Citation 53 Cal. 4th 771, 269 P.3d 1109, 137 Cal. Rptr. 3d 533
People v. Thomas
Filed 2/23/12
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S048337
v.
REGIS DEON THOMAS,
Los Angeles County
Defendant and Appellant.
Super. Ct. No. BA075063
____________________________________)
Defendant was convicted of the second degree murder of Carlos Adkins
and the first degree murders of Compton Police Officer Kevin Burrell and Reserve
Officer James MacDonald. The jury found true special circumstance allegations
that the officers were killed while engaged in the performance of their duties and
that defendant was convicted of more than one murder. (Pen. Code, § 190.2,
subds. (a)(3) and (a)(7).)1 The jury found him guilty of one count of being a felon
in possession of a firearm. (§ 12021, subd. (a).) Allegations as to all three murder
counts that defendant personally used a firearm within the meaning of section
12022.5 also were found true. Defendant also pleaded guilty to one count of being
a felon in possession of a firearm (§ 12021, subd. (a)) and to one count of being in
possession of a concealed firearm in a vehicle (§ 12025, subd. (a)(1)). The jury set
the penalty for the murders of the police officers at death, and the trial court
denied defendant’s motion for a new trial and the automatic motion to modify the
1
All further statutory references are to the Penal Code, unless otherwise
indicated.
1
death verdict. The trial court imposed a death sentence on all three murder counts
and a total of six years four months for the firearms enhancements on the three
murder charges. The trial court also imposed a term of three years on one of the
weapons counts, and stayed sentence on the other two weapons counts.
This appeal is automatic. (Cal. Const., art. VI, § 11(a); § 1239, subd. (b).)
For the reasons explained post, we modify the judgment to correct the sentence
imposed on count 1 for second degree murder, and in all other respects we affirm
defendant’s convictions and death sentence.
I. FACTS
A. Guilt Phase
1. Murder of Carlos Adkins
In January 1992, Carlos Adkins was shot to death in the apartment of Janice
Chappell, located in the Nickerson Gardens housing project in Los Angeles.
Andre and Janice Chappell and their friend Bertrand Dickson witnessed the
shooting. Dickson, who was visiting Andre Chappell, went out to purchase some
cigarettes. When returning, he thought he heard someone call out his nickname.
Believing it to be his friend Romeo, he responded by calling out, “Romeo, down
here.” Defendant, who was driving by, called out to him, “You don’t know me,
don’t try to sell me something.” Dickson explained that he had not been talking to
defendant. As he was walking toward the Chappell’s apartment, Dickson saw
defendant pointing a gun at him from the window of the car.
Dickson went inside the apartment, where Adkins was playing chess with
Andre Chappell. He heard a banging at the door. Chappell opened the door and
defendant entered, making angry remarks. Defendant had a gun at his side.
Dickson explained that he was calling to his friend Romeo and had not been trying
to sell anything to defendant. Carlos Adkins then stood up. Defendant asked him
2
what he was going to do, stating “I know you’s a Tillman,” and hit Adkins with
the gun. Adkins stated that he was not named Tillman and defendant told him to
“shut up.” Janice Chappell, who had been asleep upstairs, was awakened by the
sounds of arguing and walked downstairs. She observed defendant, Adkins,
Andre Chappell, and Dickson in the living room. Defendant appeared to be angry
and Andre Chappell appeared to be trying to calm him down. Defendant started to
leave the apartment and as he was walking to the door he apologized to Janice
Chappell for the disturbance and stated that the men in the apartment “don’t know
who I am.” Dickson thought he heard defendant identify himself as “Renzi.”
Adkins then stated to defendant, “You don’t know who I am either.” Defendant
came back inside, placed the gun between Adkins’s eyes and threatened to “blow
[his] brains out.” Adkins grabbed the gun and a struggle ensued, during which
two shots were fired.
Dickson ran out of the apartment and called 911. When he went to meet
the ambulance, he was stopped by defendant and another man. They told him not
to say anything about the incident and pistol-whipped him. The two men forced
Dickson into the trunk of their car at gun point, but Dickson got out and ran away.
Adkins subsequently died of a gunshot wound to the right lower chest.
The next day Dickson informed his parole officer that he had witnessed a
shooting, and was advised to contact the police. When he initially met with police
detectives, he described the shooting and told the officers that the shooter’s name
was “Renzi.” Subsequently, Dickson met with a local man named Renzi, who
Dickson knew was not the killer. He informed the police that he had learned that
the correct name was “Reggie.” Dickson identified defendant’s picture in a
photographic display and later selected him during a live lineup. Janice Chappell
also picked defendant’s picture from a photographic display, indicating that he
looked like the man who shot Carlos Adkins.
