IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S031423
v.
GREGORY ALLEN STURM,
) Orange
County
Defendant and Appellant.
Super. Ct. No. C-82847
A jury convicted defendant Gregory Allen Sturm of the first degree
murders of Darrell Esgar, Chad Chadwick, and Russell Williams (Pen. Code,
§ 187),1 among other offenses, and found true the special circumstance allegations
that defendant committed multiple murders (§ 190.2, subd. (a)(3)) and that each
murder was committed during the commission of a robbery (§§ 190.2, subd.
(a)(17)(i), 211). After a penalty phase mistrial, a second jury determined that the
death penalty should be imposed. This appeal from the resulting judgment is
automatic. (§ 1239, subd. (b).) For the reasons that follow, we affirm defendant’s
convictions, but reverse the death sentence.
1
All further undesignated statutory references are to the Penal Code.
1
I. FACTS
A. Procedural History
On April 15, 1992, the Orange County District Attorney filed an eight-
count first amended information charging defendant with three counts of first
degree murder (of Darrell Esgar, Chad Chadwick and Russell Williams,
respectively) in violation of section 187, one count of burglary in violation of
section 459, three counts of robbery (of Esgar, Chadwick and Williams,
respectively) in violation of section 211, and one count of attempted escape by a
prisoner in violation of section 4532, subdivision (b).
It was further alleged that defendant personally used a firearm in the
commission of the murders and robberies in violation of section 12022.5, that
defendant committed the murders while in the commission of second degree
burglary and robbery in violation of sections 190.2, subdivision (a)(17)(vii) and
(i), 211, and 460, and that defendant committed multiple first degree murders in
violation of section 190.2, subdivision (a)(3).
Defendant pled guilty to the attempted escape charge and not guilty to the
remaining charges. On May 8, 1992, the jury returned guilty verdicts on all
counts, and found true the weapon-use allegation and all special circumstance
allegations. The jury did not return a verdict finding whether defendant
committed premeditated and deliberate first degree murder. The penalty phase of
the trial commenced, but on June 10, 1992, the jury announced it could not reach a
penalty verdict and the court declared a mistrial. A poll of the jury indicated that
the jurors were split 10 to 2, with the majority favoring a sentence of life without
the possibility of parole.
A second penalty phase jury trial began on October 20, 1992. On
November 23, 1992, the jury determined that the death penalty should be imposed.
The trial court sentenced defendant to death for the murders, and imposed a two-
2
year sentence for the attempted escape and a four-year penalty enhancement for
the use of a firearm during the murder of Esgar. Pursuant to section 654, the court
stayed the remaining weapon-use enhancement related to the robbery counts and
the other murder counts, pending the death sentence being carried out. This
appeal is automatic.
B. Guilt Phase Evidence
1. Prosecution Evidence
On August 20, 1990, police officers discovered the bodies of employees
Darrell Esgar, Chad Chadwick and Russell Williams in the Super Shops
automotive store in Tustin, California. It was later determined that $1,103.56 had
been stolen from the store.
An autopsy revealed that Chadwick had a defensive bullet entry wound on
the palm of his left hand, and a re-entry wound in the right side of his head.
Williams had two gunshot wounds to his head and had bite marks on his tongue,
which indicated that he had bitten his tongue before he was shot. Esgar had one
gunshot wound to the left side of his head.
After hearing about the murders, Laurie Stevenson called her friend John
Orr, a reserve police officer for the Garden Grove Police Department, informing
him that her roommate, Rick LaBare, had loaned defendant two guns the day
before the bodies were discovered. Orr telephoned the Tustin police with the
information.
LaBare, a former salesman at Super Shops, was friendly with defendant,
and they used cocaine together quite often. Defendant had worked at Super Shops
until August of 1990; his behavior at work had been rather erratic, and he had
been chronically tardy.
On August 19, 1990, LaBare had loaned defendant a .38-caliber revolver
and a shotgun. Defendant had told LaBare that he wanted to borrow the guns to
3
go shooting in the desert near Barstow. That same day, Robert Paleno, who was
advertising his motorcycle for sale for $5,000, received a phone call from
defendant regarding the motorcycle. While looking at the motorcycle, defendant
mentioned that he worked at Super Shops. He later told Paleno that he would be
back that evening with cash to purchase the motorcycle.
The day the three victims’ bodies were discovered, LaBare asked defendant
to return the guns and defendant promptly complied. LaBare then contacted the
Tustin police, expressing concern that defendant was involved in the Super Shops
murders, and voluntarily gave the guns to the police. Ballistics tests revealed that
the revolver defendant borrowed from LaBare was the murder weapon.
Police first interviewed defendant on August 21, 1990. He denied having
any involvement in either the murders or the robbery, but did admit that he had
gone to Super Shops that day. Defendant was not placed under arrest at that time.
Tustin Police Officer Nancy Rizzo executed a warrant to search the
apartment where defendant lived and police officers found a gold T-shirt and a
pair of shorts that both had blood on them. Subsequent tests determined that the
blood could only have come from Esgar. In addition, a bill from a jewelry store
with defendant’s address on it was found at the crime scene.
On August 23, 1990, defendant climbed over the fence of Randy Dusseau’s
yard in Riverside. Dusseau saw him and asked John Hauver, one of several tree
trimmers working at that property, to pursue defendant. Hauver chased defendant
on foot for more than two hours, and finally found him hiding underneath a trailer.
Hauver stayed with defendant until the police arrived. While under the trailer,
defendant began crying and told Hauver that he had not committed the murders.
Hauver had not mentioned the murders.
Following his arrest, defendant gave a videotaped interview and “walk-
through” of the crimes. At first, defendant attempted to implicate a Mexican drug
dealer named “John Davis” in the murders, claiming that Davis had committed the
4
robbery and that defendant had assisted him in exchange for cocaine. However,
after police indicated that they did not believe defendant’s version of events,
defendant confessed to committing the robberies and murders.
In an interview with Detective Nasario Solis, defendant indicated that, on
the night of the murders, he had stayed in the Super Shops after closing, telling his
friends working there that he wanted to buy some car parts. He then pulled out a
gun, but the victims did not think he was being serious. After he made the three
victims open the safe in the back of the store, defendant became scared and made
Esgar use tape to bind the hands and feet of the other two victims, and then bind
his own hands.
Defendant turned to leave, and his gun went off. He returned to where the
three victims were, and Chadwick told him it was “not too late.” Defendant shot
Chadwick. Esgar started crying and said: “Oh, my God.” Defendant then shot
Williams. Esgar repeated the phrase, “oh, my God” with his head down, and
defendant shot him. Defendant walked away, grabbed the money out of an open
cash register, and rode away on his bicycle.
On November 29, 1990, after his arrest, defendant was transferred to
Western Medical Center in Anaheim to have his ankle X-rayed. Defendant
required a wheelchair to get around the hospital. At one point, defendant said to
one of the transporting deputies: “Guess I won’t try to escape because you will
probably shoot me.” After having a half-cast put on his leg, defendant was
required to use crutches. While at the hospital, defendant attempted to escape by
throwing away his crutches and running outside the building, where he was
apprehended.
2. Defense Evidence
During the opening and closing statements of the guilt phase trial, defense
counsel conceded that defendant killed the victims, but argued that defendant was
5
guilty of first degree felony murder and was not guilty of premeditated and
deliberate murder. The focus of the defense case was to provide evidence of
defendant’s cocaine addiction, in order to show that his prolonged drug use had
affected his ability to premeditate the crimes. Defendant did not testify on his own
behalf.
Randy Pettit, one of the tree trimmers present when defendant was
apprehended three days after the victims’ bodies were found, testified that
defendant exhibited symptoms of a person “coming down” from drugs. Pettit was
able to identify the symptoms, which included defendant engaging in disjointed
conversation and staring into space, because he was a former drug addict.
A deputy sheriff present at the hospital when defendant attempted to escape
from custody testified that, after defendant was apprehended, defendant expressed
disappointment that he had not been shot.
A manager of the Super Shops store, Courtney Maxwell, had socialized
with defendant outside of work. Maxwell had occasionally overheard
conversations between defendant and another Super Shops employee about using
cocaine. Maxwell also had observed defendant in the parking lot of the Garden
Grove Super Shops store with a bag of what appeared to be white powder. In
Maxwell’s opinion, defendant had a drug problem.
Defense counsel also elicited testimony from Larry Stein, Ph.D., chairman
of the Department of Pharmacology at the University of California at Irvine
College of Medicine, as to how stimulants such as cocaine affect the brain and
behavior. According to Dr. Stein, cocaine initially produces positive feelings in a
user. However, chronic cocaine use greatly increases a user’s anxiety level, and
results in heightened focus on obtaining and using cocaine. Dr. Stein further
testified that chronic stimulant use also may predispose a user to commit violent
acts, including homicide.
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C. Penalty Phase Evidence
1. Prosecution
Evidence
Because the second penalty phase jury had not been present at the guilt
phase, the prosecution introduced evidence of the underlying crimes, including a
description of the crime scene, the autopsies of the victims, and ballistic analysis.
The prosecution also presented evidence of defendant’s cocaine use similar to that
introduced in the guilt phase, evidence of defendant’s attempt to purchase a
motorcycle, interviews given to police by defendant, and testimony by defendant’s
former supervisor.
The prosecution also presented seven victim-impact witnesses: Sharon
Chadwick (Chad Chadwick’s mother), Leslie McLeod (Chad Chadwick’s
girlfriend), Clayton Esgar (Darrell Esgar’s father), Gina Whitmeyer (Darrell
Esgar’s girlfriend), Linda Esgar (Darrell Esgar’s mother), Grace West (Russell
Williams’s grandmother), and Melinda Williams (Russell Williams’s mother).
