‘Man, I got to shoot somebody.’ ”
Defendant pulled alongside a car, but Clark asked why he was going to shoot this
person. Defendant said, “Okay. I’m not going to shoot this guy. I’ll shoot
somebody white.” Defendant subsequently pulled next to Lori Rochon’s car, and
rolled down his side window, telling Clark he thought Rochon was a “white
dude,” and fired at her. Clark’s sister testified that in July 1989, Clark asked her
to tell him when the news came on because defendant had shot someone on the
freeway. The news report stated that the woman’s name was “Lori,” and she was
shot on Interstate 580. When Clark saw a July 18 article about the assaults on
Fenn, Peters, and de Silva, he called defendant and asked if he had done the
shooting. Defendant said, “ ‘Man, don’t say that over the phone.’ ”
B. Penalty Phase
1. Prosecution evidence
The parties stipulated that defendant was convicted in 1989 of three counts of
felony auto theft. (Former Veh. Code, § 10851.)
Randall Shumpert described an incident in June 1987. At 10:00 p.m.,
defendant and a passenger drove by the BART station where Shumpert was
standing. The passenger yelled something at Shumpert, and angry words were
exchanged. Defendant drove off, but returned a few minutes later with his
5
headlights off. Defendant leaned from the car window, shot at Shumpert, and
drove away.
On November 30, 1988, Sheriff’s Deputy William Borland and Sergeant
Steve Wilson responded to a disturbance in the county jail mess hall. Defendant
threw a carton of milk at Wilson, swore, and urged other inmates to throw objects
at the officers. Defendant picked up his metal tray as though to throw that, but
complied when ordered to put it down.
On March 18, 1993 Sherriff’s Deputy Timothy Durbin was transporting
defendant from jail to court during the guilt phase of this case. He heard
defendant tell another inmate in hushed tones, “You know that fuckin’ Clark is
fucking me over. He snitched me off five times now. If I get the chance, I’m
going to do him . . . . I’m going to kill that mother fucker, even if I did make him
do some of that shit, he’s trying to fuck me over.”
Eight witnesses provided victim impact testimony regarding the
accomplishments of their loved ones, and the effect of the murders on their own
lives.
2. Defense evidence
Psychiatrist Harry Kormos testified about defendant’s childhood and the
results of psychological testing. Dr. Kormos met with defendant approximately 10
times for three hours each over a period of four to five months. He concluded
defendant had an unspecified personality disorder with schizoid and borderline
personality traits. Dr. Kormos had diagnosed several dozen people with such a
disorder, but could not recall any of them committing murder. Although
defendant manifested this disorder, he suffered from no mental illness. Physical
and psychological testing revealed no organic brain illness, tumors, or
malformations. Defendant’s mother stopped drinking about five years before
6
defendant was born, and defendant did not have fetal alcohol syndrome.
Defendant’s intelligence quotient of 80 to 90 revealed below-average intelligence,
but he was not mentally retarded. Defendant was of mixed racial heritage: his
mother was Native American, and his father Caucasian and Black. While
defendant said “that he never had any difficulty” along these lines, Dr. Kormos
nevertheless opined that “[t]his kind of racial confusion makes it even harder than
it is already in our society to deal with racial issues.”
Defendant was well cared for by his parents in Oakland until he was 11 or 12
years old. Defendant’s mother was a devout Jehovah’s Witness, and defendant
was active in the church. About age 12, defendant moved with his mother and
older sister to an Indian reservation. Defendant suffered several seizures, and an
EEG showed abnormality. In a 1993 EEG, however, there were no abnormalities.
His mother resumed drinking, stopped practicing her religion, and became both
verbally and physically violent. She was charged with child abuse for beating
defendant’s older sister. Defendant reported that in two incidents a few days
apart, he attempted suicide to get his mother’s attention. There were no medical
reports about the suicides, and he bore no scars, although he said he cut his wrists
in the second attempt.
When defendant was 13, the family was reunited in Oakland. Defendant’s
mother was arrested on several occasions for drunk driving, and spent a year in
jail. At one point she was committed to Highland Hospital for threatening to
throw defendant out a window and kill his sister. She drank until her death in
March 1986.
Defendant’s brother was convicted of murder in 1978. Dr. Kormos said the
brother, 17 years older than defendant, was only a distant figure to defendant, and
he discerned no relevant “emotional” material in these factors.
7
Defendant was twice suspended for disruptive behavior in middle school. He
had to repeat the ninth grade for academic reasons, but won several trophies in
bike racing. He tried marijuana when he was 12, but did not use drugs. He did,
however, sell cocaine in high school to get money for clothes and jewelry. He was
fired from a pawnshop job for stealing a gun. He cared for his father, who was
working full-time, which Dr. Kormos opined demonstrated defendant was capable
of altruistic action.
Dr. Kormos was not “able to come up with a clear diagnosis as to why”
defendant murdered four people and attempted to kill six others. Defendant never
denied committing the capital crimes, but reported he could not remember
committing most of them. He did have a patchy recollection of the August killing.
Dr. Kormos opined that at some level defendant wanted to be caught. He found
no indication that defendant derived pleasure or satisfaction from the killings.
Jerry Enomoto, a former Director of the Department of Corrections, testified
defendant would be no more than a nuisance inmate in prison. Three deputy
sheriffs testified regarding defendant’s good conduct while in jail, although one
noted defendant had lost a job assignment for misconduct.
II. DISCUSSION
A. Pretrial
Alleged Wheeler Error
Defendant brought four Wheeler motions asserting the prosecutor was
improperly exercising his peremptory challenges to excuse African-Americans.
(People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).) All four motions were
denied. Here, defendant challenges only the ruling on the first motion. The trial
court expressly found a prima facie case of discrimination in connection with this
motion, and asked the prosecutor to state reasons for his challenges. The jury as
sworn contained one Black juror and one Black alternate.
8
In Wheeler, supra, 22 Cal.3d 258, we held “ ‘that the use of peremptory
challenges by a prosecutor to strike prospective jurors on the basis of group
membership violates the right of a criminal defendant to trial by a jury drawn from
a representative cross-section of the community under article I, section 16, of the
California Constitution. Subsequently, in Batson v. Kentucky (1986) 476 U.S. 79,
84-89 [Batson] . . . the United States Supreme Court held that such a practice
violates, inter alia, the defendant’s right to equal protection of the laws under the
Fourteenth Amendment to the United States Constitution.’ ” (People v. Catlin
(2001) 26 Cal.4th 81, 116 (Catlin).) “[T]he ultimate burden of persuasion
regarding racial motivation rests with, and never shifts from, the opponent of the
strike.” (Purkett v. Elem (1995) 514 U.S. 765, 768; Batson, at p. 93.)
Relying on People v. Silva (2001) 25 Cal.4th 345, defendant asserts the
prosecutor’s reasons for challenging Prospective Jurors L.F., H.H., and J.C., all of
whom were involved in the first Wheeler motion, were not supported by the
record, and that the trial court erred in failing to question the prosecutor about
these discrepancies. In Silva, we observed that a trial judge is required to make a
“sincere and reasoned attempt to evaluate each stated reason as applied to each
challenged juror. [Citations.] When the prosecutor’s stated reasons are both
inherently plausible and supported by the record, the trial court need not question
the prosecutor or make detailed findings. But when the prosecutor’s stated
reasons are either unsupported by the record, inherently implausible, or both, more
is required of the trial court than a global finding that the reasons appear
sufficient.” (Silva, at p. 386.)
The record reveals that defendant’s claim lacks merit. Regarding all three
prospective jurors, the prosecutor stated, “The basis for the challenges are the
same as for all of the people that I have challenged, and that is on the basis that the
People didn’t feel they would get a fair trial with those jurors . . . . [W]ith regard
9
to all [three] of the jurors, I indicated in one way or another at the very least an
ambivalence and the lack of commitment, at least in my mind, of their willingness
to impose the death penalty. That there was a vacillation that they reflected and a
situation that I felt I could not take the chance of them hanging this should we get
to the point of . . . a penalty phase. . . . [I]t was not just merely the words that they
spoke or what they had written on the questionnaire, but also the manner in which
they responded to my questions, and specifically, their ability to carry it out, and
reading not only what they said, but also how they responded physically to the
question itself.”
The prosecutor also noted “the bulk of the victims in my case are in fact of
Afro-American [descent], and I would like to have that represented on the jury. It
is, just in my view and my experience, that I didn’t feel that these people had the
personal fortitude to in fact impose a death penalty verdict, if it should get
there . . . I would also like to have that point of view reflected on this jury but,
unfortunately, these jurors, I don’t believe, have the ability, the internal fortitude
to say to Mr. Stevens ‘death’ if we should get there.”
As to Prospective Juror L.F. specifically, the prosecutor stated he “reflected
an ambivalence” regarding the death penalty, while in his questionnaire “he
indicated he was moderately for it. When it came down to whether or not he
would vote for it if the issue were on the ballot, he said, ‘I honestly don’t know.’
And in talking with him, he said, ‘Well, I’ll follow the law with regard to whatever
the Judge tells me.’ And when you put it in terms that, well, the law doesn’t
mandate that you have to impose the death penalty, that’s something that’s up to
you. He indicated, again, just an ambivalence in his ability and showed a lack of
commitment in the ability to impose the death penalty.”
Defendant asserts that Prospective Juror L.F. did not say he honestly did not
know when asked if he would vote for the death penalty if an advisory measure
10
were on the ballot. During voir dire, L.F. said he would vote “Yes,” because the
penalty was a “deterrent,” and on his juror questionnaire, L.F. said he was
“[m]oderately in favor” of the death penalty. However, when asked on the
questionnaire, “If the issue of whether California should have a death penalty law
was to be on the ballot in this coming election, how would you vote,” he checked,
“[n]ot sure,” and wrote, “I honestly do not know.” The record supports the
prosecutor’s stated reason.
Defendant also points out that L.F. said he could supply the twelfth vote to
make a death verdict unanimous “if it was called for.” L.F. also said, “At one time
I thought that way, I really . . . didn’t like the death penalty. But I find I can
follow—if the law says that’s what it is, I can follow the law. I’d do what the law
says and if it—if—if the law says this man gets the death penalty, this man
doesn’t, I could do that.” These various responses do not undermine the
prosecutor’s stated reason.
As to Prospective Juror H.H., the prosecutor stated, “he kept on bouncing
around, at least in terms of a certain amount of ambivalence that he reflected,
always falling back, ‘Can you do it?’ And the answer is, ‘Well, I’ll take a look at
all the information. I need all the information before I could make a decision.’ At
one level that may be understandable. At another level . . . ., it appeared to be
more of an ambivalence.” The prosecutor also noted, “As I was talking with him,
I could smell a very strong odor of alcohol on him, and he admits in his
questionnaire that he is an alcoholic and that alcohol has gotten him into trouble.
And I’m always concerned about someone who’s drinking in the middle of the
day . . . and who admits that he’s got an alcohol problem and he’s still drinking.”
H.H. admitted a conviction for driving under the influence a year and a half
earlier.
11
Defendant asserts that the prosecutor “misrepresented” Prospective Juror
H.H. “as falling back on needing all the evidence, [when he] in fact said that only
in the context of affirming that he could and would vote for death if the evidence
led him there.”
On his questionnaire, Prospective Juror H.H. stated he was “neutral”
regarding the penalty, and noted, “I feel that it is ineffective due to [the] fact . . . it
can be delayed any number of times by any one convicted. Also it has not shown
to be a [deterrent] for anyone committing crimes.” On voir dire, he repeatedly
asserted he would not make a decision without “all” the “information,” “facts,” or
“evidence.” In response to the court’s question regarding whether he would be
open to imposing either penalty, he said, “I’m the type of person, you know, that I
cannot pass whatever type of judgment, whatever, or anything without having all
the facts. I prefer to have all the facts before I make any kind of judgment on
anything. If you don’t have the facts, you tend to make mistakes, and I’m one
who tends to try to have all the facts before me before I make any kind of
decision.” In response to the prosecutor’s question as to whether he had thought
about whether he could vote for a death penalty verdict, H.H. said, “Not really
because, you know, like as I stated before, you have to take into consideration all
of the information that’s going to be presented, I mean, you know, you just cannot
preformulate any kind of idea of what’s going to happen without the information
being available and being presented. I mean, you know, I’ll put it like this, I’m an
information junkie, that’s one thing I live for is information. . . . I don’t tend to
pass any kind of judgment or anything like this without taking into consideration
all of the information that’s pertaining to what I’m trying to find out . . . .” In sum,
the record supports the prosecutor’s stated reasons.
Regarding Prospective Juror J.C., the prosecutor said she “was in a like
situation of indicating, ‘I think I could do it,’ but reflecting, again, a lack of
12
conviction in her ability to do it, which gave me a great deal of concern as to
whether I could afford to take the chance.” Defendant contends “this ignored her
many answers affirmatively supporting her ability and willingness to impose the
death penalty.”
On her questionnaire, Prospective Juror J.C. stated she was “neutral” on the
death penalty, and said, “I have not made up my mind on the death penalty[.] It
would depend upon the extent of the crime[.] I cannot answer [until] I had all the
facts.” She was “[n]ot sure” how she would vote “[i]f the issue of whether
California should have a death penalty law was to be on the ballot in this coming
election,” because “[n]ot all crime deserve[s] [the] death penalty.”