3
Several months later, defendant was identified during a traffic stop and
arrested on a warrant for the shooting of Carlos Adkins. In September of 1992,
Dickson, who was then incarcerated, was transported to the Compton courthouse
for defendant’s preliminary hearing. He was placed in a holding cell with
defendant, who asked him why he was going to testify. Defendant stated that he
had not meant to “do it” and that it had been his girlfriend’s birthday and he had
argued with her and was upset. He “just went off.” Defendant told Dickson that
Dickson “didn’t want to end up like Andre [Chappell].” Dickson was aware that
Andre had died. He understood defendant to be saying that if he testified, he
could not go back to the projects. Defendant offered to give Dickson $5,000 if he
“turned the cheek.” Dickson told the prosecutor that he had identified the wrong
man, and defendant was released.
Defendant was subsequently recharged with the murder of Adkins. At trial,
Dickson identified defendant as the person who shot Adkins. Dickson had been
promised that if he testified he would serve his sentence outside Los Angeles
County if he were convicted on a pending burglary charge. Janice Chappell also
testified that defendant looked like the person who shot Adkins, stating that she
was 98 percent certain he was the man. Andre Chappell did not testify because he
had been shot and killed in the Nickerson Gardens housing project in March 1992.
The jury found defendant guilty of the second degree murder of Carlos
Adkins.
2. Murders of Officers Burrell and MacDonald
In March of 1992, defendant purchased a red 1992 Chevrolet 454 pickup
truck. Late at night on February 22, 1993, Compton Police Officer Kevin Burrell
and Reserve Officer James MacDonald made a traffic stop of a red pickup truck
on Rosecrans Avenue in Compton. Margaretta Gully was driving past the scene,
4
accompanied by her 12-year-old son, De’Moryea Polidore, in the front seat, and
her 11-year-old daughter and her older son’s girlfriend, Alicia Jordon, in the
backseat. Through the windshield of her car, Gully observed two officers, one
Black and one White, struggling with a suspect. A red pickup truck was parked
nearby with the door on the driver’s side open. Just after Gully passed the scene,
she heard shots fired. Through her rearview mirror, she saw the suspect straddling
one of the officers, who was lying on the ground. Her son Polidore heard shots
and looked through the back window, observing the suspect shoot the White
officer in the head. Polidore then observed the suspect get into the truck and drive
away. As the truck passed their car, passenger Jordon saw the driver’s face
through the side window of the car. At trial, Gully, Polidore, and Jordon testified
that defendant had all of the same features and the same body type as the suspect
they observed.
Both officers were found lying facedown near the police vehicle. Both
officers were in uniform with their guns holstered. There were nine spent nine-
millimeter shell casings in front of the police vehicle. Officer Burrell died of
multiple gunshot wounds — one to the arm, one in the face, one in the left foot,
and one in the head. Officer MacDonald was also shot four times, in the left
armpit, the middle back, the upper back, and behind the right ear, and died of a
wound to the chest.
Defendant’s wife, Deshaunna Cody Thomas, testified that on the evening of
the day the officers were killed, defendant left her apartment in his red pickup
truck, stating that he was going to his mother’s house in Nickerson Gardens.
When she woke up the next morning, defendant was in bed with her and he had a
gun in his hand.
Defendant’s friend, Keyon Pie, testified that sometime in February of 1993,
defendant arrived at her house and asked her to hold a gun for him. He gave her a
5
gun wrapped in a bag and she placed it under her mattress. The next day, a man
she had never seen before came and picked up the gun.
That man, Calvin Cooksey, testified that on February 24 or 25, he was at
the apartment of his cousin, Philip Cathcart, in Gardena. Defendant, who was a
very close friend of Cooksey’s cousin, arrived at the apartment. Cooksey was
watching a news broadcast relating to the shootings of the two officers. Cooksey
looked at defendant, who appeared to be “jittery,” and defendant said, “Yeah, I did
it. . . . They slipped.” Cooksey understood that “slipped” meant that the officers
failed to take precautions. Defendant told Cooksey that when Officer Burrell
approached the truck, defendant kicked the door open and shot him in the chest.
He then shot Officer MacDonald in the face while he was still in the police car.