The victim-impact witnesses largely testified to the emotional impact that the
victims’ death had upon them, and described the positive personal characteristics
of each victim.
2. Defense
Case
Numerous witnesses, including friends, neighbors, and teachers, testified on
defendant’s behalf that he was well-liked, was considered to be a helpful person
and a good worker, and was like family to many people. A family friend and
neighbor, who felt that defendant had been unhappy at home, had considered
adopting defendant. Many witnesses testified that they would be devastated if he
were given the death penalty.
Witnesses also testified that defendant had been on the cheerleading squad
in high school, and that he was supportive, friendly, helpful, and well-liked by the
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other cheerleaders. The coach of the cheerleading squad testified that defendant,
who was always polite and cooperative, had been a pleasure to have on the squad.
Defendant’s kindergarten teacher, Laura Kennelly, testified that defendant
had been immature and ill-prepared for kindergarten. Defendant was not ready for
academic work, and was often unkempt. Although she had recommended to
defendant’s mother that he be held back, defendant had been advanced anyway.
Sam Ruiz, who had been defendant’s Little League coach when defendant
was 13-15 years old, testified that defendant became angry with himself when he
made a mistake, and was often overly self-critical. Ruiz visited defendant’s home
to speak with defendant’s mother about this behavior, but the conversation had
been interrupted by defendant’s mother’s boyfriend, Tom Sturm, who became
very angry at defendant.
Several witnesses also described the mistreatment of defendant by Tom
Sturm. Tom Sturm was not affectionate to defendant, and frequently cursed at
him and called him names, beginning when defendant was a young child.
Witnesses also testified to seeing Tom Sturm hit defendant. Tom Sturm rarely
participated in holiday celebrations, and defendant’s older sister, Heidi Sturm,
could not remember him ever buying a Christmas present for defendant.
Heidi Sturm testified at length. Tom Sturm often yelled at defendant, and
began hitting defendant when he was a toddler. He often restricted defendant to
his room for two- to five-day periods, and only allowed defendant to leave to eat
and to use the bathroom; this occurred when defendant was three or four years old.
Tom Sturm spanked defendant on a near-daily basis, hitting him with pieces of
wood, a belt, fishing poles, and a paddle that had been made for the purpose of
spanking defendant and his siblings.
Heidi Sturm also testified that when she was 15 years old, defendant saw
Tom Sturm touching her breasts and putting his hand down her pants. Heidi
Sturm had a good relationship with defendant, who protected her once when she
8
was being threatened by several males. She further testified that she would feel
empty were her brother to be given the death penalty.
Della Garrett, defendant’s grandmother, also testified about defendant’s
relationship with Tom Sturm. She had never seen Tom Sturm display any
affection toward defendant, and had seen defendant confined to his room. Tom
Sturm told Della Garrett that she and her husband were not welcome in his house,
and that she was not to buy gifts for the children. Defendant, as well as the rest of
the Sturm family, acted differently when Tom Sturm was at home than when he
was not present. Della Garrett testified that were defendant to be given the death
penalty, she would feel as if she had lost everything. Irridell Garrett, defendant’s
grandfather, testified that he loved defendant and would be very hurt were
defendant to be given the death penalty.
Errol Medeiros, defendant’s biological father, testified that when he and
defendant’s mother separated, he did not know that she was pregnant with
defendant. Errol Medeiros moved to Virginia in 1970, and did not have any
contact with defendant until 1985, when defendant’s mother called him to ask if
defendant could live with him in Virginia. Defendant had been kicked out of the
house, and Errol Medeiros was happy to have defendant move in with him.
Defendant got along well with Errol Medeiros’s other sons, and formed close
relationships with them.
Cindy Medeiros, Errol’s wife, also testified about the period when
defendant lived with them in Virginia, noting that defendant did his chores well.
She stayed in touch with defendant, and said that she would feel like she lost a son
if defendant were to be sentenced to death.
Cathy Mickey met defendant when he was 13 years old through Little
League baseball; her husband was president of the league. Several years later,
defendant moved into the Mickeys’ house. He had been living in his car prior to
that. Defendant lived with the Mickeys for four or five months. He did work
9
around the house, and caused no trouble while he lived there. David Mickey also
testified that defendant caused no trouble at the house, and did many voluntary
chores. Defendant also umpired Little League games for free, and was a good
umpire.
Several witnesses testified that defendant used cocaine in 1989-1990.
Courtney Maxwell testified that he saw defendant under the influence of cocaine
three or four times, and had seen him with a bag of white powder. Rick LaBare
testified that he used cocaine with defendant two or more times a week for a few
months, and that defendant appeared to use a growing amount, increasing his use
from four to five lines of cocaine per night to more than seven lines of cocaine per
night in August 1990. According to another witness, defendant used large
amounts of cocaine as early as 5:00 a.m. and even when police officers were near.
Deputy Sheriff Sheldon Berg testified that on November 30, 1990,
defendant tried to escape from custody. Berg chased and tackled defendant, who
told Berg that he wished officers had shot him. Susan Webster, a registered nurse
at the Orange County jail, testified that defendant expressed some desire to kill
himself, and that she had recommended that defendant be placed in the mental
health ward because he was depressed and suicidal. Defendant expressed remorse
for the crimes that he had committed.
Deputy Sheriff David Albert testified that defendant volunteered to help
with cleaning duties when he was in county jail awaiting trial, and never caused
trouble with other inmates and deputies. Deputy Sheriff John Sprague met
defendant when defendant was in isolation because of his escape attempt. Sprague
spoke with defendant for a while because defendant was crying and was very
upset; defendant expressed remorse for his crimes. During the six months Sprague
was assigned to defendant’s module, defendant never gave him any trouble or
caused any trouble with other inmates. The head of the Prison Ministry at Calvary
Chapel Church testified that he had monthly meetings with defendant, and that
10
defendant expressed remorse and repentance for his crimes, and cried when they
spoke about the crimes.
Dr. Larry Stein, the chairman of the Department of Pharmacology at the
College of Medicine at University of California at Irvine, testified at length about
the general effects of cocaine abuse. Dr. Stein based his testimony on animal
studies. He explained that cocaine overstimulates the movement, sensory, and
aggression systems of the body, and that such overstimulation predisposes the
cocaine user to violence.
In addition, Dr. Stein explained that the positive feelings of early cocaine
use are replaced in the chronic cocaine user by anxiety, extreme euphoria, and a
total disregard for anything but obtaining cocaine. Severe cocaine abuse acutely
impairs a person’s ability to judge the consequences of his actions, and also lowers
impulse control. Although addiction to cocaine may lead addicts to lose their jobs,
families, and health, the need for cocaine is so great that addicts often ignore these
negative consequences. A person who stops taking cocaine goes through a “crash
phase” in which he or she experiences depression, fatigue, sleepiness, and extreme
hunger.
Dr. Susan Fossum, a clinical psychologist, performed a social history of the
Sturm family based upon interviews with defendant, Linda Sturm, Heidi Sturm,
other family members, and neighbors, and her review of records related to the
family. In her opinion, defendant’s family constituted a “malignant family
system,” which, as defined by Dr. Fossum, is much worse than a dysfunctional
family; malignancy often involves criminal activities within the family and may
involve life-threatening situations for the family members, especially for
developing children.
Dr. Fossum opined that, in a malignant family system, there is usually an
“identified problem,” a person whom the parents usually blame for the family’s
difficulties. Defendant was the “identified problem” in the Sturm household, and
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therefore when Tom Sturm attempted to dominate the household with violence,
most of his anger was directed at defendant.
In addition, Dr. Fossum testified that “shifting coalitions,” in which a
parent sometimes sides with one of the children and at other times sides with the
other parent, occurred in the Sturm family, giving the children mixed messages as
to whether Tom Sturm’s violent behavior was acceptable. Also, because the
Sturm children mistakenly believed that Tom Sturm was married to their mother,
his status as their “stepfather” gave his actions greater authority. In trying to
convince defendant that the abuse by Tom Sturm was his own fault, Linda Sturm
distorted defendant’s sense of reality.
On the basis of her interviews and the tests administered on defendant, Dr.
Fossum diagnosed him as follows: between the ages of six and 13, defendant
suffered from chronic childhood depression, developmental reading disorder,
developmental writing disorder, and undifferentiated attention deficit disorder.
Defendant was first exposed to drugs when he was 13 or 14 years old, and was
dependent upon cocaine between the ages of 14 and 18 years. Between the ages
of 18 and 20 years, defendant had recurrent major depression and continued
cocaine dependence; additionally, defendant had borderline personality disorder.
In Dr. Fossum’s opinion, defendant began taking cocaine to medicate the ongoing
depression that had originated when he was a small child.
II. DISCUSSION
All of defendant’s claims relate to the validity of his death sentence; he
does not contest his convictions for the murders and related crimes. Accordingly,
we affirm defendant’s convictions.
Defendant asserts that numerous instances of reversible error occurred at
his penalty phase trial, including judicial misconduct. After examining the unique
facts of this case, we agree that the trial judge made inaccurate statements that
prejudiced defendant and committed misconduct by persistently making
12
inappropriate and disparaging comments directed toward defense counsel and
defense expert witnesses during the second penalty phase trial, and that these
errors require reversal of the death sentence. Our conclusion makes it unnecessary
to address defendant’s other claims.
Defendant claims that the trial judge: (1) led the jury to believe erroneously
that defendant had been convicted of willful, premeditated, and deliberate murder;
(2) belittled crucial defense expert witnesses and hamstrung their testimony; and
(3) repeatedly disparaged defense counsel, to the extent that the trial judge gave
the jury the impression that he was aligned with the prosecution. Defendant seeks
reversal of the penalty verdict due to the asserted prejudice he suffered from the
cumulative effect of these errors.