On voir dire, when asked how she would vote if the death penalty were on
the ballot, J.C. said, “I think I would vote for it. . . . I say it depends on the crime
and—it depends. The penalty should fit the crime, depending on the
circumstances of what happened. I think at this time the way I feel right now I
think I would vote for it. But I would have to wait until it actually happened
before I make up my mind finally.” When the prosecutor described how
defendant would be executed, and then asked, “Now, could you cast that vote and
sign that jury verdict form,” Prospective Juror J.C. responded, “Since you put it
like that, it’s kind of hard. . . . It’s hard, yeah.” Thus, while J.C. made other
statements that indicated she could vote for the death penalty, the record supports
the prosecutor’s statement that Prospective Juror J.C. was ambivalent.
Defendant further asserts that the prosecutor’s pretext is demonstrated by
comparing the voir dire answers of Prospective Jurors H.H., L.F., and J.C. with
those of seated Jurors D.M., J.C., M.F., and V.W. Defendant did not perform a
comparative juror analysis in the trial court, and acknowledges that we have
disapproved of such comparative analysis for the first time on appeal. (People v.
Johnson (1989) 47 Cal.3d 1194, 1220-1221.) To the extent Johnson may have
13
been called into question by Miller-El v. Dretke (2005) 545 U.S. 231, we perform
a comparative juror analysis to facilitate this review. (Compare with People v.
Bell (2007) 40 Cal.4th 582, 600-601 [Miller-El does not require comparative juror
review in a first stage Wheeler case, or when no prima facie case is found].) We
do not hereby express an opinion that such a comparison is compelled. The record
fails to demonstrate purposeful discrimination.
In comparison to Prospective Juror H.H., seated Jurors J.C., M.F., and V.W.
had not suffered any prior convictions. Juror D.M. had suffered a conviction for
driving under the influence approximately eight years earlier. However, H.H. had
a substantially more recent conviction, and smelled of alcohol during voir dire.
Nor do these seated jurors demonstrate such a striking similarity in
ambivalence regarding the death penalty that a finding of pretext is warranted.
(See People v. Schmeck (2005) 37 Cal.4th 240, 271, 273 (Schmeck).) On her
questionnaire, Juror V.W. “[a]greed with the decision” to remove Chief Justice
Bird. She voted for, and was moderately in favor of, the death penalty. If the
issue of whether California should have a death penalty was on the ballot, she
would vote for it since, “[s]ome crimes really seem to justify the penalty.”
On voir dire, when asked whether she could be in the situation of ending
another person’s life, V.W. answered, “You know, at this point, I guess so. I
really don’t know.” However, when in his next question the prosecutor described
the execution process and asked her if she could cast the twelfth vote for a death
penalty verdict, Juror V.W. said, “Yes.”
On her questionnaire, Juror D.M. stated, “I believe the death penalty is
justified in certain cases.” She was moderately in favor of the death penalty. She
would vote for it if it were on the ballot because, “I think there are some crimes
[heinous] enough to warrant the death penalty.”
14
On voir dire, when asked by the prosecutor whether she could envision
herself voting for the death penalty in this type of case, D.M. said in part, “to me,
murder is a heinous crime so that is about the only way I can answer that for you.
I would think, depending on the circumstances and depending on the instructions
that we’ve been given as to what would make that penalty phase come into effect,
that I am—I would be prepared to make that vote . . . if the aggravating . . .
circumstances, warranted that the death penalty be in this case, then I could vote
for it if I felt that way.” In response to the prosecutor’s question about casting the
twelfth vote for a death penalty verdict, D.M. said, “If I felt it were appropriate
based on what I said before, I would have to.” When asked if she would give
serious consideration to defendant’s mitigating evidence and the penalty of life
imprisonment without the possibility of parole, she said, “I think I would have to
be so convinced that . . . the death penalty was the only thing that I could vote for
before I voted for it. In other words, I think I would try to give every possibility to
not asking for the death penalty, unless I just could not, in my own mind, think
that anything less would be appropriate. . . . I would weigh every possibility of the
death penalty not being the verdict, unless I felt very convinced that that was the
only appropriate verdict that I would have to vote for it, so yes, I think I would
keep an open mind to anything that might sway [me] in that direction.” In
response to defense counsel questioning, she said, “I believe that there are certain
cases for which the death penalty is appropriate. I am not so sure I can say
without hearing evidence that this case falls into that category.” These responses
indicate an appreciation that voting for a death verdict is a grave decision, not
ambivalence regarding the death penalty.
Juror J.C. stated on his questionnaire, “I believe that the death penalty is
needed because it gives criminals (persons) something to think about when they
commit the crimes and kill somebody either by firearms or bodily harm.” He was
15
neutral on the death penalty, and not sure if he would vote for it on the ballot. “I
would read the issue first and come to a conclusion before I voted on this issue. I
want to [find] out the good and bad points of this issue.”
On voir dire, the court asked, “could you cast a vote as a juror for either
of . . . these penalties if you felt it was the appropriate penalty . . .?” Juror J.C.
answered “Yes, sir.” In response to the prosecution question regarding “[s]hould
we have a death penalty in the state of California,” Juror J.C. said “Yes, we should
if . . . the crime is serious enough.” Unlike Prospective Juror J.C., when the
prosecutor described the execution process and asked, “Knowing those
consequences, could you cast that twelfth vote,” Juror J.C. answered, “I would—I
believe that if in my truthful mind that everything points to the death penalty,
that’s the way I would go.”
Juror M.F. wrote on her questionnaire, “I feel that the death penalty should
be looked at on a case-by-case basis.” She was neutral on the death penalty. She
was not sure if she would vote for it on the ballot because “I am not entirely
convinced that the death penalty deters criminals.”
On voir dire, when the court asked if she could cast a vote for either penalty,
M.F. said “Yes.” In response to the prosecutor’s question regarding casting the
twelfth vote for a death penalty verdict, she said, “Yes, sir, I could.”
In sum, nothing in these jurors’ questionnaire or voir dire answers indicates
such striking similarity to the challenged prospective jurors’ responses that pretext
is evident. Moreover, as with any situation involving alleged bias, we defer to the
trial court’s credibility determination. (Batson, supra, 476 U.S. at p. 98, fn. 21;
Schmeck, supra, 37 Cal.4th at p. 275.) The best evidence of whether a race-
neutral reason should be believed is often “the demeanor of the attorney who
exercises the challenge,” and “evaluation of the prosecutor’s state of mind based
on demeanor and credibility lies ‘peculiarly within a trial judge’s province.’ ”
16
(Hernandez v. New York (1991) 500 U.S. 352, 365.) In addition, the prosecutor
expressly stated he was basing his challenges not only on the prospective jurors’
words, but their nonverbal behavior as well. The trial court could evaluate the
nonverbal conduct on which the prosecutor relied. We cannot. Indeed, in denying
the Wheeler motion, the trial court noted it was relying not only on “an analysis of
the proferred reasons,” but also “the court’s own observations.” Defendant has
failed to demonstrate purposeful racial discrimination against prospective jurors.
B. Guilt Phase
1. Alleged Crawford Error
Codefendant Clark’s statement to police was redacted to delete any reference
to another person. Defendant contends that admission of the statement was
erroneous under Crawford v. Washington (2004) 541 U.S. 36 (Crawford). In
Crawford, at pages 53-54, 68, and Davis v. Washington (2006) ___ U.S. __
[126 S.Ct. 2266, 2276], the high court held that admission of testimonial hearsay
statements against a defendant violates the Sixth Amendment confrontation clause
when the declarant is not, and has not previously been, subject to cross-
examination.
This claim is waived. Defendant’s counsel expressly stated his satisfaction
with the redacted statement because there was “no reference to [defendant]
directly or indirectly.” He withdrew his Aranda/Bruton6 objection and motion to
sever based on the redacted statement.
6 In People v. Aranda (1965) 63 Cal.2d 518, this court “adopted ‘judicially
declared rules of practice’ for all cases in which the prosecution proposed to
introduce in evidence an extrajudicial statement of one defendant that implicated a
codefendant.” (People v. Fletcher (1996) 13 Cal.4th 451, 460, see also p. 465.) In
Bruton, the high court held that “because jurors cannot be expected to ignore one
defendant’s confession that is ‘powerfully incriminating’ as to a second defendant
(footnote continued on next page)
17
Moreover, the claim lacks merit. Crawford addressed the introduction of
testimonial hearsay statements against a defendant. Clark’s redacted statement
contained no evidence against defendant. (Crawford, supra, 541 U.S. at pp. 39-
40, 68.) Thus, it cannot implicate the confrontation clause. (Richardson v. Marsh
(1987) 481 U.S. 200, 211; People v. Mitcham (1992) 1 Cal.4th 1027, 1046-1047.)
The same redaction that “prevents Bruton error also serves to prevent Crawford
error.” (United States v. Chen (2d Cir. 2004) 393 F.3d 139, 150.)
Defendant further asserts that because Clark’s redacted statement was
admitted, Clark testified at trial. Had Clark not testified, defendant argues, the
jury would not have heard incriminating evidence about defendant’s involvement
in the Noyer and Rochon murders, and there would have been no modus operandi
regarding freeway murders. The Sixth Amendment confrontation clause does not
bar hearsay statements of a witness who testifies at trial and is subject to cross-
examination. (Crawford, supra, 541 U.S. at p. 59, fn. 9.) Here, defendant
received what the confrontation clause requires: a full opportunity to confront and
cross-examine Clark.
2. Challenge to Denial of Section 1118.1 Motion
Defendant contends the trial court erroneously denied his motion to dismiss
the counts regarding the murder of Lori Rochon, and the attempted murder of Paul
Fenn.7 (§ 1118.1.)8 As for Rochon’s murder, defendant argues that when the
(footnote continued from previous page)
when determining the latter’s guilt, admission of such a confession at a joint trial
generally violates the confrontation rights of the nondeclarant. (Bruton v. United
States (1968) 391 U.S. 123, 126–137.)” (Fletcher, at p. 455.)
7 Defendant does not challenge the sufficiency of the evidence supporting
his conviction for the attempted murder of Julia Peters, who was in the van with
Fenn.
18
motion was argued, Clark had not testified. Hence, the evidence was insufficient
as to the perpetrator’s identity.
“The standard applied by a trial court in ruling upon a motion for judgment
of acquittal pursuant to section 1118.1 is the same as the standard applied by an
appellate court in reviewing the sufficiency of the evidence to support a
conviction, that is, ‘whether from the evidence, including all reasonable inferences
to be drawn therefrom, there is any substantial evidence of the existence of each
element of the offense charged.’ ” (People v. Crittenden (1994) 9 Cal.4th 83, 139,
fn. 13.) “The purpose of a motion under section 1118.1 is to weed out as soon as
possible those few instances in which the prosecution fails to make even a prima
facie case.” (People v. Shirley (1982) 31 Cal.3d 18, 70; People v. Ainsworth
(1988) 45 Cal.3d 984, 1022.) The question “is simply whether the prosecution has
presented sufficient evidence to present the matter to the jury for its
determination.” (Ainsworth, at p. 1024.) The sufficiency of the evidence is tested
at the point the motion is made. (§ 1118.1; Shirley, at pp. 70-71; see People v.
Cole (2004) 33 Cal.4th 1158, 1213.) The question is one of law, subject to
independent review. (Cole, at p. 1213.)
The prosecution’s evidence showed Rochon was shot while driving on
Interstate 580 on July 6, 1989. Between April 3 and July 16, eight people,
including Rochon and Fenn, were shot at within a few miles of each other on or
(footnote continued from previous page)
8 Section 1118.1 provides in relevant part: “In a case tried before a jury,
the court on motion of the defendant or on its own motion, at the close of the
evidence on either side and before the case is submitted to the jury for decision,
shall order the entry of a judgment of acquittal of one or more of the offenses
charged in the accusatory pleading if the evidence then before the court is
insufficient to sustain a conviction of such offense or offenses on appeal.”
19
near that freeway. Rochon was also shot during the early morning; all of the nine
other assaults in this case occurred between approximately midnight and 3:00 a.m.
The bullet removed from Rochon’s body had polygonal markings and was fired
from a Desert Eagle pistol, a fairly unusual weapon. The Desert Eagle is the only
.357 magnum pistol with polygonal rifling. Before the Noyer murder on April 3,
Lansing Lee, an Oakland Police Department criminalist and firearms identification
expert, had never seen a .357 magnum slug with polygonal rifling. After August’s
murder on July 27, Lee never again saw another such slug. Defendant was
arrested in possession of a Desert Eagle, and admitted having it in his possession
for several months. Defendant’s Desert Eagle was used to kill Noyer, Sloan, and
August, and to shoot at Anderson, Lee, and de Silva. A newspaper article
regarding the Rochon murder was found in defendant’s bedroom. This evidence
supports a prima facie case that defendant was the perpetrator.
Defendant further contends that whether considered at the time of the motion
to dismiss or following the defense case, there is insufficient evidence connecting
him to the attempted murder of Paul Fenn. Not so. Fenn was shot at while driving
on Interstate 580 early on the morning of July 16. Copper bullet jackets found in
his van were from a Desert Eagle. Minutes after the assault on Fenn, and only
several hundred yards away, de Silva was wounded by a shot from defendant’s
Desert Eagle. When Clark saw a newspaper article about the assaults on Fenn and
de Silva, he called defendant and asked if he had done the shooting. Defendant
said, “ ‘Man, don’t say that over the phone.’ ” An article about the Fenn and de
Silva assaults was found in defendant’s bedroom. The evidence was sufficient
regarding defendant’s identity as Fenn’s attempted murderer.