We agree with defendant that, taken together, it is reasonably probable that
the combined effect of these errors had a prejudicial effect on the penalty phase.
While some of the judge’s remarks were innocuous, and while we disagree with
certain of defendant’s challenges to evidentiary rulings, the trial judge made
comments in front of the jury that constituted misconduct at several crucial
instances. These errors were sufficiently severe and pervasive that it was
reasonably probable that the errors affected the jury’s deliberations to defendant’s
detriment.
A. Comment that Premeditation Was a “Gimme”
In his initial comments to the panel of prospective jurors for the second
penalty phase trial, the trial judge generally explained the procedure for a penalty
phase trial, and outlined the jury’s responsibilities. In attempting to explain to the
prospective jurors the importance of special circumstances in a penalty phase trial,
the trial court noted that not all persons convicted of first degree murder are
eligible for death: “If you say fine, first degree and I would go ahead and
automatically in every case basically if the first degree killing if it’s premeditated,
13
deliberate – and that’s a gimme here. If you feel that way and you feel the death
penalty should be imposed, even without the special circumstances, let us know.”
(Italics added.) Later, while questioning Prospective Juror Christine S. about her
juror questionnaire, the trial judge stated that: “You indicate, I believe[] in the
death penalty when it was premeditated murder, that is a gimme. This is
premeditated, all over and done with, so you are in the penalty phase. Do you
understand where we are headed?” (Italics added.)
After this latter comment, defense counsel objected and moved for a
mistrial on the ground that the judge had made an incorrect statement, and had
tainted the panel by implying that defendant had been convicted of premeditated
murder when he had not, in fact, been so convicted. The trial court denied
defendant’s motion for a mistrial, and also declined to instruct the jury, as defense
counsel requested, that defendant had not been “convicted of first degree murder
based upon premeditation and deliberation,” noting that such an instruction would
be “giving a boost to the defense,” and that he was not “going to get into felony
murder, premeditated, to this jury” because “[i]t would only confuse them.”
Defendant contends that the trial judge’s comments in the presence of the
panel were inaccurate because defendant’s conviction contained no explicit
finding on the issue of premeditated murder. The People concede that, at the guilt
phase, the jury did not return a verdict finding defendant to have committed
premeditated and deliberate first degree murder. At the guilt phase, the jury was
given special verdict forms as to two different theories of first degree murder:
felony murder and premeditated murder. The jury returned a finding that
defendant had committed felony murder, but left the premeditated murder verdict
form blank, indicating that the guilt phase jury based the first degree murder
finding on a theory of felony murder.
The People, however, contend that the trial court’s comments were not
directly related to the particulars of defendant’s trial, but were instead attempts by
14
the court to illustrate that a guilty verdict as to first degree murder was, in itself,
insufficient to make the defendant eligible for the death penalty, and that a verdict
finding true a special circumstance was necessary to render defendant eligible for
the death penalty. We reject the People’s defense of these improper comments.
Neither of the trial judge’s comments specified that he was speaking in
hypothetical terms. Rather, his statements linked the finding of premeditation to
the instant case; his statement that “this is premeditated, all over and done with”
indicated that the reference to premeditation was more than merely hypothetical,
but was related to the particular case at bar.
The trial judge’s comments regarding premeditation are especially
troubling, given that a lack of premeditation was a central theory supporting the
defense case in mitigation. Here, the guilt phase jury was unable to reach a
decision on the question of whether the murders were premeditated, yet the trial
judge’s presentation of the issue as being “over and done with” effectively
removed the issue of premeditation, or lack thereof, from the jury’s consideration
at the second penalty phase trial. Although the trial judge could have allayed the
damage done to the defense case by advising the venire panel to disregard his
comments, he declined to do so in order to avoid giving a “boost” to the defense,
and never advised the jury that his comments were inaccurate. 2
2
Justice Baxter states that “the majority ignores subsequent steps taken by
the trial court to ensure no impropriety or confusion occurred,” namely that the
trial court advised the prospective jurors to “disregard[ ] the court’s comment
[about premeditation] before.” (Dis. opn., post, at p. 2. ) The trial court’s
disclaimer, however, was insufficient to mitigate the effect of his comments that
premeditation was a “gimme” because he did not tell the jury, as defendant
requested, that his prior comments were inaccurate. Indeed, as the trial judge’s
clarification occurred only after his second comment that premeditation was a
“gimme,” it is quite unlikely that his direction to generally disregard his prior
comment regarding premeditation substantially allayed defendant’s concerns.
15
A trial court may comment on the evidence (Cal. Const., art. VI, §10), but
such comments “must be accurate, temperate, nonargumentative, and scrupulously
fair.” (People v. Rodriguez (1986) 42 Cal.3d 730, 766.) This requirement applies
to judicial comments made during jury selection. (People v. Slaughter (2002) 27
Cal.4th 1187, 1217-1218.) The trial judge’s comments regarding premeditation
were factually inaccurate and severely damaged the defense penalty phase strategy
of avoiding a jury finding of premeditation and deliberation at the guilt phase, and
of arguing at the penalty phase that defendant’s lack of premeditation and
deliberation was a mitigating factor. The trial judge’s comments undermined this
defense strategy. Indeed, the trial judge’s comments during voir dire, left
uncorrected, bolstered the prosecutor’s argument later in the trial that defendant
had premeditated the murders and undercut defendant’s arguments that the
murders were not premeditated and were committed under the influence of drugs.
Consequently, we hold that the trial judge erred in telling the jury that
premeditation was a “gimme” and that the issue of premeditation was “all over
and done with.”
B. Judicial
Misconduct
Defendant contends that the trial judge belittled crucial defense witnesses
and hamstrung their testimony and repeatedly disparaged defense counsel, giving
the impression that the court was aligned with the prosecution.
A “trial court commits misconduct if it persistently makes discourteous and
disparaging remarks to defense counsel so as to discredit the defense or create the
impression that it is allying itself with the prosecution.” (People v. Carpenter
(1997) 15 Cal.4th 312, 353; see also People v. Fudge (1994) 7 Cal.4th 1075, 1107;
People v. Clark (1992) 3 Cal.4th 41, 143.) Jurors rely with great confidence on
the fairness of judges, and upon the correctness of their views expressed during
trials. (People v. Mahoney (1927) 201 Cal. 618, 626-627.) When “the trial court
persists in making discourteous and disparaging remarks to a defendant’s counsel
16
and witnesses and utters frequent comment from which the jury may plainly
perceive that the testimony of the witnesses is not believed by the judge . . . it has
transcended so far beyond the pale of judicial fairness as to render a new trial
necessary.” (Id. at p. 627.)
The trial judge in the present case belittled defense witnesses on several
occasions. Dr. Stein, an expert in pharmacology called by the defense to testify as
to the general effects of cocaine abuse, testified that he received about $4 million
worth of federal grants over his 13 years with the University of California. The
trial judge interjected the comment, “[i]n other words, you contributed to the
federal deficit; is that correct?” Later, Dr. Stein was asked by defense counsel
how he drew conclusions about drug effects on people, given that he had only
participated in animal studies. Dr. Stein attempted to answer the question, stating
“The reason that the federal government puts millions of dollars . . .” but was cut
off by the trial judge, who told him to “[t]ry and answer the question. Not whether
the federal government spent millions of dollars. They spent too much already.
Let’s not get into that . . . . That would be very depressing and we will need
cocaine.” This statement appears to refer to evidence presented by the defense
that some individuals use cocaine to self-medicate themselves as treatment for
depression.
Defense counsel asked Dr. Fossum, a clinical psychologist who performed
a social history of the Sturm family and testified for the defense as to the family
dynamic that existed in the Sturm household during defendant’s childhood, to
point out some examples of particular pathological behaviors in the Sturm family.
Dr. Fossum responded that she “could cite to the rather constant message that
Gregory Sturm got . . . .” The prosecutor did not object, but the trial judge cut off
Dr. Fossum’s response and admonished Dr. Fossum for overusing descriptive
words in her testimony: “No, don’t. You have a tendency to add to your
testimony. Give us an example. Don’t give a lot of adjectives and adverbs and so
17
forth . . . . Just tell us what your answer is and then leave it up to the people that
are determining the factual situation to make the necessary adjectives if they
desire. ” Shortly thereafter, the trial judge sua sponte struck an answer by Dr.
Fossum, telling her that “you embellish your answers, ma’am, which causes a
problem for the court.”
Later, defense counsel asked Dr. Fossum whether she could see signs of
defendant’s depression by examining his school records. After Dr. Fossum
answered affirmatively, the trial court interjected: “What’s the difference if she did
or she didn’t?” Later, the prosecutor objected when defense counsel asked Dr.
Fossum what effect positive feedback from neighbors and friends had on
defendant. In sustaining the objection, the trial judge stated that the question was
cumulative because he thought that it had already been elicited that defendant had
“gone to the neighbors to seek approval because he didn’t get it at home.” The
trial court added that he would not allow defense counsel to ask why positive
reinforcement from defendant’s neighbors and family friends failed to cure
defendant’s depression: “[i]t didn’t, so why do we care? Isn’t that the bottom
line? I assume because he didn’t get it [positive reinforcement] from the father
figure or something. Really, where do we go?”
The trial judge also interjected in the following exchange between defense
counsel and Dr. Fossum:
Defense counsel:
“. . . is that the case in a malignant family?”
Dr. Fossum:
“What we’ve discovered is that once you--”
Court:
“Why don’t you just answer yes or no, ma’am. If we
need an explanation, you can do it.”
Dr.
Fossum:
“The
question--”
Court:
“The
answer
is
yes.”