20
3. Sufficiency of Evidence of Lying-in-wait Special Circumstance
Defendant contends there was insufficient evidence of an adequate period of
watching and waiting to support the lying-in-wait special-circumstance finding for
Raymond August’s murder.9 We conclude the evidence was sufficient.
A sufficiency of evidence challenge to a special circumstance finding is
reviewed under the same test applied to a conviction. (People v. Mayfield (1997)
14 Cal.4th 668, 790.) Reviewed in the light most favorable to the judgment, the
record must contain reasonable and credible evidence of solid value, “such that a
reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.)
The prosecution relied solely on a theory of premeditation for the underlying
murder of August. The jury convicted defendant of first degree murder, and he
does not challenge that conclusion. Evidence of lying in wait was provided
primarily by Rodney Stokes, at whom defendant shot just before murdering
August. (See ante, pp. 2-3.)
At the time of the capital crimes, the elements of the lying-in-wait special
circumstance required an intentional killing, committed under circumstances that
included a physical concealment or concealment of purpose; a substantial period
of watching and waiting for an opportune time to act; and, immediately thereafter,
a surprise attack on an unsuspecting victim from a position of advantage.10
9 The jury found not true the lying-in-wait special-circumstance allegation
regarding Noyer’s murder.
10 Here, the jury was instructed that in order to find the special
circumstance true, defendant must have intentionally killed the victim and done so
while lying in wait. Lying in wait was defined as “waiting and watching for an
opportune time to act, together with a concealment by ambush or by some other
secret design to take the other person by surprise even though the victim is aware
of the murderer’s presence. The lying in wait need not continue for any particular
period of time provided that its duration is such as to show a state of mind
(footnote continued on next page)
21
(Section 190.2, former subd. (a)(15); People v. Morales (1989) 48 Cal.3d 527,
554-555, 557 (Morales).) The purpose of the watching and waiting element is to
distinguish those cases in which a defendant acts insidiously from those in which
he acts out of rash impulse. (See People v. Moon (2005) 37 Cal.4th 1, 24 (Moon).)
This period need not continue for any particular length “ ‘of time provided that its
duration is such as to show a state of mind equivalent to premeditation or
deliberation.’ ”11 (Sims, supra, 5 Cal.4th at p. 433-434.) “ ‘ “The element of
(footnote continued from previous page)
equivalent to premeditation or deliberation. Thus, for a killing to be perpetrated
while lying in wait, both the concealment and watchful waiting as well as the
killing must occur during the same time period, or in an uninterrupted attack
commencing no later than the moment concealment ends. If there is a clear
interruption separating the period of lying in wait from the period during which
the killing takes place, so that there is neither an immediate killing nor a
continuous flow of the uninterrupted lethal events, the special circumstance is not
proved. A mere concealment of purpose is not sufficient to meet the requirement
of concealment set forth in this special circumstance. However, when a defendant
intentionally murders another person, under circumstances which include (1) a
concealment of purpose, (2) a substantial period of watching and waiting for an
opportune time to act, and (3) immediately thereafter, a surprise attack on an
unsuspecting victim from a position of advantage, the special circumstance of
murder while lying in wait has been established.”
11 Contrary to Justice Kennard’s concurring and dissenting opinion,
nothing in the language of section 190.2, former subdivision (a)(15), which
provides that “[t]he defendant intentionally killed the victim while lying in wait,”
indicates that the durational element of “lying-in-wait” is defined differently for
the special circumstance than it is for first degree murder. (Conc. & dis. opn. of
Kennard, J., post, at p. 2.) Nor does anything we said in Morales, supra, 48
Cal.3d 527, indicate we were so interpreting the special circumstance. (Conc. &
dis. opn. of Kennard, J., post, at p. 2.) At the time of the capital crimes, the only
differences between lying in wait murder and the special circumstance did not
touch on the durational element of lying in wait. Rather, first degree murder by
lying in wait does not require an intent to kill while the special circumstance based
on that theory does. (People v. Webster (1991) 54 Cal.3d 411, 448 (Webster);
People v. Ceja (1993) 4 Cal.4th 1134, 1140, fn. 2 (Ceja).) In addition, the first
(footnote continued on next page)
22
concealment is satisfied by a showing that a defendant’s true intent and purpose
were concealed by his actions or conduct. It is not required that he be literally
concealed from view before he attacks the victim.” ’ ” ’ ” (People v. Hillhouse
(2002) 27 Cal.4th 469, 500 (Hillhouse).) The factors of concealing murderous
intent, and striking from a position of advantage and surprise, “are the hallmark of
a murder by lying in wait.” (People v. Hardy (1992) 2 Cal.4th 86, 164.)
Defendant here was convicted of August’s premeditated murder. In order to
convict him of first degree murder, the jury was instructed it had to find beyond a
reasonable doubt that defendant’s intentional killing was willful, deliberate and
premeditated.
The facts of this case and the jury’s conclusion that defendant acted with
deliberation and premeditation dispel any inference that he killed as a result of
rash impulse. Even a short period of watching and waiting can negate such an
inference. (Moon, supra, 37 Cal.4th at p. 24.) The facts here are more than
sufficient to establish that after the assault on Stokes, defendant turned his
attention to a new target. He selected August, the driver of the only other nearby
car on the road ahead of him, as his next victim. He approached and concealed his
deadly purpose by pulling up alongside of August and induced him to slow down.
August did so, just as Stokes had. This process may not have taken an extended
(footnote continued from previous page)
degree murder formulation refers to “by means of” lying in wait and the special
circumstance referred to “while” lying in wait. Neither difference changes the
principle that for a murder conviction and for a special circumstance finding the
lying in wait need not continue for any particular period of time provided that its
duration is such as to show a state of mind equivalent to premeditation or
deliberation. (Ceja, at p. 1139; People v. Sims (1993) 5 Cal.4th 405, 433-434
(Sims).)
23
period, because defendant did not have to wait long until his next target became
available. But there is no indication of rash impulse. To the contrary, it was
reasonable for the jury to conclude that defendant acted to implement his plan of
luring a victim of opportunity into a vulnerable position by creating or exploiting a
false sense of security. The jury could also reasonably conclude that August was
taken by surprise. He did not flee, but slowed down and drove side-by-side with
defendant, just as Stokes had done. Once the intended victim slowed down, the
time to act became opportune. Defendant stopped watching and started shooting.
Such behavior is completely consistent with, and provides substantial evidence
for, the watching and waiting element of the lying-in-wait special circumstance.
4. Alleged Unconstitutionality of Lying-in-wait Special-circumstance
Instruction
Defendant contends the lying-in-wait special-circumstance instruction was
confusing and constitutionally flawed in violation of the Sixth and Fourteenth
Amendments, and California Constitution article I, section 16.12 In particular, he
contends that “[i]f the temporal element is . . . equivalent to that of first-degree
murder, then the statute loses all claim to performing a rational narrowing
function.” It is not clear whether he means first degree murder on a theory of
premeditation and deliberation, or lying in wait, but in either case the claim fails.
In distinction with premeditated first degree murder, the lying-in-wait special
circumstance requires a physical concealment or concealment of purpose and a
surprise attack on an unsuspecting victim from a position of advantage.
(Section 190.2, former subd. (a)(15); Morales, supra, 48 Cal.3d at pp. 554-555,
557.) Thus, any overlap between the premeditation element of first degree murder
12 While defendant states he is challenging the instructions “as applied in
this case,” the entire challenge is to the language of the instruction.
24
and the durational element of the lying in wait special circumstance does not
undermine the narrowing function of the special circumstance. (Sims, supra, 5
Cal.4th at p. 434.) Moreover, contrary to Justice Moreno’s concurring and
dissenting opinion, concealment of purpose inhibits detection, defeats self-
defense, and may betray at least some level of trust, making it more blameworthy
than premeditated murder that does not involve surprise. (See Catlin, supra, 26
Cal.4th at p. 159 [poison murder]; conc. & dis. opn. of Moreno, J, post, at p. 13.)
A similar narrowing distinction is discernible between the lying-in-wait
special circumstance and lying-in-wait murder because the former requires an
intent to kill, while the latter does not. (Ceja, supra, 4 Cal.4th at p. 1140, fn. 2;
Webster, supra, 54 Cal.3d at p. 448.) Thus, any overlap between the elements of
lying in wait in both contexts does not undermine the narrowing function of the
special circumstance. (See Sims, supra, 5 Cal.4th at p. 434; see also Catlin, supra,
26 Cal.4th at pp. 158-159.)
Defendant further contends that “[i]f the temporal element is . . . equivalent
to that of first degree murder,” the “requirement of a ‘substantial period of
watching and waiting’ is a confusing, contradictory and unnecessary addition to
the instruction,” making the instruction “incorrect on a material point,” and results
in the concept of lying in wait being defined in the instruction in materially
different ways. We disagree with these assertions, and conclude the instruction is
internally consistent. The instruction requires a period of time long enough to
show a “state of mind equivalent to premeditation or deliberation.” (See ante, p.
21, fn. 10.) This formulation describes the durational requirement of the special
circumstance, which is demonstrated by a substantial period of watching and
waiting during which the defendant is physically concealed or conceals his
purpose.
25
5. Alleged prosecutorial misconduct
Defendant alleges the prosecutor committed misconduct when he tried to
prevent the jury from returning second degree murder convictions. During voir
dire, the trial court explained that the jury would only reach a penalty phase if it
found that defendant was guilty of first degree murder and that a special
circumstance was true. Prospective jurors were also told that while deliberating in
the guilt phase, they could not consider or discuss the subject of punishment in any
way.
In his rebuttal argument, the prosecutor addressed defense counsel’s
contention that the August murder was no more than second degree. After
discussing the relevant legal principles, and the evidence showing that defendant
premeditated and deliberated, the prosecutor said, “Now, why go through all of
this? The court is going to instruct you you’re not to consider penalty in this phase
of the trial. I mean, in the back of your heads you all know if we do certain things,
we might be talking about whether he should live or die, and you’re not supposed
to consider that in deciding whether he’s guilty of any of these crimes. In any of
the special circumstance clauses, you’re supposed to separate that and you all said
you could do it. And while you’re not supposed to consider penalty and
punishment, [defense counsel] and [defendant] certainly are thinking about it.
And what happens when you say these are all murders? No doubt about it. All of
the attempted murders, they’re all attempted murders, no doubt about it. Yeah, but
they’re only second degree murders. What happens if they’re second degree
murders? You can never find him guilty of the special circumstance. And they
save his life or at least save --”
Following defense counsel’s objection, the trial court said, “Ladies and
gentlemen, as I’ve indicated to you previously, the statements of the attorneys and
argument are not evidence as you know with regard to the law. At the conclusion
26
of the arguments I will be instructing you as to the law that is applicable to this
case. With regard to the last comment, I will direct you to disregard it.” The jury
was subsequently instructed not to consider penalty or punishment in its
deliberations.
There is no reasonable likelihood the remark misled the jury as to whether it
could consider punishment in its guilt deliberations. (People v. Samayoa (1997)
15 Cal.4th 795, 842-843 (Samayoa).) As the high court has stated, “arguments of
counsel generally carry less weight with a jury than do instructions from the court.
The former are usually billed in advance to the jury as matters of argument, not
evidence [citation], and are likely viewed as the statements of advocates; the latter,
we have often recognized, are viewed as definitive and binding statements of the
law.” (Boyde v. California (1990) 494 U.S. 370, 384 (Boyde).)
Moreover, while defendant relies on People v. Holt (1984) 37 Cal.3d 436
(Holt), to assert the reference to punishment was prejudicial, Holt is
distinguishable. There, the trial court did not immediately admonish the jury
following the prosecutor’s remark that accepting defendant’s theory would
guarantee Holt a parole date. (Id. at pp. 457-458.) Rather than disapproving the
argument, it said, “ ‘I wouldn’t talk any more about that.’ ” (Id. at p. 458.) Here,
in addition to the court’s immediate intervention and disapproval, the jury had
already been properly informed that a penalty phase would follow only if
defendant was convicted of first degree murder and a special circumstance was
found true. Nothing in Holt indicates that the jury there had been similarly
informed. Moreover, the Holt court did not find prejudice based solely on the
prosecutor’s argument. Rather, it reversed for cumulative prejudice based on
several errors including the objectionable argument. (Id. at pp. 458-459.)
In addition to these factors which distinguish this case from Holt, after
argument the jury here was instructed, as was the jury in Holt, “In your
27
deliberations the subject of penalty or punishment is not to be discussed or
considered by you. That is a matter which must not in any way affect your verdict
or affect your finding as to the special circumstance[s] charged in this case.”
(Holt, supra, 37 Cal.3d at p. 458, fn. 16.) We presume the jury followed that
instruction. (See, e.g., People v. Ledesma (2006) 39 Cal.4th 641, 684.)
C. Penalty Phase
1. Alleged Prosecutorial Misconduct
Defendant also alleges numerous instances of prosecutorial misconduct at the
penalty phase. There was no prejudicial misconduct either as to individual claims
or collectively.
First, defendant contends the prosecutor ignored the trial court’s ruling on the
scope of victim impact evidence. The trial court directed that August’s girlfriend,
Linda Leach, not mention “feelings of personal guilt.”
Defendant objects to Leach’s testimony in response to the prosecutor’s
question “When did you last see him?” Leach said she and August saw each other
every day. She had a company function on the night August was murdered, and
he had not felt comfortable leaving without knowing Linda arrived home safely.
These statements do not violate the trial court’s order, and certainly the
prosecutor’s question would not be expected to elicit inappropriate testimony.