18
Shortly thereafter, the court again answered a question for Dr. Fossum, stating “I
think the answer is yes.” However, Dr. Fossum disagreed stating, “[n]o, I think
the answer is no, your honor, if I understood the question.”
The trial judge also disparaged defense counsel in front of the jury. For
instance, when defense counsel attempted to ask Cindy Medeiros whether her sons
would be upset were defendant to receive the death penalty, the trial court sua
sponte interjected: “Come on, Mr. Kelley [defense counsel], please. I don’t like to
interrupt. You know, there is no way you can get that in. You’ve been around
enough and I don’t want to chastise you in front of the jury but we have just gone
through, you want to relate what her sons thought . . . . And we are here and
holding the jury over late . . . . And clearly you know these questions are
objectionable. Why ask them?” Later, the trial court admonished defense
counsel in the presence of the jury, saying that “I don’t want to criticize you in
open court, but you are not grasping my ruling, I don’t believe. I can tell this is
going nowhere.”
At another point, the trial judge chastised defense counsel for attempting to
rephrase a question to which an objection had been sustained regarding whether
Dr. Fossum ever recalled Linda Sturm saying any favorable things about
defendant during an interview. The court cut off defense counsel, stating: “No,
no, no. We are back to the same question number one again. I rule, I rule and
then you go back and ask the question just a little bit different, trying to sneak it
by. Is that the particular word I should use? Again, Mr. Kelley, please . . . . So
again, admonish the jury that Mr. Kelley’s questions are not evidence, as much as
he would like them to be evidence.” (Italics added.) Similarly, the trial judge
interjected sua sponte after defense counsel asked a question: “I tell you not to ask
a question and you get right up here and ask it anyway. You know, my rulings,
unfortunately, I’m like an umpire. And if I make a ruling you are stuck with it.”
19
On numerous occasions, the trial judge interposed his own objections to
questions asked by defense counsel. For example, the trial court objected when
defense counsel asked a defense witness whether defendant’s biological father had
had ongoing contact with defendant’s sisters, stating: “Mr. Rosenblum [the
prosecutor] is looking at the books for things and so forth and isn’t that interested.
But I’ll interject myself . . . .” At one point during the presentation of mitigating
evidence, the trial judge interrupted defense counsel’s questioning of Dr. Fossum,
and invited the prosecutor to object, stating: “It’s your case, Mr. Rosenblum. Is
there an objection on where we are going?” In a similar incident, the trial judge
told a defense witness not to answer a particular question “because there would be
an objection.” On another occasion, the judge said “Let me interrupt. I see Mr.
Rosenblum’s lips are moving.” During the presentation of mitigating evidence by
the defense, there were over 30 occasions in which the trial judge either objected
sua sponte or otherwise intervened to disallow a question asked by defense
counsel in the absence of an objection by the prosecutor. In comparison, the trial
judge intervened fewer than five times to preclude a witness from answering a
question posed by the prosecutor.
The trial judge acknowledged the danger that his conduct appeared to favor
the prosecution, but one attempt by the court to address this problem only made
matters worse. After a particularly heated exchange between the court and
defense counsel regarding the admissibility of certain testimony by Dr. Fossum,
the trial judge gave the following lengthy admonition:
“I want to admonish the jury, just a bit. I’ve done it before. I don’t want
the jury, and I’m sure you wouldn’t with a seriousness of this particular case, get
into personality of the attorneys and so forth, whether you like the conduct, the
way one attorney tries a case and the way the other one doesn’t.
“They’re both doing the best for their clients. And I don’t want you to
think that—I’m here, hopefully neutral and trying to rule on objections. But I
20
think it’s obvious to the jury that—I hope they aren’t drawing any inference that
I’m upset with Mr. Kelley or upset with Mr. Rosenblum. But I would have to say
for the record we have spent an inordinate amount of time whereby objections are
raised with regard to questions by Mr. Kelley.
“And I don’t want the jury to think because it appears that I’m ruling
against Mr. Kelley 99 times out of 100 or making these comments, but the reason
I’m doing it is it seems to me that it is up to me to make the proper rulings.
“And I hope the jury isn’t feeling that I’m upset with Mr. Kelley or I’m
upset with Mr. Rosenblum. It wouldn’t be proper for you to consider that. But it
would be less than candid if it didn’t appear that somewhere along the line that
Mr. Kelley and I aren’t agreeing on some of these rulings that have come up
repeatedly. [¶] . . . [¶]
“But I have a duty to hold [the evidence] to what I consider relevant and
keep the case moving forward. Some judges sit and don’t comment if the
earthquake occurred during the court while they’re in session. They probably
won’t say anything. I’m probably what’s known as an active judge and I like to
hopefully keep things moving and so forth.
“But in the court’s opinion, we have ruled on the same thing four or five
times this afternoon. And I don’t want you holding that against Mr. Kelley. If
you feel the court is picking on Mr. Kelley in any way or Mr. Rosenblum having
to object a lot while Mr. Kelley doesn’t have to object, it’s a matter of the
questions being asked. [¶] . . . [¶]
“So there are certain rules. And this is why attorneys go to school and
supposedly learn the rules of evidence. I don’t comment on that. Whether they do
or they don’t, not picking on anybody. But I said, that’s the bottom line.” (Italics
added.)
Although no objection was raised to several of the incidents now cited as
misconduct, the People do not take the position that defendant has forfeited all
21
judicial misconduct claims premised on these events. As a general rule, judicial
misconduct claims are not preserved for appellate review if no objections were
made on that ground at trial. (See, e.g., People v. Snow (2003) 30 Cal.4th 43, 77-
78; People v. Fudge, supra, 7 Cal.4th at p. 1108; People v. Anderson (1990) 52
Cal.3d 453, 468.) However, a defendant’s failure to object does not preclude
review “when an objection and an admonition could not cure the prejudice caused
by” such misconduct, or when objecting would be futile. (People v. Terry (1970)
2 Cal.3d 362, 398; see also People v. Perkins (2003) 109 Cal.App.4th 1562,
1567.)
Given the evident hostility between the trial judge and defense
counsel during the penalty phase, it would also be unfair to require defense
counsel to choose between repeatedly provoking the trial judge into making
further negative statements about defense counsel and therefore poisoning the jury
against his client or, alternatively, giving up his client’s ability to argue
misconduct on appeal. On this record, we are convinced that any attempt by
defense counsel to object to the trial court’s numerous sua sponte objections and
derogatory comments “would have been futile and counterproductive to his
client.” (People v. Hill (1998) 17 Cal.4th 800, 821.)
“The object of a trial is to ascertain the facts and apply thereto the
appropriate rules of law, in order that justice within the law shall be truly
administered.” (People v. Mendez (1924) 193 Cal. 39, 46.) To this end, “the court
has a duty to see that justice is done and to bring out facts relevant to the jury’s
determination.” (People v. Santana (2000) 80 Cal.App.4th 1194, 1206.) The trial
court has a statutory duty to control trial proceedings, including the introduction
and exclusion of evidence. (People v. Carlucci (1979) 23 Cal.3d 249, 255.) As
provided by section 1044, it is “the duty of the judge to control all proceedings
during the trial, and to limit the introduction of evidence and the argument of
counsel to relevant and material matters, with a view to the expeditious and
effective ascertainment of the truth regarding the matters involved.” However, “a
22
judge should be careful not to throw the weight of his judicial position into a case,
either for or against the defendant.” (People v. Mahoney, supra, 201 Cal. at p.
627.)
Trial judges “should be exceedingly discreet in what they say and do in the
presence of a jury lest they seem to lean toward or lend their influence to one side
or the other.” (People v. Zammora (1944) 66 Cal.App.2d 166, 210.) A trial court
commits misconduct if it “ ‘persists in making discourteous and disparaging
remarks to a defendant’s counsel and witnesses and utters frequent comment from
which the jury may plainly perceive that the testimony of the witnesses is not
believed by the judge.’ ” (People v. Boyette (2002) 29 Cal.4th 381, 460, quoting
People v. Mahoney, supra, 201 Cal. at p. 627.)
Under the unique facts of the present case, we hold that the trial judge’s
conduct during the second penalty phase trial constituted misconduct. The trial
judge engaged in a pattern of disparaging defense counsel and defense witnesses
in the presence of the jury, and conveyed the impression that he favored the
prosecution by frequently interposing objections to defense counsel’s questions.
The trial judge’s comments during the testimony of defense expert witness
Dr. Stein that the expert had “contributed to the federal deficit” and that such
contribution was “very depressing and we will need cocaine” were inappropriate.
While this apparently was an attempt at humor—always a risky venture during a
trial for a capital offense—this court has repeatedly stated that a trial court must
avoid comments that convey to the jury the message that the judge does not
believe the testimony of the witness. (See People v. Boyette, supra, 29 Cal.4th at
p. 460; People v. Mahoney, supra, 201 Cal. at p. 627.)
The trial court, in remarking upon the impact of federally funded drug
studies upon the federal deficit, communicated to the jury that he felt that the
federal government was spending too much money on funding the studies of drug
experts like Dr. Stein. Even more troubling, the comments made by the trial judge
23
also poked fun at a foundational theory of the defense case—that defendant had
become addicted to cocaine in order to self-medicate for depression. Indeed, the
trial judge’s sarcastic statement that knowing the amount of federal money spent
on studying the effects of drugs would be “very depressing and we [the judge and
jury] will need cocaine” conveyed to the jury that the trial judge did not take
seriously the defense theory in mitigation.
Several comments made by the trial court during the testimony of Dr.
Fossum also were improper. It is plain from the record that the judge had become
frustrated with Dr. Fossum during the course of her testimony. In the presence of
the jury, the trial judge criticized Dr. Fossum for having a “tendency to add to
[her] testimony,” charged that she “embellish[ed] her answers,” and advised her
not to use “a lot of adjectives and adverbs and so forth” in her testimony because it
was up to the jury to determine the “necessary adjectives.” These statements
questioned the reliability of the expert’s testimony in general, and suggested to the
jury that such testimony had not been based wholly upon the facts. The trial judge
might have commented at sidebar or during a recess outside the presence of the
jury upon any concerns he had with the style of Dr. Fossum’s testimony; however,
it was improper for the judge to rebuke an expert witness in front of the jury by
suggesting that she was manufacturing or improperly including the descriptive
details of her testimony.
The trial judge also improperly expressed indifference to Dr. Fossum’s
testimony. The trial court interrupted Dr. Fossum’s testimony to: (1) ask “[w]hat’s
the difference if [Dr. Fossum] did or [] didn’t” see signs of defendant’s depression
by looking at his school records; (2) indicate that he did not care why positive
reinforcement from neighbors and friends did not cure defendant’s depression; and
(3) state that he “assumed” that defendant’s depression was not cured because he
did not get positive reinforcement “from the father figure or something.”
24
In so doing, the judge conveyed the message to the jury that the trial judge
thought that the substance of Dr. Fossum’s testimony was of little consequence. It
is well recognized that the trial judge may comment on the relevance of evidence,
and may sua sponte exclude irrelevant evidence. (People v. Santana, supra, 80
Cal.App.4th at p. 1206.) However, if the trial court believed Dr. Fossum’s
testimony to be legally irrelevant, he could have excluded it on that ground
without phrasing his objection as a lack of “caring” about the testimony, which
could easily be misconstrued by the jury as a comment that the evidence was
useless. Additionally, the trial judge need not have expressed his assumption that
defendant did not cure his depression because he “didn’t get [positive
reinforcement] from the father figure or something,” which belittled Dr. Fossum’s
testimony by reducing it to a Freudian platitude, and communicated to the jury
that the trial judge considered such testimony to be rote and therefore not worth
considering.
The trial court continued to display impatience with Dr. Fossum, and at
times himself answered questions that defense counsel addressed to Dr. Fossum.
On one occasion, the trial court attempted to answer a question for Dr. Fossum,
and did so incorrectly; although the trial court judge answered a question by
stating “I think the answer is yes,” Dr. Fossum had to interject to state that the
“answer [was] no.” By answering Dr. Fossum’s questions for her, the trial judge
overstepped the proper role of the court. If the trial judge felt that the questions
being asked of Dr. Fossum were cumulative or irrelevant, it would have been
appropriate for him to object sua sponte on either of those grounds. The trial
judge, however, answered the questions himself in front of the jury, conveying to
them the message that the questions were so trivial and/or obvious that he himself
was able to answer them without possessing the particular expertise of the witness.
The trial judge’s behavior towards the two key expert witnesses for the
defense conveyed to the jury disdain for the witnesses and their testimony and
25
therefore constituted misconduct. (People v. Mahoney, supra, 201 Cal. at p. 622.)
In his comments regarding federal expenditures on drug studies, his joking remark
that the amount of such money spent would be so depressing as to induce cocaine
use, and his statement that defendant’s depression was not cured because he did
not get positive reinforcement from the father “or something,” the trial court made
light of the substance of defendant’s case in mitigation. Further, the trial court’s
numerous impatient comments during Dr. Fossum’s testimony, his
characterization of her testimony as “embellished,” and his interjections during her
testimony to answer the questions himself, indicated that the judge discounted her
testimony. Such behavior, especially considered in the aggregate, conveyed to the
jury the unfortunate message that the trial judge did not take seriously the
testimony of the defense experts.
The trial judge exacerbated his mistreatment of defense witnesses by
repeatedly and improperly disparaging defense counsel, which conveyed to the
jury the message that the court was allied with the prosecution. Understandably
frustrated by defense counsel’s persistent attempts to push the boundaries of the
trial court’s evidentiary rulings, the trial judge repeatedly reprimanded defense
counsel in front of the jury. By accusing defense counsel of purposely trying to
“sneak” in improper evidence by rephrasing his questions, and by admonishing the
jury that defense counsel’s questions were not evidence “as much as he would like
them to be evidence,” the trial court implied to the jury that defense counsel was
deliberately asking improper questions in order to place inadmissible evidence in
front of the jury. This suggestion was reinforced by the admonition given to the
jury, in which the trial court remarked that defense counsel wanted his questions
to be considered as evidence.
“It is completely improper for a judge to advise the jury of negative
personal views concerning the competence, honesty, or ethics of the attorneys in a
trial . . . . When the court embarks on a personal attack on an attorney, it is not the
26
lawyer who pays the price, but the client.” (People v. Fatone (1985) 165
Cal.App.3d 1164, 1174-1175.) This principle holds true in instances involving a
trial judge’s negative reaction to a particular question asked by defense counsel,
regardless of whether the judge’s ruling on the prosecutor’s objection was correct;
even if an evidentiary ruling is correct, “that would not justify reprimanding
defense counsel before the jury.” (Ibid.; see also People v. Black (1957) 150
Cal.App.2d 494, 499 [Though counsel’s line of inquiry was objectionable, and the
evidentiary ruling essentially proper, the judge’s remarks accusing counsel of
unfairness constituted misconduct.].) Where the trial court, as was the case here,
makes comments that imply that defense counsel is behaving unethically or in an
underhanded fashion, such behavior constitutes misconduct.
The trial judge’s negative remarks about defense counsel are also troubling
in light of the unequal treatment by the court of the prosecutor and defense
counsel. The trial judge objected sua sponte or otherwise interrupted and
disallowed numerous questions asked by defense counsel; such interruptions or
objections are certainly permissible under section 1044, which outlines the duty of
the judge to control trial proceedings and to limit the introduction of evidence “to
relevant and material matters.” In this case, however, the trial court intervened in
a way that created the impression that the trial judge was allied with the
prosecution.
The trial court sua sponte intervened more than 30 times during the defense
case in mitigation, yet only intervened during the prosecutor’s case in aggravation
less than five times.3 As one court colorfully observed, “[w]hen the judge
3
On many occasions, these sua sponte interruptions tended to be negative
and disparaging. A representative example occurred when defense counsel asked
defendant’s sister about when she and defendant worked as bus drivers for the
school district. The judge interrupted, asking: “What in the world had this got to
(Footnote continued on next page.)
27
figuratively descends from the bench and enters the arena he takes the risk that he
will be besmirched with gore or sawdust, and that he will be criticized as
interfering either on behalf of the bull or the matador.” (People v. Bowman (1966)
240 Cal.App.2d 358, 382.) Where the trial judge, as was the case here, intervenes
from the bench much more frequently on one side than he does on the other, such
criticism may gain credibility among the jury.
The jury had already heard the trial judge make comments such as “[l]et me
interrupt. I see Mr. Rosenblum [the prosecutor]’s lips are moving,” and “Mr.
Rosenblum is looking at the books for things . . . . But I’ll interject myself.”
These comments, in which the trial court noted that he was, in effect, filling in for
an otherwise occupied prosecutor, communicated to the jury the message that the
trial judge was collaborating with the prosecutor.4 Though a numerical disparity
between sua sponte interventions by the trial court during the prosecution case and
defense case does not on its own constitute misconduct, in light of the trial judge’s
improper comments disparaging defense counsel and his comments implying an
alliance with Mr. Rosenblum, such uneven intervention strengthens the impression
(Footnote continued from previous page.)
do? You are going into whether she drove the bus what, for, whom, we got to
move the case forward. This is just going on and on.”
4
Indeed, the trial judge remarked to counsel outside the presence of the jury
that he was interjecting more often in order to make the prosecutor “tune [] back
in” and that he did so because he “didn’t want to leave [the prosecutor] shut out.”
The prosecutor replied that, although he had a continuing objection to certain
testimony, he was troubled at being torn between “whether to object or not to what
I think is inadmissible evidence.” It is clear from this exchange that the prosecutor
thought that certain evidence was inadmissible, but was hesitant for tactical
reasons to object continually to defense counsel’s questions, and that the trial
judge, worried that the prosecution either was not “tuned in” or was being “shut
out,” took it upon himself to make the prosecutor’s objections for him.
28
that the trial judge was allied with the prosecution. A trial judge who creates the
impression that he is allied with the prosecution has engaged in improper conduct.
(See, e.g., People v. Carpenter, supra, 15 Cal.4th at p. 353.) The trial judge’s
behavior, in creating such an impression by intervening in a significantly uneven
fashion and making comments that implied that such interventions were made in
the prosecutor’s stead, constituted misconduct.
Recognizing that his repeated interruptions of the defense case in mitigation
were rather unusual and perhaps improper, the trial judge spoke to the jury on
several occasions about the scope of his own participation in the trial. Such
admonitions, however, did not cure the above instances of misconduct. Rather,
the lengthy admonition given by the trial judge, purportedly to ensure that his
behavior during the presentation of mitigating evidence was not construed as
favoritism to the prosecution, achieved the opposite effect. Rather than merely
reiterating to the jury that it should not infer any favoritism or disapproval from
his conduct, the trial judge embellished his remarks in a way that undermined the
purpose of addressing the jury on the issue of his own conduct.
Despite stating that he hoped that the jury was not “drawing any inference
that I’m upset with Mr. Kelley or upset with Mr. Rosenblum,” the trial court
immediately followed with the comments that “we have spent an inordinate
amount of time whereby objections are raised with regard to questions by Mr.
Kelley,” and that it “appear[e]d that [the court was] ruling against Mr. Kelley 99
times out of 100.” Shortly thereafter, the trial court noted that he had repeatedly
ruled on similar issues that afternoon, but that such repetition was “a matter of the
questions being asked.”