The trial court sustained objections to and struck Leach’s volunteered
testimony that “I still feel a lot of guilt about the fact that he was leaving my
house” and “we should have followed the news stories. We should have known
that he should not have been on the road.” We need not consider the correctness
of the trial court’s ruling regarding reference to feelings of personal guilt. Neither
of Leach’s statements were elicited by the prosecutor, and the jury was told to
disregard them.
28
Defendant asserts without elaboration that “[a] similar pattern occurred with
Laquann Sloan’s mother,” and defense counsel was “forced to object
repeatedly . . ., as he was again with Lori Rochon’s sister, Karen Adams . . . .” We
have examined the questioning of these witnesses, and see no misconduct.
Next, defendant asserts prosecutorial misconduct when Leslie Noyer’s
mother picked up and kissed a photograph of her daughter as she left the witness
stand. Defendant moved for a mistrial. The prosecutor said that the incident “was
totally, from my perspective, spontaneous. It was something that I did not
anticipate occurring at all. . . . [T]he act of the kissing of the photograph was
something that took us all by surprise.” Defense counsel said, “He knows or
didn’t know. I would assume he didn’t know it was going to happen. . . . I don’t
think that’s an issue . . . I’m not alleging any kind of misconduct.”
The court denied the motion. It found that counsel had acted in good faith. It
noted that the photograph “was in a position that was out of the line of sight of the
witness as she was being examined by [the prosecutor], and it’s a location in the
structure of this courtroom where exhibits throughout the course of this trial over
the many weeks have been placed when they have not been utilized by a particular
witness.”
By expressly asserting below he was not alleging “any kind of misconduct,”
defendant clearly has waived any challenge on appeal. Moreover, no misconduct
is demonstrated. Nor, to the extent defendant asserts the claim, did the trial court
err in denying the mistrial motion. The case law is clear that victim-impact
testimony is relevant and admissible. When family and friends of murder victims
are asked to come into court to testify about their bereavement, the situation is an
emotionally charged one. The mother’s grief at losing her daughter was a normal
human emotion the jury would assume she experienced. Kissing her daughter’s
photograph, while not appropriate, gave the jury no new or impermissible
29
information, and was not so inflammatory it would “divert the jury’s attention
from its proper role” or invite a purely irrational response. (People v. Taylor
(2001) 26 Cal.4th 1155, 1172.)
Next, defendant contends the prosecutor tried to undermine the trial court’s
ruling regarding what the prosecution asserted was defendant’s “scorecard.” The
court admitted an envelope with handwritten references apparently to Penal and
Vehicle Code sections, with numbers next to these sections. (See ante, p. 4.) The
court excluded a notation on the envelope to “190 Ø.” The prosecution’s theory
was that this was a reference to section 190, delineating punishment for murder,
and in his view indicated a plan to kill a police officer.
During his cross-examination of Dr. Kormos regarding the envelope, the
prosecutor said, “Let’s assume if there is another element on that score card . . .
that indicated an intent to murder a police officer—” The court sustained defense
counsel’s objection, and subsequently stated, “There’s been no answer to the
question. The question is to go out. The jury is to disregard it.”
Even assuming the prosecutor’s question was improper, there is no
reasonable likelihood it misled the jury as to evidence of defendant’s intent to
murder a police officer. (Samayoa, supra, 15 Cal.4th at pp. 842-843.) No
evidence of such a plan or attempt was introduced. Indeed, the prosecutor never
finished the question, so the jury had no idea what point he was trying to make. In
addition, the jury was promptly reminded the question had not been answered, and
they were to disregard it. For these reasons, and to the extent defendant raises the
claim, the trial court did not err in denying his subsequent motion for mistrial
based on this aborted and stricken question.
Next, defendant contends the prosecutor engaged in several instances of
misconduct during closing argument. The prosecutor said, “The difficulty in this
case is not whether the death penalty is justified and warranted here. The
30
difficulty is whether all 12 of you have the internal fortitude to impose the death
penalty on that man over there. It’s not easy. It’s not easy. And as [defense
counsel] in his opening statement alluded to, all it takes is one, one of you to block
a death verdict in this jury. And that’s what he wants, just one of you, because we
have to have a unanimous verdict for a death verdict. All 12 of you have to agree
on that. And if you don’t and you hang, we do it again with another jury.”
Defense counsel objected, and the jury was told to disregard “the last comment.”
While defendant notes he objected to and brought an unsuccessful mistrial
motion regarding the last comment, he challenges on appeal only the “internal
fortitude” aspect of the prosecutor’s statement. This claim is forfeited because
defendant did not object on this ground at trial. It is also meritless.
Relying on United States v. Young (1985) 470 U.S. 1, 18, defendant contends
that statements regarding the jury’s “internal fortitude” were improper. Young
involved the guilt, not penalty, phase of a criminal trial. (Id. at pp. 3-6.)
Moreover, the high court found that, in context, the prosecutor’s comment that the
jury “ ‘do its job,’ ” while misconduct, did not influence the jury “to stray from its
responsibility to be fair and unbiased.” (Id. at p. 18, fn. omitted.) Here, the
prosecutor’s argument merely acknowledged the inherent difficulty in sentencing
to death a person sitting in front of the jury. The argument was proper. (People v.
Jones (1997) 15 Cal.4th 119, 185.)
Without further elaboration, defendant next contends the prosecutor “went
too far” when he said, “When we talk about this personality disorder, what is the
one thing we know we can say for sure? Just the testimony and the work of Dr.
Kormos tallies up to $14,250. And what do you get for your money? Nothing.
Nothing. Not one ounce of it explains why he’s where he is today. Not one piece
of it gives you anything about his character or his background that causes you any
sympathy, to lend out any compassion to give a grant of mercy and spare his life.
31
$14,250, and that’s just Dr. Kormos. What have the other doctors cost? Gretchen
White? We know that she saw him a number of times. Dr. Kaufman and
Shonkoff, they saw him in April of 1991, saw him three times. What do they
cost?” Defense counsel objected, and the court told the jury it would be
instructing it as to the law at the conclusion of argument.
Shortly after the challenged comment, the prosecutor said without objection,
“the significance of the amount of money involved here illustrates that when the
man’s life is on the line, we are not going to be stingy, we’ll give them those
resources. See if you can find something. We’ll give them to you. You need
some bucks, $14,000 for Dr. Kormos? Fine, go ahead. You need some tests
done? Fine, go ahead. We are not going to deny somebody a test that might
provide something that might cause sympathy, compassion for him. But when all
is said and done, it still comes up to a big zero.” In context, the comment simply
reflects permissible argument that, despite being given significant resources,
defendant’s psychiatric consultants were unable to marshal any credible reason to
explain or mitigate defendant’s murderous behavior. Moreover, the trial court’s
later instructions made clear what factors the jury could consider.
Defendant contends the prosecutor committed misconduct when he said,
“Now, who haven’t you heard from? Who are some people that you would have
expected to have heard from that you haven’t heard from? [Defense counsel], in
his opening statement to you, said the defendant doesn’t have any family. He’s an
orphan. He doesn’t have anyone to speak for him. Well, that’s not correct. We
know that his father died last summer. We know that. But you know, . . . there
are ways of preserving the testimony of witnesses who are ill, and who are elderly.
You videotape their testimony and present it here. The defendant’s father could
have spoken to you.” Defense counsel objected, stating in part, “Counsel knows I
made a motion trying to do that and he was not in any condition to do that.” The
32
prosecutor responded, “Well, I disagree with that. And counsel says he doesn’t
like to speak, but that’s a total lie.” The trial court instructed the jury to disregard
the prosecutor’s last comment, and said, “I’ve told you repeatedly that with regard
to the arguments of counsel, the arguments of counsel are not evidence in this
case.”
Defendant concedes the reasons why the examination of defendant’s father
“was apparently not done are not readily discernible from the record.” The fact
that he did not appear, and was an obvious witness to rebut the People’s or
corroborate defendant’s penalty case, was fair comment on the evidence by the
prosecutor. (People v. Lewis (2001) 25 Cal.4th 610, 670 (Lewis).)
Relying on People v. Coddington (2000) 23 Cal.4th 529, defendant also
asserts that the prosecutor’s argument was a violation of the work product
privilege. Coddington held that a “party’s decision that an expert who has been
consulted should not be called to testify is within the privilege.” (Id. at p. 606.)
Whatever the continuing efficacy of Coddington in the context of expert witnesses
(see People v. Gray (2005) 37 Cal.4th 168, 238 (conc. opn. of Baxter, J.); id. at p.
238 (conc. opn. of Chin, J.), it has long been established that a prosecutor may
comment on the absence of logical witnesses to rebut the People’s or corroborate
defendant’s case. (People v. Chatman (2006) 38 Cal.4th 344, 403; Lewis, supra,
25 Cal.4th at p. 670; People v. Szeto (1981) 29 Cal.3d 20, 34; People v. Vargas
(1973) 9 Cal.3d 470, 475; see People v. Bolden (2002) 29 Cal.4th 515, 552-553.)
Nor, as defendant contends, was he “sentenced to death ‘on the basis of
information which he had no opportunity to explain or deny.’ ” Indeed, defense
counsel gave an explanation in his objection to the prosecutor’s argument.
Defendant next objects to the prosecutor’s related comment regarding
defendant’s sister and half sister, “And why weren’t Gina and Sylvia called? Two
logical inferences. One, they didn’t want to testify to why—” The trial court
33
sustained defense counsel’s objection “as to the beginning of that last part.” The
prosecutor continued, “If they had anything positive, constructive to say to wring
from you compassion and show you a basis of having sympathy and a basis for
mercy to be given to this man, you would have heard it.” The trial court overruled
defense counsel’s ensuing objection.
As to the first comment, the record does not reflect what the comment would
have been. Even assuming it was inappropriate, the objection operated precisely
as it was supposed to, and the jury never heard the comment. We reject
defendant’s assertion the second comment was misconduct for the same reasons it
was not misconduct to comment on the absence of defendant’s father.
Defendant asserts misconduct in the prosecutor’s statement, “You know, I
wonder if Dr. Kormos had the misfortune of having a loved one who violated the
law—” Defense counsel objected, and the trial court said, “All right. Move into
another argument . . . .” This claim is forfeited for failure to seek an admonition.
It is also meritless. Other than quoting the statement, defendant provides no
reason why it was improper or how he was prejudiced. It is not even clear what
the prosecutor was attempting to say. No misconduct is apparent.
Finally, defendant challenges the prosecutor’s comment, “[T]his is my last
chance to talk to you. And I was wondering what Leslie, Lori, Laquann, and
Raymond would say to you if they had the chance to tell you what happened to
them. And maybe I’ve been in this case too long, but I felt last night that I did
have a conversation with them. And in that conversation, Leslie said to me, ‘You
know, his attorney --’ ” The trial court sustained defense counsel’s objection.
The claim is waived on appeal by the failure to request an admonition.
Moreover, the line of questioning was ended by defense objection, and defendant
makes no attempt to explain how the partial statement was improper or prejudicial.
34
2. Constitutionality of Death Penalty Statute
Defendant makes numerous claims that the death statute violates the United
States Constitution. We conclude they are not individually, or cumulatively,
meritorious.
Section 190.2 is not impermissibly broad in violation of the Fifth, Sixth,
Eighth, and Fourteenth Amendments. In particular here, the multiple-murder and
lying-in-wait special circumstances adequately narrow the class of murderers
subject to the death penalty. (People v. Jurado (2006) 38 Cal.4th 72, 127; People
v. Box (2000) 23 Cal.4th 1153, 1217 (Box).)
Section 190.3, factor (a), which allows the jury to consider “[t]he
circumstances of the crime of which the defendant was convicted in the present
proceeding and the existence of any special circumstances found to be true
pursuant to Section 190.1,” does not violate due process and the Eighth
Amendment because those circumstances differ from case to case. (Tuilaepa v.
California (1994) 512 U.S. 967, 975-976; Schmeck, supra, 37 Cal.4th at p. 304.)
The death statute does not allow for arbitrary and capricious sentencing, or
deprive a defendant of the right to a jury trial on each element of a capital crime,
in violation of the Sixth, Eighth, and Fourteenth Amendments. In particular, these
constitutional provisions are not violated when a jury is not required to find
beyond a reasonable doubt that aggravating factors outweigh mitigating factors,
that death is the appropriate sentence, or that an aggravating factor (except for
other crimes) is true. (People v. Cox (2003) 30 Cal.4th 916, 971-972 (Cox).)
Nor is there merit to defendant’s alternative claim that a preponderance of the
evidence standard of proof is compelled for the findings that an aggravating factor
exists, that the aggravating factors outweigh the mitigating factors, and that death
is the appropriate sentence. The jury was instructed that “[t]o return a judgment of
death, each of you must be persuaded that the aggravating circumstances are so
35
substantial in comparison with the mitigating circumstances that it warrants death
instead of life without parole.” That instruction is sufficient. (Tuilaepa v.
California, supra, 512 U.S. at p. 979; Box, supra, 23 Cal.4th at p. 1216.) “Unlike
the guilt determination, ‘the sentencing function is inherently moral and
normative, not factual’ [citation] and, hence, not susceptible to a burden-of-proof
quantification.” (People v. Hawthorne (1992) 4 Cal.4th 43, 79.)
The Constitution does not require that a jury make written findings regarding
aggravating factors, or reach unanimity as to which aggravating evidence is true.
Nothing in Cunningham v. California (2007) __ U.S. __ [127 S. Ct. 856],
Apprendi v. New Jersey (2000) 530 U.S. 466, or Ring v. Arizona (2002) 536 U.S.
584, affects our conclusions in this regard. (People v. Prince (2007) 40 Cal.4th
1121, 1297-1298; Cox, supra, 30 Cal.4th at pp. 971-972; People v. Prieto (2003)
30 Cal.4th 226, 263, 275.)
The death statute does not violate defendant’s right to due process or his state
or federal right to equal protection. “[C]apital and noncapital defendants are not
similarly situated and therefore may be treated differently without violating
constitutional guarantees of equal protection of the laws or due process of law.”
(People v. Manriquez (2005) 37 Cal.4th 547, 590 (Manriquez).)
The failure to require intercase proportionality does not guarantee “arbitrary,
discriminatory, or disproportionate impositions of the death penalty,” or violate
the Fifth, Sixth, Eighth, and Fourteenth Amendments. (Pulley v. Harris (1984)
465 U.S. 37, 50-51; Cox, supra, 30 Cal.4th at p. 970.) Contrary to defendant’s
claim, “use of unadjudicated criminal activity during the penalty phase is
permissible,” and does not violate the Fifth, Sixth, Eighth, and Fourteenth
Amendments. (Box, supra, 23 Cal.4th at p. 1217.) The trial court is not required
to delineate which factors are mitigating or aggravating. (Manriquez, supra, 37
Cal.4th at p. 590.)
36
The use of the words “extreme” in section 190.3, factors (d) and (g), and
“substantial” in factor (g), does not render these factors unconstitutionally vague,
arbitrary, or capricious, act as a barrier to the consideration of mitigating evidence,
or violate the Fifth, Sixth, Eighth, and Fourteenth Amendments. Factor (k), as
expanded in the instructions here pursuant to People v. Easley (1983) 34 Cal.3d
858, allowed consideration of “any other circumstance which extenuates the
gravity of the crime even though it is not a legal excuse for the crime and any
sympathetic or other aspect of the defendant’s character or record that the
defendant offers as a basis for a sentence less than death, whether or not related to
the offense for which he is on trial.” (Id. at p. 878, fn. 10; Schmeck, supra, 37
Cal.4th at p. 305; see Ayers v. Belmontes (2006) __ U.S. __ [127 S.Ct. 469, 475];
Boyde, supra, 494 U.S. at pp. 381-382.)
We reject defendant’s argument that the death penalty statute is contrary to
international norms of humanity and decency, and therefore violates the Eighth
and Fourteenth Amendments. Defendant points to no authority that “prohibit[s] a
sentence of death rendered in accordance with state and federal constitutional and
statutory requirements.” (Hillhouse, supra, 27 Cal.4th at p. 511.)
37
III. DISPOSITION
The judgment is affirmed.
CORRIGAN, J.
WE CONCUR:
GEORGE, C. J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
38
CONCURRING OPINION BY WERDEGAR, J.
Like Justice Moreno, who dissents from affirmance of the lying-in-wait
special-circumstance finding (conc. & dis. opn. of Moreno, J., post), I am
concerned at the potential breadth of that special circumstance. In light of our
holdings that the special circumstance (set out in Pen. Code, § 190.2, subd.
(a)(15)) does not require physical concealment but only “concealment of purpose,
coupled with a surprise attack from a position of advantage” (People v. Morales
(1989) 48 Cal.3d 527, 556), and that the period of watchful waiting involved need
be only so long “ ‘as to show a state of mind equivalent to premeditation or
deliberation’ ” (People v. Sims (1993) 5 Cal.4th 405, 433-434), the concept of
lying in wait threatens to become so expansive as to eliminate any meaningful
distinction between defendants rendered eligible for the death penalty by the
special circumstance and those who have “merely” committed first degree
premeditated murder.
I do not believe, however, the special circumstance must or should be
construed so broadly as to pose a constitutional problem. In order to find the
evidence of lying in wait sufficient in this case, particularly, we need not
understand concealment of purpose to mean simply that defendant did not
announce his intent before killing the victim. This case, like Morales, involves
active deceit as to purpose—a misrepresentation or ruse that lulls the victim into a
false sense of security. In Morales, one of the murderers lured the victim into his
1
car on the pretext of a shopping trip. (People v. Morales, supra, 48 Cal.3d at
p. 554; see also People v. Sims, supra, 5 Cal.4th at p. 433 [sufficient evidence to
support lying-in-wait special circumstance where murderers lured pizza delivery
man to motel room by pretext of ordering pizza].) In the case at bench, defendant
similarly employed a ruse—gesturing and smiling as he pulled alongside the
victim, Raymond August—to induce August to slow his vehicle so that defendant
could shoot him. (Or so the jury could infer from the testimony of eyewitness
Rodney Stokes.) Defendant’s conduct was distinct from ordinary premeditated
murder not merely because he did not warn the victim of his murderous intent, but
because he actively concealed it by his deceitful behavior.
In my view, this is a meaningful distinction, one on which the voters could
have reasonably relied in approving the special circumstance law. Those who
conceal from the victim their intent to kill by deceit or ruse could reasonably be
regarded as more culpable than those who do not do so; deceitful behavior is
traditionally and rationally condemned. Perhaps more to the point, an aspiring
murderer who lures his victim into a vulnerable position and then launches a
surprise attack is particularly likely to succeed, and hence is particularly
dangerous. As the penal law is meant to deter, the special circumstance is not
irrational in selecting especially dangerous behavior for special punishment.
Considering defendant’s employment of a ruse, moreover, sufficient
evidence supports the finding that he watched and waited for his opportunity to
kill August for a substantial period. Though he took only a few seconds to
prepare to shoot August, defendant used that time, as the majority explains, “to
implement his plan of luring a victim of opportunity into a vulnerable position by
creating . . . a false sense of security.” (Maj. opn., ante, at p. 23.) Brief though it
was, the period of watching and waiting here was substantial in that it allowed
defendant to implement a critical step in his plan of attack.
2
Wary as I am of affirming a finding on an overbroad lying-in-wait special
circumstance, therefore, I conclude that here, without adopting an unconstitutional
construction, the majority properly holds the finding supported by substantial
evidence.
WERDEGAR, J.
3
CONCURRING AND DISSENTING OPINION BY KENNARD, J.
The concurring and dissenting opinion by Justice Moreno concludes that
the lying-in-wait special circumstance, as this court has construed it, does not
perform the narrowing function required by the federal Constitution’s Eighth
Amendment to distinguish from other murders those killings that are so heinous as
to warrant the death penalty. At one time I expressed similar concerns. (People
v. Ceja (1993) 4 Cal.4th 1134, 1146-1147 (conc. opn. of Kennard, J.).) Since
then, however, I have come to the conclusion that the lying-in-wait special
circumstance does not violate the federal Constitution. (People v. Jurado (2006)
38 Cal.4th 72, 145-147 (conc. opn. of Kennard, J.).) On this point, therefore, I
disagree with Justice Moreno. But I share his view that the trial court in this case
erred in instructing the jury that to find true the special circumstance allegation of
lying in wait, it need only find that the lying in wait continued for the length of
time necessary “to show a state of mind equivalent to premeditation or
deliberation.” Because that error was prejudicial, this court should vacate the
lying-in-wait special circumstance found by the jury in this case.
Under California’s death penalty law, murder intentionally committed by
lying in wait is a special circumstance warranting the death penalty, but those who
commit premeditated and deliberate murder are not subject to the death penalty
unless there is also a special circumstance finding. This distinction suggests that
when the voters in 1978, through the power of initiative, enacted California’s
1
death penalty law, they regarded murder by lying in wait as more heinous than
premeditated murder, and they intended to define murder by lying in wait in a
manner that differed significantly from premeditated murder. To give effect to
that distinction, this court in People v. Morales (1989) 48 Cal.3d 527, held that the
lying-in-wait special circumstance requires “a substantial period of watching and
waiting for an opportune time to act.” (Id. at p. 557, italics added.) A murder
committed after a substantial period of watchful waiting demonstrates a degree of
callousness and coldbloodedness exceeding that of an “ordinary” premeditated
killing, where the murderer’s requisite reflection and consideration of
consequences may occur in a very short time. (See People v. Lenart (2004) 32
Cal.4th 1107, 1127 [“Premeditation and deliberation do not require much time
[citation], for ‘ “[t]houghts may follow each other with great rapidity and cold,
calculated judgment may be arrived at quickly.” ’ ”].)
Thereafter, in People v. Sims (1993) 5 Cal.4th 405, this court upheld a jury
instruction stating that the waiting period required for the lying-in-wait special
circumstance “need not continue for any particular period of time provided that its
duration is such as to show a state of mind equivalent to premeditation or
deliberation.” (Id. at pp. 433-434.) As Justice Moreno’s concurring and
dissenting opinion in this case points out, Sims undercuts this court’s earlier
requirement in People v. Morales, supra, 48 Cal.3d at page 557, that the period of
watchful waiting be “substantial.” (Conc. & dis. opn. of Moreno, J., post, at p. 6.)
In Sims, I wrote separately, disagreeing with the majority’s discussion of
three issues unrelated to lying in wait, a topic that my separate opinion in Sims did
not address. (People v. Sims, supra, 5 Cal.4th at pp. 467-471.) On reflection, I
now conclude that the Sims majority was also wrong in departing from this court’s
earlier holding in People v. Morales, supra, 48 Cal.3d at page 557, that the lying-
in-wait special circumstance requires a “substantial” period of watchful waiting. I
2
therefore agree with Justice Moreno (conc. & dis. opn. of Moreno, J., post, at
pp. 13-14) that the trial court here erred by giving the same jury instruction that
this court upheld in Sims: that to find the lying-in-wait special circumstance true,
the jury need only find that the defendant waited for a period of time sufficient to
show “a state of mind equivalent to premeditation or deliberation.” I hasten to add
that the giving of that jury instruction in this case was understandable in light of its
express approval by the majority in Sims. For the reasons given by Justice
Moreno (conc. & dis. opn. of Moreno, J., post, at pp. 14-15), the error requires
reversal of the jury’s special circumstance finding of lying in wait, but it does not
require reversal of the judgment of death because the jury found the existence of
another special circumstance.
KENNARD,
J.
3
CONCURRING AND DISSENTING OPINION BY MORENO, J.
I agree that defendant Charles Stevens’s death judgment should be
affirmed. I would, however, reverse the lying-in-wait special circumstance
because the imposition on defendant of that circumstance, as interpreted by this
court and applied in this case, violates the Eighth Amendment to the United States
Constitution. Unfortunately, the meaning and significance of this circumstance
has not been interpreted with sufficient intellectual rigor, notwithstanding the fact
that its application in a given case may mean the difference between life and
death.
I.
The jury found true the lying-in-wait special circumstance in connection with
the Raymond August murder. As recounted in the majority opinion, defendant,
driving a white Mazda on Interstate 580 in Oakland, first pulled alongside Rodney
Stokes, prompting Stokes to slow down and lower his window to see if he knew
the driver. Defendant motioned as though trying to get Stokes’s attention, and
smiled at him. Defendant then shot at Stokes several times, but missed him. After
that, Stokes saw defendant catch up to another car on the freeway and appear to
essentially repeat the same modus operandi: “Stokes testified defendant ‘g[o]t the
attention of the other driver’ because both sets of brake lights came on. Stokes
lost sight of the cars for a brief moment, which he characterized as ‘the snap of a
finger.’ After rounding a slight turn, Stokes saw the cars again, and heard at least
1
two gunshots. Defendant rapidly drove to the 35th Avenue off-ramp, left the
freeway, and drove onto another on-ramp that entered the freeway going the
opposite direction.” (Maj. opn., ante, at p. 3.)
In denying defendant’s claim that there was insufficient evidence of the
lying-in-wait special circumstance, the majority first clarified its conception of the
requirement for proving such a crime. “At the time of the capital crimes, the
elements of the lying-in-wait special circumstance required an intentional murder;
committed under circumstances that included a concealment of purpose; a
substantial period of watching and waiting for an opportune time to act; and,
immediately thereafter, a surprise attack on an unsuspecting victim from a position
of advantage. (Former Pen. Code, § 190.2, subd. (a)(15);[1] People v. Morales
(1989) 48 Cal.3d 527, 557.) The purpose of the watching and waiting element is
to distinguish those cases in which a defendant acts insidiously from those in
which he acts out of rash impulse. (See People v. Moon (2005) 37 Cal.4th 1, 24
(Moon).)” (Maj. opn., ante, at pp. 21-22, fn. omitted.)
Applying this definition of the lying-in-wait special circumstance to the
present case, the majority states: “The facts of this case and the jury’s conclusion
that defendant acted with deliberation and premeditation dispel any inference that
he killed as a result of rash impulse. Even a short period of watching and waiting
can negate such an inference. (Moon, supra, 37 Cal.4th at p. 24.) The facts here
are more than sufficient to establish that after the assault on Stokes, defendant
turned his attention to a new target. He selected August, the driver of the only
other nearby car on the road ahead of him, as his next victim. He approached and
concealed his deadly purpose by pulling up along side of August and induced him
1
All statutory references are to the Penal Code unless otherwise indicated.