Such comments inevitably conveyed to the jury the message that the trial
court thought that defense counsel was wasting the court’s—and the jury’s—time
by asking inappropriate questions. The trial judge bolstered this impression by
noting that 99 percent of the time he had ruled against defense counsel. Even
29
were that statistic accurate, it was improper for the trial judge to have emphasized
that the prosecutor was prevailing on a large percentage of his objections. Indeed,
the use of such “statistics” by a trial judge is, in itself, inappropriate. The trial
court’s duty is to control the proceedings of the trial, and to act—as the trial court
had earlier characterized his role—“like an umpire,” not as a color commentator
on the relative success of counsel.
The trial judge closed his admonition to the jury by questioning defense
counsel’s competence and knowledge of the rules of evidence. In a statement to
the jury that purported to convey the trial judge’s neutrality, he achieved the
opposite result by adding that he would not comment on “why attorneys go to
school and supposedly learn the rules of evidence.” (Italics added.) Plainly, this
statement was a barb directed at defense counsel and his perceived inability to ask
appropriate questions. The trial court’s phrasing that he would not comment on
the subject, and stated that attorneys supposedly went to law school and learned
the rules of evidence did not lessen the blow. It is no less improper for a trial
judge to, in the words of a Spanish proverb, “tira la piedra y esconde la mano”—
which translates as “throw the rock and hide the hand”—than it is for him to throw
the rock in the first place.
C. Prejudice
Although no one instance of misconduct appears to, in itself, require
reversal, the cumulative effect of the trial judge’s conduct requires reversal. We
look very closely at the question of prejudice in this instance, where the death
penalty was imposed on a penalty phase retrial after the majority of the prior jury
would have voted in favor of a sentence of life in prison without the possibility of
parole.
Considered in the aggregate, the inappropriate comments made by the trial
judge spanned the entire penalty phase trial, from voir dire through the defense
case in mitigation. “Perhaps no one of them is important in itself but when added
30
together their influence increases as does the size of a snowball rolling downhill.”
(People v. Burns (1952) 109 Cal.App.2d 524, 543.) The numerous instances of
misconduct created an atmosphere of unfairness and were likely to have led the
jury to conclude that “the trial court found the People’s case against [defendant] to
be strong and [defendant]’s evidence to be questionable, at best.” (People v.
Santana, supra, 80 Cal.App.4th at p. 1207.)
Throughout defendant’s second penalty phase trial, beginning with voir
dire, and continuing through defense counsel’s presentation of mitigating
evidence, the trial court interjected itself unnecessarily and inappropriately into the
adversary process. Many of the trial judge’s comments should have been made at
sidebar, and not in front of the jury; in commenting in front of the jury, the trial
judge often made comments unnecessary to explain his rulings from the bench,
and also substantively undermined the defense theory of the case.
The trial court erroneously commented during voir dire that defendant’s
premeditation of the murders was a “gimme,” despite knowing from the first
penalty phase trial that defendant’s lack of premeditation was a central piece of
defendant’s case in mitigation. Further, the trial court made clear to the jury that
he did not take seriously the expert witnesses put on by the defense, making
various sarcastic remarks related to their testimony and qualifications. It was also
abundantly clear, even upon assessment of a “cold record,” that the trial judge did
not approve of the aggressive style of defense counsel and conveyed this
disapproval on numerous occasions to the jury by commenting on defense
counsel’s training, blaming defense counsel for the length of the penalty phase
trial, and specifically pointing out to the jury that he had ruled against defense
counsel “99 times out of 100.” Furthermore, the trial judge was not evenhanded;
rather, he interjected himself more vociferously and on many more occasions
during the defense case in mitigation than he did during the prosecution’s case in
aggravation.
31
Although the trial court admonished the jury not to infer any bias on the
part of the court based on comments that he made during the trial, at least one such
admonishment was itself undermined by the inclusion of inappropriate comments
disparaging defense counsel. In any case, even were the jury properly
admonished, it would be highly improbable that such admonishment could prevail
over the manner in which the trial judge conducted himself throughout the penalty
phase trial. (See People v. Santana, supra, 80 Cal.App.4th at p. 1207 [repeated
admonition could not cure the impression given to the jury that the trial judge
found defense case to be weak]; People v. Burns, supra, 109 Cal.App.2d at p. 542
[“While it is true that from time to time the judge admonished the jury that they
were the sole judges of the evidence and that they must draw no conclusions as to
guilt or innocence from the court’s remarks, it is difficult to understand how these
admonitions could have overcome the evident attitude of the judge throughout the
trial”].)
The cumulative effect of the trial judge’s comments requires a reversal of
the death sentence under either the Chapman or Watson standards of review.
(Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46
Cal.2d 818, 836.) Although the crime committed was undeniably heinous, a death
sentence in this case was by no means a foregone conclusion. Defendant was
quite young at the time of the murders and had no criminal history. At the guilt
phase, defendant succeeded in avoiding a conviction for premeditated and
deliberate murder, and at the first penalty phase, the jury was unable to reach a
verdict, voting 10 to 2 in favor of life imprisonment without the possibility of
parole. It was reasonably probable that the second penalty phase jury’s verdict
would have been different had the trial judge exhibited the patience, dignity, and
courtesy that is expected of all judges. (See Cal. Code Jud. Ethics, canon 3B(4)
[“A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses,
lawyers, and others with whom the judge deals in an official capacity . . . .”] .)
32
III. DISPOSITION
The judgment is reversed as to penalty for the reasons set forth above. In
all other respects, the judgment is affirmed.
MORENO, J.
WE CONCUR: GEORGE, C. J.
KENNARD,
J.
WERDEGAR,
J.
GOMES,
J.∗
∗
Associate Justice, Court of Appeal, Fifth Appellate District, assigned by the
Chief Justice pursuant to article VI, section 6 of the California Constitution.
33
DISSENTING OPINION BY BAXTER, J.
I respectfully dissent from the majority’s decision to vacate the death
judgment, rendered after a second penalty trial, in this aggravated case. The
majority does not base this decision upon lapses in the evidence (which was
overwhelming), or upon identified errors of law that prejudiced defendant’s
substantial rights. Instead, the majority, by strained reasoning, discerns a pattern
of judicial misconduct it deems sufficient to undermine confidence in the trial’s
fairness. In doing so, the majority places exaggerated reliance on petty matters,
many of which defendant has not challenged here or below. Indeed, neither
defendant nor the majority criticizes the seasoned trial judge for his handling of
the guilt phase. Moreover, in assessing the effect of the judge’s conduct on the
penalty jury, the majority ignores the cold-blooded nature of this triple slaying.
Reversal, and a remand for a third penalty trial, are unnecessary in my view.
Like defendant, the majority first focuses on the trial court’s comment to
Prospective Juror C. S., in front of the entire venire, about her questionnaire at the
penalty retrial (i.e., “You . . . believe[ ] in the death penalty when it was
premeditated murder, that is a gimme[,] . . . all over and done with, . . . in the
penalty phase”). (Maj. opn., ante, at p. 14.) According to the majority, the court
thereby conveyed the penalty jury was bound by a prior finding of premeditation,
and could not consider that issue further. Then, the majority notes, the court
denied defendant’s request for a clarifying instruction that (as was true) the guilt
1
jury had not found premeditation. Hence, the majority concludes, the court
wrongly eliminated the lack of premeditation as a sentencing factor, severely
damaged defense strategy, and unfairly encouraged a death sentence.
The trial court, albeit inartfully, was simply trying to explain that,
regardless of issues, like premeditation, that might have been decided at the guilt
trial, the penalty jurors must examine more broadly whether the punishment
should be death or life without parole. In other words, the court sought to caution
that a juror could not automatically impose death for a premeditated murder. I
find it difficult to conceive that jurors could have been seriously misled.
Moreover, the majority ignores subsequent steps taken by the trial court to
ensure no impropriety or confusion occurred. (People v. Melton (1988) 44 Cal.3d
713, 735 (Melton) [judging propriety and effect of court’s comment by both its
content and surrounding circumstances].) When voir dire resumed, the court
promptly advised prospective jurors, including C. S., to “disregard[ ] the court’s
comment [about premeditation] before.” Also, to ensure that neither C. S. nor
anyone else held erroneous views, the court reiterated that eligibility for a death
sentence requires “more” than a conviction of first degree premeditated murder, to
wit, a special circumstance finding.1 Thus, though the court did not provide the
precise clarification the defense preferred, it substantially addressed the defense
concerns about its “premeditation” comment. While the court might have handled
the situation more adeptly, the majority’s severe reaction to this incident seems
unfair.
1
Of course, the guilt jury’s failure to return a “premeditated murder” verdict
did not prevent the penalty jurors from concluding, as a circumstance of the crime
(Pen. Code, § 190.3, factor (a)), that the murder was premeditated. Indeed, there
was substantial evidence to that effect.
2
As discussed below, the other incidents of alleged misconduct primarily
occurred during the testimony of Dr. Stein and Dr. Fossum. These defense experts
described the general effects of cocaine use and defendant’s social history,
respectively. The majority concludes that the court belittled these witnesses in
front of the jury, disparaged defense counsel in the process, and created the
impression that it was an agent of the prosecution and an enemy of the defense.
As the majority seems to concede, none of the alleged misconduct on which
it relies prompted a timely defense objection on that ground. For this reason,
perhaps, defendant has avoided basing appellate claims of judicial misconduct on
many of the same events. Contrary to what the majority implies, nothing allows
this court to ignore the procedural bar that generally applies in such situations.