2
to slow down. August did so, just as Stokes had. This process may not have taken
an extended period, because defendant did not have to wait long until his next
target became available. But there is no indication of rash impulse. To the
contrary, it was reasonable for the jury to conclude that defendant acted to
implement his plan of luring a victim of opportunity into a vulnerable position by
creating or exploiting a false sense of security. The jury could also reasonably
conclude that August was taken by surprise. He did not flee, but slowed down and
drove side-by-side with defendant, just as Stokes had done. Once the intended
victim slowed down, the time to act became opportune. Defendant stopped
watching and started shooting. Such behavior is completely consistent with, and
provides substantial evidence for, the watching and waiting element of the lying-
in-wait special circumstance.” (Maj. opn., ante, at pp. 23-24.)
II.
Lying in wait, as a principle in criminal law, began as a 14th century statute
denying to the Crown the right to pardon any person who killed “while lying in
wait” for his victim. This statute apparently arose as a reaction by the Norman
conquerors of England against the subjugated Anglo-Saxons’ practice of killing
the Normans by ambush. (Note, Criminal Law: Homicide: Murder Committed by
Lying in Wait (1954) 42 Cal. L.Rev. 337.) It evolved into a form of first degree
murder, incorporated into Penal Code section 189, and, as explained below, was
used as an alternative means of proving that the defendant premeditated or
deliberated before the murder. (Note, supra, at pp. 340-341; see People v. Thomas
(1953) 41 Cal.2d 470, 481 (conc. opn. of Traynor, J.).)
Lying in wait took on a different use when it was incorporated as a special
circumstance into the 1978 death penalty statute together with other forms of first
degree murder in existence at the time, such as murder by torture or by a
destructive device. This death penalty statute provided that a defendant must be
3
sentenced to death or life imprisonment without possibility of parole if the
“defendant intentionally killed the victim while lying in wait.” (§ 190.2, subd.
(a)(15), as added by Prop. 7, approved by voters, Gen. Elec. (Nov. 7, 1978).) “In
this setting, lying in wait is not a means of proving premeditation in order to show
the murder is one of the first degree. To the contrary, the murder must already
have been found to be first degree before the jury reaches the question of special
circumstance. [¶] Instead, the special circumstance of lying in wait serves — and
to be constitutional, must serve — a different purpose: it must provide a
‘ “ ‘meaningful basis for distinguishing the few cases in which [the death penalty]
is imposed from the many cases in which it is not.’ ” ’ (Godfrey v. Georgia (1980)
446 U.S. 420, 427.)” (People v. Webster (1991) 54 Cal.3d 411, 465 (conc. & dis.
opn. of Broussard, J.).)
This court has failed to interpret the lying-in-wait special circumstance to
serve that narrowing function. In People v. Morales, supra, 48 Cal.3d 527, 555
(Morales), we made clear that lying in wait within the meaning of the special
circumstance statute did not require actual physical concealment, but only
concealment of purpose. At the same time, the Morales court rejected a
constitutional challenge to this interpretation of the lying-in-wait special-
circumstance statute. “[W]e do not mean to suggest that a mere concealment of
purpose is sufficient to establish lying in wait — many ‘routine’ murders are
accomplished by such means, and the constitutional considerations raised by
defendant might well prevent treating the commission of such murders as a special
circumstance justifying the death penalty. But we believe that an intentional
murder, committed under circumstances which include (1) a concealment of
purpose, (2) a substantial period of watching and waiting for an opportune time to
act, and (3) immediately thereafter, a surprise attack on an unsuspecting victim
from a position of advantage, presents a factual matrix sufficiently distinct from
4
‘ordinary’ premeditated murder to justify treating it as a special circumstance.”
(Morales, supra, 48 Cal.3d at p. 557.)
Although the court acknowledged that concealment of purpose alone would
not distinguish lying-in-wait murder from ordinary murder, it quickly became
clear that the second requirement of the lying-in-wait special circumstance, the
substantial period of watching and waiting, also did not distinguish it from
“ordinary” premeditated murder. We subsequently approved the lying-in-wait
special-circumstance instruction that included the following, taken from the lying-
in-wait murder instruction: “ ‘The lying in wait need not continue for any
particular period of time provided that its duration is such as to show a state of
mind equivalent to premeditation or deliberation . . . .” (People v. Sims (1993) 5
Cal.4th 405, 433-434.) As the majority affirms in the present case, “[t]he purpose
of the watching and waiting element is to distinguish those cases in which a
defendant acts insidiously from those in which he acts out of rash impulse.” (Maj.
opn., ante, at p. 22.)
This dictum that the lying-in-wait period be equivalent to premeditation and
deliberation apparently entered the jury instruction on lying-in-wait murder via
Justice Traynor’s concurring opinion in People v. Thomas, supra, 41 Cal.2d 470,
475.) Justice Traynor viewed as erroneous the then current lying-in-wait murder
instruction, which stated that “ ‘Where the killing is by “lying in wait,” and the act
causing death was intentional, it is murder of the first degree, whether the killing
was intentional or unintentional, as in such case it is not necessary that there exist
in the mind of the perpetrator an intent to kill.’ ” (Id., at p. 476.) His concern was
that a jury receiving the above instruction could convict someone who had
unintentionally killed a person after a period of lying in wait, even though the
person’s actions would not rise to the level of murder, as in the case of the person
who lies in wait merely intending to surprise a person who then has a heart attack.
5
(Thomas, supra, 41 Cal.2d at pp. 478-479.) Because section 189 provides that
first degree murder will be found for murder perpetuated by various means,
including lying in wait “ ‘or any other kind of willful, deliberate and premeditated
killing’ ” (41 Cal.2d at p. 477), Justice Traynor concluded: “There must . . . be
substantial evidence of a long enough period of waiting and watching in
concealment to show a state of mind equivalent to premeditation and deliberation
before the court can properly give an instruction on lying in wait. . . . . Otherwise a
killing that was the result of a rash impulse would be converted into first degree
murder.” (Id. at p. 481 (conc. opn. of Traynor, J.).)
Thus, the language in the lying-in-wait special-circumstance jury
instruction equating the period of lying in wait with a period of premeditation and
deliberation was designed to ensure that the person lying in wait was guilty of
murder. Morales’s dictum that there must be a “substantial period of watching
and waiting” was intended to differentiate lying-in-wait special-circumstance
murder from “ ‘ordinary’ ” premeditated murder. (Morales, supra, 48 Cal.3d at
p. 557.) The two instructions thus pull in different directions, with the former
modifying and cancelling out the latter, so that the “substantial period of watching
and waiting” as interpreted in Morales has become no more than the watching and
waiting needed to establish the premeditation and deliberation required in
“ordinary” premeditated murder.2
What then is left of lying in wait if neither Morales’s factor (1),
concealment of purpose, nor factor (2), a substantial period of watching and
waiting, actually distinguishes lying in wait from ordinary first degree murder?
2
I note that the jury was instructed in the present case that “[t]he lying in
wait need not continue for any particular period of time provided that its duration
is such as to show a state of mind equivalent to premeditation or deliberation.”
6
The third factor is to initiate, immediately after the watching and waiting, “a
surprise attack on an unsuspecting victim from a position of advantage.”
(Morales, supra, 48 Cal.3d at p. 557.) But concealing murderous intent and
launching a surprise attack from a position of advantage are not two distinct
factors distinguishing lying-in-wait murder, but one circumstance — almost
invariably, one conceals a murderous intent in order to gain advantage over the
victim. According to this court’s jurisprudence, then, the lying-in-wait special
circumstance, which requires neither lying nor waiting, is nothing more than
murder by surprise, and I will refer to it as such for the duration of the discussion.
Is murder by surprise a constitutionally valid special circumstance? Since
Morales, this court has routinely rejected the notion that the lying-in-wait special
circumstance is unconstitutional, relying on cases that ultimately can be traced
back to Morales (see, e.g., Moon, supra, 37 Cal.4th at p. 44), not acknowledging
that Morales’s constitutional justification for that special circumstance is built on
sand. The single most comprehensive judicial effort to constitutionally defend the
lying-in-wait special circumstance is to be found in Morales v. Woodford (9th Cir.
2004) 388 F.3d 1159. In that case, the Ninth Circuit panel, over a vigorous
dissent, upheld a facial challenge to the special circumstance. The majority
opinion in that case proceeded with the following syllogism. Its major premise
was that “a circumstance that makes one eligible for the death penalty must meet
two requirements to satisfy the Eighth Amendment” (id. at p. 1174) and then
quoted the United States Supreme Court in Tuilaepa v. California (1994) 512 U.S.
967, 972 (Tuilaepa): “ ‘First, the circumstance may not apply to every defendant
convicted of a murder; it must apply only to a sub-class of defendants convicted of
murder. Second, the aggravating circumstance may not be unconstitutionally
vague.’ ”
7
Next, in establishing its minor premise, the Ninth Circuit majority reasoned
that lying in wait applies only to a subclass of defendants convicted of murder and
that it is not unconstitutionally vague. As to the former point, it stated: “To
illustrate a non-lying-in-wait murder: a sadistic person who wants the victim to
know what is coming, and who has no doubt of his ability to accomplish the
crime, may confront the victim face to face, say ‘I’m going to kill you,’ and do so.
Or a person intending to kill another may threaten the victim, travel armed, and
when he spots his intended victim by chance, approach him and shoot him face to
face. Or, not uncommonly, the loser of a bar fight may say ‘I’m going to kill you,’
go to his car or his home and get a gun, come back to the bar, confront the victim
saying ‘now I’m going to kill you,’ and do so. Even under the California Supreme
Court’s liberal interpretations of lying in wait, these hypothetical first-degree
murders would not merit the special circumstance.” (Morales v. Woodford, supra,
388 F.3d at p. 1175.) Moreover, relying on a previous case, Houston v. Roe (9th
Cir. 1999) 177 F.3d 901, 907-908, the court held that the special circumstance was
not unconstitutionally vague because it “ ‘created a thin but meaningfully
distinguishable line between first degree murder lying in wait and special
circumstances lying in wait.’ ” (Morales v. Woodford, supra, 388 F.3d at
p. 1174.)
Having thus proceeded from major premise to minor premise, the Ninth
Circuit concluded that the lying-in-wait circumstance does not violate the Eighth
Amendment. (Morales v. Woodford, supra, 388 F.3d at p. 1176.)
I disagree with the Ninth Circuit’s major premise that, in order to establish
the constitutionality of a special circumstance, one need only determine that the
special circumstance applies to a subclass of first degree murderers and is not
unconstitutionally vague. Although the Ninth Circuit relies on Tuilaepa, supra,
512 U.S. 967, for this proposition, I do not understand Tuilaepa to have repudiated
8
the basic tenets of the United States Supreme Court’s modern Eighth Amendment
jurisprudence that, as the court reiterated in the same term and the same month as
Tuilaepa, “ ‘to pass constitutional muster, a capital sentencing scheme must
“genuinely narrow the class of persons eligible for the death penalty and must
reasonably justify the imposition of a more severe sentence on the defendant
compared to others found guilty of murder.” ’ ” (Romano v. Oklahoma (1994) 512
U.S. 1, 7, italics added.) Nor was it repudiating its often quoted formulation in
Godfrey v. Georgia, supra, 446 U.S. at page 427, that death penalty eligibility
criteria must provide “a meaningful basis for distinguishing the few cases in which
the penalty is imposed from the many cases in which it is not.”
Moreover, Tuilaepa did not consider the validity of any special
circumstance, but rather addressed the constitutionality of California’s penalty
phase provisions under section 190.3. To support its dictum that an aggravating
circumstance that would make a defendant eligible for death “must apply only to a
sub-class of defendants convicted of murder,” the Tuilaepa court cited Arave v.
Creech (1993) 507 U.S. 463. Arave concerned a challenge to an Idaho death
penalty statute that had as one of its aggravating or special circumstances that
“[b]y the murder, or circumstances surrounding its commission, defendant
exhibited utter disregard for human life.” (Id. at p. 465.) The court stated: “When
the purpose of a statutory aggravating circumstance is to enable the sentencer to
distinguish those who deserve capital punishment from those who do not, the
circumstance must provide a principled basis for doing so.” (Id. at p. 474, italics
added.) In considering the case at hand, the court noted that the Idaho Supreme
Court had given the circumstance at issue a limiting construction, referring to a
“ ‘cold-blooded, pitiless slayer.’ ” (Id. at p. 469.) The court concluded that the
circumstance as so construed genuinely narrowed the class of first degree
murderers “because some within the broad class of first-degree murderers do
9
exhibit feeling. Some, for example, kill with anger, jealousy, revenge, or a variety
of other emotions. In Walton [v. Arizona (1990) 497 U.S. 639] we held that
Arizona could treat capital defendants who take pleasure in killing as more
deserving of the death penalty than those who do not. Idaho similarly has
identified the subclass of defendants who kill without feeling or sympathy as more
deserving of death. By doing so, it has narrowed in a meaningful way the category
of defendants upon whom capital punishment may be imposed.” (Arave v.
Creech, supra, 507 U.S. at p. 476, italics omitted and added.)
It is a truism therefore, that to be consistent with the Eighth Amendment, a
special circumstance that makes a defendant eligible for the death penalty must not
only narrow the class of murderers, but must do so in a principled and meaningful
way to “ ‘ “reasonably justify the imposition of a more severe sentence on the
defendant compared to others found guilty of murder” ’ ” (Romano v. Oklahoma,
supra, 512 U.S. at p. 7), and to identify a subclass of defendants “as more
deserving of death.” (Arave v. Creech, supra, 507 U.S. at p. 476.) Special
circumstances based on moral trivialities would therefore not pass constitutional
muster. A “foul language” special circumstance, for example — using foul
language while committing the murder — would not survive an Eighth
Amendment challenge.
Most of California’s many special circumstances fulfill the function of
identifying the subclass of murderers more deserving of death. When someone
not only commits first degree murder, but tortures the victim (§ 190.2, subd.
(a)(18)), or murders by an especially destructive device that is a danger to the
general public (id., subd. (a)(4)), or kills a peace officer (id., subd. (a)(7)), the
moral justification for the greater penalty is clear. Not so with murder by surprise.
The lying-in-wait special circumstance as interpreted by this court declares in
effect: “The defendant deserves a greater punishment than the ordinary first
10
degree murderer because not only did he commit first degree murder, but he failed
to let the person know he was going to murder him before he did.” How can we
make sense of this kind of special circumstance? Not only is surprise a common
feature of murder — since murderers usually want their killings to succeed, and
victims usually don’t want to be murdered — but it is not at all obvious that a
murderer who does not conceal his purpose before murdering the victim is less
culpable than one who does. One of the examples of murder without the lying-in-
wait special circumstance furnished by the Ninth Circuit, is “a sadistic person who
wants the victim to know what is coming, and who has no doubt of his ability to
accomplish the crime, [and who] confront[s] the victim face to face, say[ing] ‘I’m
going to kill you’ ” (Morales v. Woodford, supra, 388 F.3d at p. 1175). How is
this murderer less culpable and less deserving of the death penalty, by any
conventional standard of morality, than someone who conceals his purpose before
murdering? To put it another way, because a murderer must gain an advantage
over his victim, why is it at all morally significant that he gained the advantage
through surprise rather than through overpowering, or that he murders right after
the surprise rather than sadistically toying with the victim? And how is the
murderer who announces his intention to murder just before carrying it out against
a defenseless person less culpable than one who maintains surprise?
The closest this court has come to a principled defense of lying in wait as a
special circumstance is the comment in People v. Edelbacher (1989) 47 Cal.3d
983, 1023, that “[m]urder committed by lying in wait has been ‘anciently regarded
. . . as a particularly heinous and repugnant crime.’ (Note, Murder Committed by
Lying in Wait (1954) 42 Cal. L.Rev. 337.)” The cited article, as noted above
(ante, at p. 3), in fact explains that English law regarded lying in wait as
particularly heinous because in the period following the Norman conquest in the
11th century, Anglo-Saxons would lie in wait to assassinate their Norman
11
conquerors. Whether we still share with the medieval Normans that special
repugnance for lying-in-wait murder as originally conceived — an ambush
assassination that involves physical concealment and a substantial period of
watching and waiting — there is nothing to indicate that ordinary murder by
surprise, the lying-in-wait special circumstance as construed by this court, has
been historically, or is regarded currently, as an especially heinous form of
murder.3
In defense of the lying-in-wait special circumstance, the majority states:
“The special circumstance requires an intent to kill, which lying-in-wait murder
does not. [Citation.][4] This difference alone means that any overlap between the
3
Other justifications for the lying-in-wait special circumstance were
considered and rejected by Justice Broussard in his cogent concurring and
dissenting opinion in People v. Webster, supra, 54 Cal.3d 411, 467: “In Richards
v. Superior Court [(1983)] 146 Cal.App.3d 306, 314, footnote 5, the court
speculated that ‘[o]ne supposes that [lying in wait] is perceived as a particularly
cowardly form of murder — hence the opprobrium heaped on the western villain
who killed from ambush. And in earlier, more religious times, special scorn was
reserved for those who murdered victims in a fashion intended to deprive them of
the opportunity for reflection and contrition. Thus, the piteous complaint of
Hamlet’s father that he was murdered “in the blossoms of my sin/ Unhousel’d,
disappointed, unanel’d/ No reckoning made, but sent to my account/ With all my
imperfections on my head . . . .” (Hamlet, act I, scene v., line 66ff.)’ [¶] I do not
believe the drafters and voters in 1978 included the lying-in-wait special
circumstance because of a 400-year-old notion that an honorable killer allows the
victim time to confess his sins, or even a 100-year-old notion that an honorable
killer waits until the victim has a chance to draw first. In any case, the lying-in-
wait special circumstance, as construed in Morales, embodied neither notion. To
the contrary, Morales specifically rejected the contention that the special
circumstance only applies if the killer ambushes the victim.” I agree.
4
Lying-in-wait murder requires “ ‘an intentional infliction upon the person
killed of bodily harm involving a high degree of probability that it will result in
death and which shows a wanton disregard for human life.’ ” (People v. Ruiz
(1988) 44 Cal.3d 589, 614, fn. 3.)
12
premeditation element of first degree murder and the duration element of lying in
wait does not undermine the narrowing function of the special circumstance.”
(Maj. opn., ante, at p. 24.) But intent to kill is required in ordinary first degree
premeditated murder. (See Moon, supra, 37 Cal.4th at p. 29.) The majority fails
to explain how premeditated murder by surprise is more deserving of the death
penalty or life without possibility of parole than premeditated murder that does not
involve surprise.
Because, as discussed above, lying in wait was originally conceived as a
type of first degree murder and not a special circumstance, it was not particularly
designed to do what the Eighth Amendment requires — provide a principled basis
for determining which murderers are especially culpable and therefore eligible for
the death penalty. I do not assert that the court cannot give the special
circumstance a reasonable limiting construction that would survive an Eighth
Amendment challenge. But it has failed to do so.
III.
In the present case, as noted, the jury was instructed on a definition of the
lying-in-wait special circumstance that “ ‘[t]he lying in wait need not continue for
any particular period of time provided that its duration is such as to show a state of
mind equivalent to premeditation or deliberation.’ ” (Maj. opn., ante, at p. 22,
fn. 10.) Although the jury was also instructed that the lying in wait must
constitute “a substantial period of watching and waiting for an opportune time to
act,” the instruction regarding the duration of the lying in wait makes it reasonable
for the jury to interpret the word “substantial” to simply mean that time necessary
for deliberation, as this court has done. (See maj. opn., ante, at p. 22, fn. 10; see
also People v. Edwards (1991) 54 Cal.3d 787, 823.) Because the lying-in-wait
special circumstance, as set forth by this instruction, does not provide a principled
basis for dividing first degree murderers eligible for the death penalty from those
13
who are not, and is therefore not consistent with the Eighth Amendment, I would
hold that the instruction is in error.
For purposes of assessing the prejudicial effect of this instructional error, I
will assume that the above erroneous jury instruction could have been cured by
omitting the words “The lying in wait need not continue for any particular period
of time provided that its duration is such as to show a state of mind equivalent to
premeditation or deliberation.” With this omission, the jury is at least left with the
unalloyed instruction that the lying-in-wait special circumstance requires a
substantial watching and waiting period; it would not necessarily have to equate
watching and waiting with the time required to premeditate and deliberate, but the
term “substantial” would connote something closer to the classic ambush situation,
in which the murderer not only deliberates but, while watching and waiting, holds
fast to a concealed, murderous purpose for a sustained period. The evidence does
not establish beyond a reasonable doubt that the jury would have found a
substantial period in the present case. (See People v. Flood (1998) 18 Cal.4th 470,
503-504 [instructional error not reversible when the evidence at trial establishes
the error harmless beyond a reasonable doubt].) The evidence showed that
defendant became aware of August, and pursued him, for only a few moments,
and it is not clear beyond a reasonable doubt that a properly instructed jury would
have found this to be a substantial period of watching and waiting. Indeed, there
is insufficient evidence in the record that defendant engaged in a substantial period
of watching and waiting before murdering August.5
5
Justice Werdegar proposes that the lying-in-wait special circumstance be
interpeted to require not simply concealment of purpose but “active deceit . . . — a
misrepresentation or ruse that lulls the victim into a false sense of security” (conc.
opn. of Werdegar, J., ante, at p. 1), and that such limiting construction would
insulate that special circumstance from a constitutional challenge. Assuming she
(footnote continued on next page)
14
I do not deny that defendant’s murder of August alone — a random, callous
act of killing — could under some theory be viewed as a particularly heinous
murder making defendant eligible for the death penalty. But lying in wait is not
what made that murder heinous. I would therefore reverse the lying-in-wait
special circumstance as to the August murder, but would otherwise uphold
defendant’s capital sentence based on the multiple-murder special circumstance
and the fact that the jury could still properly consider the aggravated
circumstances of the August murder at the penalty phase of the trial. (See Brown
v. Sanders (2006) 546 U.S. 212, __ [126 S.Ct. 884, 893-894].)
MORENO, J.
(footnote continued from previous page)
is correct, such construction would not save the lying-in-wait finding in the
present case. The jury was not instructed on active deceit, and although some
parts of the instruction could lead jurors to believe that active deceit was required,
the part of the instruction incorporating Morales makes clear that concealment of
purpose alone, together with the two other factors discussed above, would suffice
to find lying in wait. (See Morales, supra, 48 Cal.3d at p. 555.) Nor is it clear
beyond a reasonable doubt that the jury would have found active deceit in the
present case had it been instructed in that requirement. Defendant’s act of pulling
up alongside Stokes, and briefly motioning at and smiling at him, is hardly
evidence beyond a reasonable doubt of an active deceit that is distinguishable from
mere concealment of purpose. (Cf. People v. Sims, supra, 5 Cal.4th at p. 433
[lying-in-wait special circumstance found where murderers lured pizza delivery
man to motel room by ordering pizza].)
15
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Stevens
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S034704
Date Filed: June 4, 2007
__________________________________________________________________________________
Court: Superior
County: Alameda
Judge: William R. McGuiness
__________________________________________________________________________________
Attorneys for Appellant:
Richard I. Targow, under appointment by the Supreme Court, for Defendant and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney
General, Gerald A. Engler, Assistant Attorney General, Ronald S. Matthias, Dane R. Gillette and Seth K.