We have said that a timely objection and appropriate admonition will normally
cure any harm flowing from judicial misconduct of the kind alleged here. (People
v. Monterroso (2004) 34 Cal.4th 743, 759 (Monterroso).) We also cannot
speculate that the trial court would have refused to correct any error if given the
opportunity to do so. (See Melton, supra, 44 Cal.3d 713, 735.) Hence, the
majority wrongly assumes that the events used to reverse the judgment are
properly before this court on appeal.
On the merits, judicial comments made during the examination of defense
witnesses were hardly as significant as the majority suggests. (See maj. opn., ante,
pp. 16-21, 23-30.) The references to Dr. Stein’s grant money and to cocaine’s
antidepressant effect were humorous quips of the kind that have not been deemed
serious or harmful before. (E.g., Melton, supra, 44 Cal.3d 713, 753-754 [jests
aimed at defense expert and counsel]; see Monterroso, supra, 34 Cal.4th 743, 761-
762; People v. Riel (2000) 22 Cal.4th 1153, 1177; People v. Freeman (1994) 8
Cal.4th 450, 511-512.)
3
In all the other incidents on which the majority relies, the trial court simply
adopted a colloquial style when applying the rules of evidence, and excluding
testimony that was irrelevant or nonresponsive. For instance, the court asked why
anyone should “care” about Dr. Fossum’s answer to one question, and chided
counsel for trying to “sneak by” a particular ruling another time. The majority
does not find any error in the court’s substantive rulings on these evidentiary
points. Moreover, though the majority intimates that the court should have
expressed its concerns at sidebar, rather than in front of the jury, it cites no
authority requiring a private bench conference each time routine sua sponte rulings
are made. (See People v. Fudge (1994) 7 Cal.4th 1075, 1108 [trial court has broad
discretion in handling evidentiary questions and restricting bench conferences].)
Even if the court would have been better advised to speak with more decorum, the
comments did not come close to denigrating defense counsel, undermining
defense witnesses, or damaging defense strategy.
Finally, I disagree with the majority that the trial court’s actions had a
cumulative prejudicial effect. In reaching this conclusion, the majority focuses
exclusively on the disputed remarks themselves. Such an approach removes, in
essence, the aggravating nature of the capital crimes from the prejudice analysis.
Evidence admitted at the penalty retrial identified defendant as the person
who robbed and killed three young men at the business where he used to work
(e.g., murder weapon, blood-stained clothes, and taped confessions). Each victim
was bound and shot in the head execution-style from close range. Defendant
evidently planned to use the money he stole from the cash register to buy drugs or
a new motorcycle. The jury knew that at least two of the victims cried or begged
for mercy before they died. The jury also knew that defendant ignored these pleas
even though he had been friendly with the victims in the past. Indeed, the
evidence indicated that, before the murders, defendant had met family members
4
and friends of the victims, and thus was aware of the emotional trauma he would
cause by killing them. These family members and friends testified to the great
pain and grief he had caused by his homicidal acts.
Unlike the majority, I do not attribute the death verdict to the manner in
which the trial court conducted the legal proceedings. The blame rests squarely on
defendant and the capital crimes he committed. Nothing the majority has cited
persuades me that a third trial to determine defendant’s appropriate punishment is
justified. I therefore dissent.
BAXTER, J.
I CONCUR:
CHIN, J.
5
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion People v. Sturm
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No.
S031423Date Filed: March 6, 2006
__________________________________________________________________________________
Court:
SuperiorCounty: Orange
Judge: Donald A. McCartin
__________________________________________________________________________________
Attorneys for Appellant:
Lynne S. Coffin and Michael J. Hersek, State Public Defenders, and John Fresquez, Deputy State PublicDefender, for Defendant and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W Schons,Assistant Attorney General, William M. Wood and Karl T. Terp, Deputy Attorneys General, for Plaintiff
and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
John FresquezDeputy State Public Defender
801 K Street, Suite 1100
Sacramento, CA 95814-3518
(916) 322-2676
Karl T. Terp
Deputy Attorney General
110 West “A” Street, Suite 1100
San Diego, CA 92101
(619) 645-2194
Opinion Information
| Date: | Docket Number: |
| Mon, 03/06/2006 | S031423 |
Parties
| 1 | The People (Respondent) Represented by Attorney General - San Diego Office Karl T. Terp, Deputy Attorney General P.O. Box 85266 San Diego, CA |
| 2 | Sturm, Gregory Allen (Appellant) San Quentin State Prison Represented by Habeas Corpus Resource Center Gary D. Sowards 50 Fremont Street, Suite 1800 San Francisco, CA |
| 3 | Sturm, Gregory Allen (Appellant) San Quentin State Prison Represented by Office Of The State Public Defender-Sac John Fresquez, Deputy State Public Defender 801 "K" Street, Suite 1100 Sacramento, CA |
| Disposition | |
| Mar 6 2006 | Opinion: Conviction & specials aff., penalty rev. |
| Dockets | |
| Feb 26 1993 | Judgment of death |
| Mar 2 1993 | Filed certified copy of Judgment of Death Rendered 2-26-93. |
| Jan 7 1997 | Counsel appointment order filed Richard A. Wasserstrom Is appointed as Lead Counsel, & Leon Letwin Is appointed as Associate Counsel to represent Applt on His Automatic Appeal, Including Any Related Habeas Proceedings. |
| Jan 16 1997 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Jan 21 1997 | Extension of Time application Granted To Applt To 3-31-97 To request Corr. of Record. |
| Mar 25 1997 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Mar 27 1997 | Extension of Time application Granted To Applt To 5-30-97 To request Corr. of Record. |
| May 19 1997 | Application for Extension of Time filed By Applt to request correction of the Record. |
| May 20 1997 | Extension of Time application Granted To Applt To 7-29-97 To request Corr. of Record. |
| Jul 24 1997 | Received: Copy of Applt's motion to correct, Augment & Settle the Record & to Examine Sealed & other Confidential Documents (33 Pp.) |
| Jun 24 1998 | Compensation awarded counsel |
| Dec 15 1998 | Record on appeal filed C-20 (6,398 Pp.) and R-40 (7,284 Pp.); Five Sealed Envelopes. Clerk's Transcript includes 3,499 pages of Juror Questionnaires. |
| Dec 15 1998 | Appellant's opening brief letter sent, due: 1-25-99. |
| Jan 13 1999 | Compensation awarded counsel |
| Jan 13 1999 | Compensation awarded counsel |
| Jan 19 1999 | Application for Extension of Time filed To file Aob. |
| Jan 20 1999 | Extension of Time application Granted To 3-26-99 To file Aob. |
| Feb 17 1999 | Motion filed By Attys Richard Wasserstrom and Leon Letwin to withdraw as Counsel for Applt. |
| Mar 1 1999 | Compensation awarded counsel |
| Mar 22 1999 | Application for Extension of Time filed To file Aob. |
| Mar 29 1999 | Extension of Time application Granted To 5-25-99 To file AOB |
| Apr 13 1999 | Compensation awarded counsel |
| Apr 21 1999 | Order appointing State Public Defender and H.C.R.C. filed Good cause appearing, the applic. of appointed lead and associate counsel for permission to withdraw as attorneys of record for appellant, filed 2-17-99, is granted. The order appointing Richard Wasserstrom and Leon Letwin as lead and associate counsel of record, respectively, for appellant, filed 1-7-97, is hereby vacated. The State Public Defender is hereby appointed to represent applt for the direct appeal in the above automatic appeal now pending in this court. The Habeas Corpus Resource Center is hereby appointed to represent applt for habeas corpus/ executive clemency proceedings related to the automatic appeal. Richard Wasserstrom and Leon Letwin are directed to deliver to the State Public Defender and the Habeas Corpus Resource Center, respectively, within 30 days from the filing of this order, their separate copies of the record on appeal in People V. Sturm and all transcript notes, habeas corpus "issues" lists and all other appellate and habeas corpus investigation work product. Appointed counsel also shall deliver to the Habeas Corpus Resource Center all case files, reports and related materials that they have obtained from appellant's trial counsel, paralegals, experts, and intestigators. |
| Apr 26 1999 | Order filed: The Order filed,March 29,1999,Granting Applt an Extension of time to 5-25-99 to file AOB Is Vacated. |
| Apr 26 1999 | Note: letter sent to Deputy SPD Emry Allen regarding the court's order vacating the AOB due date. |
| Apr 18 2000 | Letter sent to: Counsel Advising AOB Due 7-19-2000. |
| Jul 11 2000 | Counsel's status report received (confidential) from State P.D. |
| Jul 12 2000 | Application for Extension of Time filed To file AOB. |
| Jul 18 2000 | Extension of Time application Granted To 9/19/2000 to file AOB. |
| Aug 14 2000 | Counsel's status report received (confidential) from Habeas Corpus Resource Center. |
| Sep 6 2000 | Counsel's status report received (confidential) from State P.D. |
| Sep 14 2000 | Application for Extension of Time filed To file AOB. (2nd request) |
| Sep 19 2000 | Extension of Time application Granted To 11/17/2000 to file AOB. |
| Oct 10 2000 | Counsel's status report received (confidential) from HCRC. |
| Nov 7 2000 | Application for Extension of Time filed To file AOB. (3rd request) |
| Nov 9 2000 | Counsel's status report received (confidential) from State P.D. |
| Nov 15 2000 | Extension of Time application Granted To 1/16/2001 to file AOB. |
| Dec 11 2000 | Counsel's status report received (confidential) from HCRC. |
| Jan 8 2001 | Application for Extension of Time filed To file AOB. (4th request) |