Schalit, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Richard I. Targow
Post Office Box 1143
Sebastopol, CA 95473
(707) 829-5190
Seth K. Schalit
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5866
Opinion Information
| Date: | Docket Number: |
| Mon, 06/04/2007 | S034704 |
Parties
| 1 | The People (Respondent) Represented by Seth K. Schalit Office of the Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA |
| 2 | The People (Respondent) Represented by Attorney General - San Francisco Office Dane R. Gillette, Senior Assistant 455 Golden Gate Avenue, Suite 11000 San Francisco, CA |
| 3 | Stevens, Charles (Appellant) San Quentin State Prison Represented by Barry M. Karl Attorney at Law 620 Jefferson Avenue Redwood City, CA |
| 4 | Stevens, Charles (Appellant) San Quentin State Prison Represented by Richard I. Targow Attorney at Law P.O. Box 1143 Sebastopol, CA |
| Disposition | |
| Jun 4 2007 | Opinion: Affirmed |
| Dockets | |
| Jul 30 1993 | Judgment of death |
| Aug 30 1993 | Filed cert. copy of Judgement of Death Rendered 7-30-93. |
| Apr 3 1995 | Change of Address filed for: respondent (Attorney General's San Francisco office) |
| Sep 2 1998 | Compensation awarded counsel |
| Sep 2 1998 | Counsel appointment order filed Upon request of appellant for appointment of counsel, Richard I. Targow is hereby appointed to represent appellant Charles Stevens for the direct appeal in the above automatic appeal now pending in this court. |
| Oct 9 1998 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Oct 13 1998 | Extension of Time application Granted To 12-07-98 To request Record correction |
| Dec 4 1998 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Dec 11 1998 | Extension of Time application Granted To 2-5-99 To request Record correction |
| Feb 3 1999 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Feb 4 1999 | Extension of Time application Granted To 4-6-99 To request Record correction |
| Apr 1 1999 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Apr 12 1999 | Extension of Time application Granted To 6-7-99 To request Record correction |
| Apr 13 1999 | Counsel appointment order filed Upon request of appellant for appointment of counsel, Barry M. Karl is hereby appointed to represent appellant Charles Stevens for habeas corpus/executive clemency proceedings related to the above automatic appeal now pending in this court. |
| May 27 1999 | Change of Address filed for: respondent (Attorney General's San Francisco office) |
| Jun 4 1999 | Application for Extension of Time filed By Applt to request Record correction |
| Jun 18 1999 | Extension of Time application Granted To 8-9-99 To request Record correction |
| Jun 30 1999 | Compensation awarded counsel Counsel Targow |
| Jul 16 1999 | Compensation awarded counsel Counsel Karl |
| Aug 10 1999 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Aug 17 1999 | Extension of Time application Granted To 10-08-99 To request Record correction |
| Sep 7 1999 | Compensation awarded counsel |
| Oct 8 1999 | Application for Extension of Time filed By Applt to request Corr. of the Record. |
| Oct 18 1999 | Compensation awarded counsel Atty Karl |
| Oct 18 1999 | Extension of Time application Granted T0 12/8/99 to Applt to request Corr. of the Record |
| Dec 8 1999 | Application for Extension of Time filed By Applt to request Corr. of the Record. |
| Dec 15 1999 | Compensation awarded counsel Atty Karl |
| Dec 23 1999 | Extension of Time application Granted To 2/7/2000 To Applt To request Corr. of the Record. no further Extensions of time will be Granted. |
| Feb 9 2000 | Received: Applt's First motion to Augment and Corr. the Record on Appeal |
| Feb 14 2000 | Compensation awarded counsel Atty Targow |
| Feb 16 2000 | Compensation awarded counsel Atty Karl |
| May 10 2000 | Compensation awarded counsel Atty Karl |
| Jul 10 2000 | Filed: appellant's request for stay of certification by the superior court (by July 13, 2000) and for reversal of denial of motion to augment and correct the record on appeal. |
| Jul 14 2000 | Order filed: Appellant's request for a stay of record certification proceedings is denied. Appellant's request for reversal of the trial court's denial of his motion to augment and correct the record on appeal is denied without prejudice to a motion for judicial notice of court records relevant to the issues of appeal, which motion may be filed in this court after the certification of the record. |
| Jul 20 2000 | Compensation awarded counsel Atty Karl |
| Aug 10 2000 | Record on appeal filed C-57 (15,357 pp.) and R-51 (7,372 pp.) including material under seal; Clerk's Transcript includes 13,624 pages of Juror Questionnaires. |
| Aug 10 2000 | Appellant's opening brief letter sent, due: 9/19/2000 |
| Aug 14 2000 | Counsel's status report received (confidential) from atty Targow. |
| Sep 5 2000 | Filed: applt's request for reversal of [trial court's] denial of motion to augment and correct the record. |
| Sep 13 2000 | Compensation awarded counsel Atty Karl |
| Sep 19 2000 | Application for Extension of Time filed To file AOB. (1st request) |
| Sep 20 2000 | Extension of Time application Granted To 11/20/2000 to file AOB. |
| Oct 12 2000 | Counsel's status report received (confidential) from atty Karl. |
| Nov 21 2000 | Application for Extension of Time filed To file AOB. (2nd request) |
| Nov 29 2000 | Extension of Time application Granted To 1/19/2001 to file AOB. |
| Dec 13 2000 | Counsel's status report received (confidential) from atty Karl. |
| Dec 20 2000 | Counsel's status report received (confidential) from atty Targow. |
| Feb 2 2001 | Application for Extension of Time filed To file AOB. (3rd request) |
| Feb 5 2001 | Extension of Time application Granted To 3/20/2001 to file AOB. |
| Feb 15 2001 | Counsel's status report received (confidential) from atty Karl. |
| Mar 14 2001 | Compensation awarded counsel Atty Karl |
| Mar 20 2001 | Counsel's status report received (confidential) from atty Targow. |
| Mar 20 2001 | Application for Extension of Time filed To file AOB. (4th request) |
| Apr 13 2001 | Counsel's status report received (confidential) |
| Apr 17 2001 | Letter sent to: attorney Targow regarding appellant's Request for Reversal of Denial of Motion to Augment and Correct the Record on Appeal, filed Sept. 5, 2000, and the current briefing schedule. |
| Apr 20 2001 | Filed: Supplemental declaration in support of application dated 3/19/2001 for extension of time to file AOB. |
| Apr 30 2001 | Extension of Time application Granted To 5/21/2001 to file AOB. |
| May 21 2001 | Counsel's status report received (confidential) from atty Targow. |
| May 21 2001 | Application for Extension of Time filed To file AOB. (5th request) |
| Jun 1 2001 | Extension of Time application Granted To 6/20/2001 to file AOB. |
| Jun 12 2001 | Counsel's status report received (confidential) from atty Targow. |
| Jun 20 2001 | Application for Extension of Time filed to file AOB. (6th request) |
| Jul 2 2001 | Filed: supplemental declaration of attorney Targow in support of applic. for extension of time to file AOB. |
| Jul 9 2001 | Extension of Time application Granted To 7/20/2001 to file AOB. |
| Jul 20 2001 | Counsel's status report received (confidential) from atty Targow. |
| Jul 20 2001 | Application for Extension of Time filed To file AOB. (7th request) |
| Aug 1 2001 | Extension of Time application Granted To 9/18/2001 to file AOB. No further extensions of time are contemplated. |
| Aug 13 2001 | Counsel's status report received (confidential) from atty Karl. |
| Sep 18 2001 | Counsel's status report received (confidential) from atty Targow. |
| Sep 18 2001 | Application for Extension of Time filed To file AOB. (8th request) |
| Sep 21 2001 | Extension of Time application Granted To 11/19/2001 to file AOB. No further extensions of time will be granted. |
| Oct 12 2001 | Counsel's status report received (confidential) from atty Karl. |
| Nov 19 2001 | Counsel's status report received (confidential) from atty Targow. |
| Nov 26 2001 | Extension of time denied to file AOB. |
| Nov 28 2001 | Request Denied Appellant's "Request for Reversal of Denial of Motion to Augment and Correct the Record on Appeal," filed 9-5-2000, is denied. Chin, J., was absent and did not participate. |
| Dec 12 2001 | Counsel's status report received (confidential) from atty Karl. |
| Jan 16 2002 | Compensation awarded counsel Atty Karl |
| Jan 23 2002 | Counsel's status report received (confidential) from atty Targow. |
| Feb 15 2002 | Counsel's status report received (confidential) from atty Karl. |
| Mar 18 2002 | Counsel's status report received (confidential) from atty Karl. |
| Mar 19 2002 | Counsel's status report received (confidential) from atty Targow. |
| Apr 12 2002 | Counsel's status report received (confidential) from atty Karl. |
| May 20 2002 | Counsel's status report received (confidential) from atty Karl. |
| Jun 3 2002 | Counsel's status report received (confidential) from atty Targow. |
| Jun 18 2002 | Counsel's status report received (confidential) from atty Karl. |
| Jul 24 2002 | Counsel's status report received (confidential) from atty Targow. |
| Jul 31 2002 | Change of Address filed for: Applt. counsel Barry M. Karl. |
| Aug 1 2002 | Letter sent to: attorney Targow regarding default for failure to file AOB. The court expects him to submit AOB, together with an application for relief from default, no later than 8-30-2002. Counsel to respond by return mail indicating that he will comply. |
| Aug 1 2002 | Filed: Supplemental proof of service of notice of change of address for atty. Karl. |
| Aug 6 2002 | Received letter from: atty Targow in response to court's letter of 8-1-2002. |
| Aug 13 2002 | Counsel's status report received (confidential) from atty Karl. |
| Sep 3 2002 | Filed: appellant's application for relief from default to file AOB. (brief submitted under separate cover) |
| Sep 3 2002 | Order filed granting application of appellant for relief from default to file AOB. |
| Sep 3 2002 | Appellant's opening brief filed (180 pp.) |
| Sep 19 2002 | Compensation awarded counsel Atty Targow |
| Sep 30 2002 | Request for extension of time filed To file respondent's brief. (1st request) |
| Oct 4 2002 | Extension of time granted To 12/2/2002 to file respondent's brief. |
| Oct 15 2002 | Counsel's status report received (confidential) by attorney Karl. |
| Nov 15 2002 | Respondent's brief filed (88 pp.) |
| Nov 20 2002 | Filed: Amended declaration of service of respondent's brief. |
| Dec 5 2002 | Request for extension of time filed To file appellant's reply brief. (1st request) |
| Dec 6 2002 | Extension of time granted To 2/3/2003 to file appellant's reply brief. |
| Dec 12 2002 | Counsel's status report received (confidential) from atty Karl. |
| Jan 16 2003 | Counsel's status report received (confidential) from atty Targow. |
| Feb 3 2003 | Request for extension of time filed to file appellant's reply brief. (2nd request) |
| Feb 10 2003 | Extension of time granted to 4/4/2003 to file appellant's reply brief. Extension is granted based upon counsel Richard I. Targow's representation that he anticipates filing that brief by 4/4/2003. After that date, no further extension is contemplated. |
| Feb 11 2003 | Counsel's status report received (confidential) from atty Karl. |
| Apr 8 2003 | Appellant's reply brief filed (23 pp. - per rule 40(k)) |
| Apr 15 2003 | Counsel's status report received (confidential) from atty Karl. |
| Apr 17 2003 | Compensation awarded counsel Atty Targow |
| Jun 11 2003 | Counsel's status report received (confidential) from atty Karl. |
| Jun 27 2003 | Filed: Declaration of attorney Barry M. Karl (confidential). |
| Jun 27 2003 | Compensation awarded counsel Atty Karl |
| Aug 21 2003 | Counsel's status report received (confidential) from atty Karl. |
| Sep 29 2003 | Related habeas corpus petition filed (concurrent) No. S119354 |
| Oct 21 2003 | Compensation awarded counsel Atty Karl |
| Oct 28 2003 | Compensation awarded counsel Atty Karl |
| Dec 4 2003 | Compensation awarded counsel Atty Karl |
| Dec 17 2003 | Filed: Declaration of attorney Barry M. Karl for fixed fee progress payment IV (confidential). |
| Jan 6 2004 | Compensation awarded counsel Atty Karl |
| Apr 27 2005 | Filed: Application for permission to file supplemental brief. (13 pp. - 2663 word brief submitted under separate cover) |
| May 2 2005 | Order filed Appellant's application for permission to file supplemental brief is granted. Any supplemental respondent's brief is to be served and filed on or before May 31, 2005. Any supplemental reply brief is to be served and filed on or before June 20, 2005. |
| May 2 2005 | Supplemental brief filed appellant's. (13 pp. - 2663 words) |
| Jun 17 2005 | Request for extension of time filed to file supplemental reply brief. (1st request) |
| Jun 21 2005 | Extension of time granted to 7/5/2005 to file the supplemental reply brief. Extension is granted based upon counsel Richard I. Targow's representation that he anticipates filing that brief by 7/5/2005. After that date, no further extension will be granted. |
| Jul 5 2005 | Note: received appellant's supplemental reply brief; the declaration of service indicates that AOB was served. Counsel notified by telephone to submit corrected declaration of service. |
| Jul 6 2005 | Supplemental reply brief filed (AA) by appellant. (1,237 words; 6 pp.) |
| Jul 6 2005 | Filed: corrected declaration of service of appellant's supplemental reply brief. |
| Nov 1 2006 | Exhibit(s) lodged People's 6A, 6B, 7B, 7C, 14C, 14D, 25C, 39A, 39B, 91A, 111, 112, 112A, 113, 113A, 116, 116A, 116B and 116C. Defendant's OO, OO-1, PP, PP-1, QQ and QQ-1. |
| Nov 15 2006 | Exhibit(s) lodged People's 88A-C, 89A-J and 108 |
| Nov 30 2006 | Oral argument letter sent advising counsel that the case could be scheduled for argument as early as the late January calendar, to be held the week of January 29, 2007, in Sacramento. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument. |
| Dec 1 2006 | Received: letter from attorney Richard I. Targow, dated November 30, 2006, requesting oral argument be delayed until April calendar. |
| Jan 17 2007 | Received: letter from atty Richard Targow, dated January 13, 2007, re "Notice of Unavailability of Counsel," during the period of January 30 through February 12, 2007. |
| Feb 2 2007 | Received: letter from Deputy Attorney General Seth K. Schalit, dated February 2, 2007, advising that he is now the attorney of record (for respondent). |
| Feb 8 2007 | Case ordered on calendar to be argued Wednesday, March 7, 2007, at 1:30 p.m., in San Francisco |
| Feb 22 2007 | Filed letter from: Supv. Deputy Atty. General Seth K. Schalit, dated February 22, 2007 re focus issues for oral argument. |
| Feb 26 2007 | Received: appellant's auditional authorities for oral argument. |
| Feb 27 2007 | Filed letter from: atty Richard I. Targow, dated February 23, 2007, re focus issues for oral argument. |
| Feb 27 2007 | Received: "Amended Declaration of Service by Mail" of addtional authorities for oral argument. |
| Mar 7 2007 | Cause argued and submitted |
| Mar 19 2007 | Compensation awarded counsel Atty Targow |
| Apr 16 2007 | Exhibit(s) lodged Defendant's A. |
| Jun 1 2007 | Notice of forthcoming opinion posted |
| Jun 4 2007 | Opinion filed: Judgment affirmed in full Majority Opinion by Corrigan, J. -----joined by George, C.J., Baxter, Werdegar, & Chin, JJ. Concurring Opinion by Werdegar, J. C&D Opinion by Kennard, J. C&D Opinion by Moreno, J. |
| Jun 18 2007 | Time extended to consider modification or rehearing The finality of the opinion in the above-entitled case is hereby extended to and including August 31, 2007. |
| Aug 27 2007 | Received: Letter dated August 22, 2007 from U.S.S.C. application for extension of time to file a petition for writ of certiorari granted until November 1, 2007. |
| Sep 4 2007 | Remittitur issued (AA) |
| Sep 6 2007 | Received: receipt for remittitur acknowledged by superior court. |
| Sep 6 2007 | Exhibit(s) returned to superior court. |
| Sep 11 2007 | Received: acknowledgment of receipt of exhibits. |
| Sep 19 2007 | Order filed (150 day statement) |
| Nov 13 2007 | Received: letter from U.S.S.C. dated and placed on docket November 6, 2007; advising cert petition filed on November 1, 2007 as No. 07-7499. |
| Jan 7 2008 | Certiorari denied by U.S. Supreme Court |
| Apr 30 2008 | Motion filed (AA confidential) |
| May 30 2008 | Filed: "supplement" to pro se motion filed on April 30, 2008. (confidential) |
| Oct 16 2008 | Motion denied (confidential) |
| Jun 8 2009 | Received: pro se "amended" petition for writ of habeas corpus from Stevens. |
| Jun 29 2009 | Note: pro se amended petition for writ of habeas corpus received on June 8, 2009, returned to Stevens, unfiled. |
| Sep 2 2009 | Motion filed (AA confidential) pro per "Deutscher/Marsden motion to dismiss habeas corpus counsel, to include issues omitted" |
| Briefs | |
| Sep 3 2002 | Appellant's opening brief filed |
| Nov 15 2002 | Respondent's brief filed |
| Apr 8 2003 | Appellant's reply brief filed |