| Jan 8 2001 | Counsel's status report received (confidential) |
| Jan 18 2001 | Extension of Time application Granted To 3/19/2001 to file AOB. |
| Feb 7 2001 | Counsel's status report received (confidential) from HCRC. |
| Mar 13 2001 | Application for Extension of Time filed To file AOB. (5th request) |
| Mar 13 2001 | Counsel's status report received (confidential) from State P.D. |
| Mar 20 2001 | Extension of Time application Granted To 5/18/2001 to file AOB. No further extensions of time are contemplated. |
| Apr 9 2001 | Counsel's status report received (confidential) from HCRC. |
| May 9 2001 | Application for Extension of Time filed To file AOB. (6th request) |
| May 14 2001 | Counsel's status report received (confidential) from State P.D. (dated 5-9-2001). |
| May 15 2001 | Extension of Time application Granted To 7/17/2001to file AOB. No further extensions of time will be granted. |
| Jun 7 2001 | Counsel's status report received (confidential) from HCRC. |
| Jul 6 2001 | Counsel's status report received (confidential) from State P.D. |
| Jul 17 2001 | Application for Extension of Time filed to file AOB. (7th request) |
| Jul 20 2001 | Extension of Time application Denied to file AOB. |
| Aug 9 2001 | Counsel's status report received (confidential) from HCRC. |
| Aug 31 2001 | Application for Relief from Default filed. (227 Pp. brief submitted under separate cover) |
| Sep 4 2001 | Counsel's status report received (confidential) from State P.D. |
| Sep 5 2001 | Filed: Applt.'s application for relief from default to file AOB is granted. |
| Sep 5 2001 | Appellant's Opening Brief filed. (226 Pp.) |
| Sep 12 2001 | Filed: Suppl. declaration of service of AOB. |
| Oct 5 2001 | Application for Extension of Time filed To file resp.'s brief. (1st request) |
| Oct 9 2001 | Counsel's status report received (confidential) from HCRC. |
| Oct 10 2001 | Extension of Time application Granted To 12/4/2001 to file resp.'s brief. |
| Nov 30 2001 | Request for extension of time filed To file resp.'s brief. (2nd request) |
| Dec 10 2001 | Counsel's status report received (confidential) from HCRC. (amended October status report) |
| Dec 10 2001 | Counsel's status report received (confidential) from HCRC. |
| Dec 12 2001 | Extension of time granted To 2/3/2002 to file resp.'s brief. Dep. AG Terp anticipates filing the brief by 4/25/2002. Only 2 further extensions totaling 90 additional days are contemplated. |
| Feb 1 2002 | Request for extension of time filed To file resp.'s brief. (3rd request) |
| Feb 6 2002 | Counsel's status report received (confidential) from HCRC. |
| Feb 13 2002 | Extension of time granted To 4/2/2002 to file resp.'s brief. Dep. AG Terp anticipates filing the breif by 5/5/2002. Only one further extension totaling 30 additional days is contemplated. |
| Apr 8 2002 | Counsel's status report received (confidential) from HCRC. |
| Apr 11 2002 | Request for extension of time filed To file resp.'s brief. (4th request) |
| Apr 16 2002 | Extension of time granted To 5/6/2002 to file resp.'s brief. Dep. Atty. General Terp anticipates filing the brief by 7/5/2002. Only one further extension totaling 60 additional days will be granted. |
| May 1 2002 | Request for extension of time filed To file resp.'s brief. (5th request) |
| May 8 2002 | Extension of time granted To 7/5/2002 to file resp.'s brief. Dep. Atty. General Terp anticipates filing the brief by 7/5/2002. After that date, no further extension will be granted. |
| Jun 26 2002 | Request for extension of time filed To file resp.'s brief. (6th request) |
| Jul 3 2002 | Extension of time granted To 8/5/2002 to file resp.'s brief. Dep. Atty. General Terp anticipates filing that brief by 8/5/2002. No further extension will be granted. |
| Aug 2 2002 | Counsel's status report received (confidential) from HCRC. |
| Aug 5 2002 | Respondent's brief filed (148 pp.) |
| Aug 21 2002 | Request for extension of time filed to file reply brief. (1st request) |
| Aug 26 2002 | Extension of time granted to 10-25-2002 to file reply brief. The court anticipates that after that date, only three further extensions totaling 180 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it. |
| Oct 3 2002 | Counsel's status report received (confidential) from HCRC. |
| Oct 22 2002 | Request for extension of time filed To file appellant's reply brief. (2nd request) |
| Oct 29 2002 | Extension of time granted To 12/24/2002 to file appellant's reply brief. The court anticipates that after that date, only two further extensions totaling 120 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it. |
| Dec 3 2002 | Counsel's status report received (confidential) from HCRC. |
| Dec 17 2002 | Request for extension of time filed To file appellant's reply brief. (3rd request) |
| Dec 23 2002 | Extension of time granted To 2/24/2003 to file appellant's reply brief. The court anticipates that after that date, only one further extension totaling 60 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it. |
| Feb 4 2003 | Counsel's status report received (confidential) from HCRC. |
| Feb 13 2003 | Request for extension of time filed to file reply brief. (4th request) |
| Feb 24 2003 | Extension of time granted to 4-25-2003 to file reply brief. After that date, only two further extensions totaling about 100 additional days will be granted. Extension granted based upon Deputy SPD John Fresquez's representation that he anticipates filing the brief by 8-5-2003. |
| Apr 1 2003 | Counsel's status report received (confidential) from HCRC. |
| Apr 17 2003 | Request for extension of time filed to file appellant's reply brief. (5th request) |
| Apr 22 2003 | Extension of time granted to 6/24/2003 to file appellant's opening brief. After that date, only one further extension totaling about 40 additional days will be granted. Extension is granted based upon Senior Deputy State Public Defnder John Fresquez's representation that he anticipates filing that brief by 8/5/2003. |
| Jun 4 2003 | Counsel's status report received (confidential) from HCRC. |
| Jun 17 2003 | Request for extension of time filed to file appellant's reply brief. (6th request) |
| Jun 24 2003 | Extension of time granted to 8/5/2003 to file appellant's reply brief. Extension is granted based upon Senior Deputy State Public Defender John Fresquez's representation that he anticipates filing that brief by 8/5/2003. After that date, no further extension will be granted. |
| Jul 29 2003 | Counsel's status report received (confidential) from HCRC. |
| Aug 5 2003 | Appellant's reply brief filed (123 pp.) |
| Sep 29 2003 | Counsel's status report received (confidential) from HCRC. |
| Dec 2 2003 | Counsel's status report received (confidential) from HCRC. |
| Jan 29 2004 | Counsel's status report received (confidential) from HCRC. |
| Feb 2 2004 | Related habeas corpus petition filed (concurrent) No. S122384 |
| Jul 7 2005 | Exhibit(s) lodged People's: 90, 91 and 92. |
| Jul 18 2005 | Exhibit(s) lodged People's: 82, 83 and 84. (photos) |
| Oct 6 2005 | Oral argument letter sent advising counsel case could be scheduled for argument as early as December 2005, to be held the week of December 5, 2005, in Los Angeles. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument. |
| Oct 17 2005 | Filed letter from: respondent, dated 10/14/2005, requesting that matter be schedueld for oral argument in the afternoon, respondent is disabled, afternoon calendaring will hep ensure respondent arrives timely. |
| Nov 9 2005 | Case ordered on calendar December 6, 2005, 2:00 p.m., in Los Angeles |
| Nov 16 2005 | Request for Extended Media coverage Filed By John Hancock of The California Channel. |
| Nov 16 2005 | Received: appellate counsel's appearance sheet for oral argument with advisement that counsel will need 45 minutes for oral argument. |
| Nov 18 2005 | Filed: appellant's stipulation, dated 11-17-2005, regarding Justice Kennard's participation in the case. |
| Nov 18 2005 | Request for Extended Media coverage Granted subject to the conditions set forth in rule 980, California Rules of Court. |
| Nov 21 2005 | Filed: Letter from Karl T. Terp, deputy Attorney General, stipulating to Justice Kennard's participation in the decision of the court despite her inability to attend oral argument. |
| Nov 22 2005 | Filed: letter from respondent, dated 11/21/2005, re focus issues for oral argument. |
| Nov 23 2005 | Filed: appellant's opposition to the request for extended media coverage and request to terminate the order granting such coverage. |
| Nov 28 2005 | Filed: appellant's focus issue letter, dated 11-23-2005. |
| Nov 28 2005 | Order filed The order filed Nov. 18, 2005, granting media coverage is hereby vacated. |
| Dec 6 2005 | Cause argued and submitted |
| Mar 6 2006 | Opinion filed: Conviction & specials aff., penalty reversed Majority Opinion by Moreno, J. -----joined by George C.J., Kennard, Werdegar & Gomes (CA 5 assigned) JJ. Dissent by Baxter ----- joined by Chin, J. |
| Mar 20 2006 | Rehearing petition filed by respondent. (6,732 words; 23 pp.) |
| Mar 24 2006 | Time extended to consider modification or rehearing to and including June 2, 2006 |
| Mar 27 2006 | Answer to rehearing petition filed by appellant. (4589 words; 18 pp.) |
| May 17 2006 | Rehearing denied Baxter, Chin, and Corrigan, JJ., are of the opinion the petition should be granted. |
| May 17 2006 | Remittitur issued (AA) |
| May 22 2006 | Exhibit(s) returned People's 82, 83, 84, 90, 91 and 92 |
| May 31 2006 | Received: acknowledgment of receipt of exhibits. |
| Jun 5 2006 | Received: acknowledgment of receipt of remittitur. |
| Jun 13 2006 | Order filed (150 day statement) |
| Jan 8 2007 | Received: letter from U.S.S.C., dated January 3, 2007, advising time to file petition for writ of certiorari extended to and including March 9, 2007. |
| Briefs | |
| Sep 5 2001 | Appellant's Opening Brief filed. (226 Pp.) |
| Aug 5 2002 | Respondent's brief filed |
| Aug 5 2003 | Appellant's reply brief filed |