He then shot each of the officers three more times. Cooksey told defendant he did
not believe him, but shortly thereafter he asked defendant where the gun was and
offered to dispose of it.
Defendant showed Cooksey a house and told Cooksey to return there later
to obtain the gun. When Cooksey returned, the woman in the house gave him a
bag, which contained a SIG SAUER nine-millimeter pistol. He sold the gun to
Robert Rojas.
In early March 1993, defendant was questioned in connection with the
shooting of the officers, but was released. He told Cooksey, “They think I did it,
but they can’t prove it. Somebody is going to have to tell on me in order for them
to bust me on this.” In mid-March 1993, Cooksey was arrested while in
possession of a firearm. A few days later, Cooksey called a sheriff’s deputy with
whom he was familiar as a result of a prior arrest, and told him that he knew who
had killed the officers and that he knew the location of the gun used in the
shooting. Cooksey told the deputy that the name of the killer was “Reggie” or
“Regis Thomas.” He described the sale of the gun. In a subsequent discussion
6
with another deputy, Cooksey asked for help with his pending charges and told the
deputy about the sale of the gun and about the conversation in which defendant
admitted to shooting the officers.
Shortly thereafter, Cooksey was released from county jail and,
accompanied by a detective, located Rojas. Cooksey told Rojas he wanted to buy
back the gun. Rojas contacted Cooksey the next day and informed him that he
could get the gun. Cooksey met Rojas, paid for the gun, and gave it to the
detective. Ballistics evidence indicated that the cartridge casings found at the
scene of the shootings of the officers were fired from this gun.
The jury found defendant guilty of the first degree murders of Police
Officers Kevin Burrell and James MacDonald, and found true the special
circumstance allegations of multiple murder and murder of a police officer.
B. Penalty Phase
1. Prosecution Case in Aggravation
In aggravation, the prosecution presented court records establishing that
defendant had pleaded guilty to being a felon in possession of a firearm and
carrying a loaded firearm in a vehicle (charges that were part of the present case).
The prosecution presented testimony about an incident in 1990, when police
officers stopped defendant while he was driving a van. Defendant pulled into a
parking lot and jumped out, yelling and waving his arms. When an officer
instructed defendant to put his hands behind his back, he did not comply but
instead began to run. Another officer observed defendant reach into his waistband
and throw an object. That officer ordered him to lie on the ground and he
complied, but when the officer began to handcuff defendant he resisted and
fought. He struggled with the two officers, rolling on the ground, kicking, and
hitting them. One officer was struck in the eye and the other one on the lip. A
7
loaded handgun was found in a flower bed in the area where defendant had been
when he threw the object.
Carlos Adkins’s mother and daughter testified about Adkins and how his
death had changed their lives. His mother testified that he was a good father to his
four children and was attending college and studying architecture. Subsequent to
his death, she no longer went out and had been hospitalized for a nervous
breakdown. She still thought about him every day. When asked what she would
say if she could tell him one more thing, she testified that she would say that she
missed him. Adkins’s daughter testified that the family was close and that her
father had cooked breakfast every morning and come home every night. The night
that he was killed was his birthday; his family had prepared dinner and a cake for
him but he had not appeared. When she was told that he had died, she fainted.
Since that time, she had felt nervous and lonely.
The parents of Officers MacDonald and Burrell testified concerning their
sons and how the murders had affected their lives. James MacDonald had always
wanted to be a police officer. He was working his last shift as a reserve officer in
Compton on the night he was shot. He had previously accepted a position with the
San Jose Police Department, which was closer to his parents’ home in Santa Rosa.
MacDonald’s parents initially heard that their son had been shot and was in
surgery, and when they called the Compton Police Department they were told he
was still alive. Shortly thereafter, however, two Santa Rosa police officers arrived
at the house and told them that their son was dead. Services were held for him in
both Santa Rosa and Compton. MacDonald’s father testified that he went to the
cemetery every morning, and that he felt sick anytime he saw a police car making
a traffic stop. If he could talk to his son one more time, he would ask to trade
places with him. MacDonald’s mother testified that she went to the cemetery
twice a day, and she felt that her son had taken a piece of her heart with him. If
8
she could speak to him one more time, she would tell him that she missed him,
was proud of him, and loved him.
Kevin Burrell had been close to his family and had visited them almost
every day. He and his roommate had eaten dinner with his parents on the day he
was killed. His parents did not live far from the location of the shooting and his
mother heard the gunshots. A police officer came to the house and notified them
that their son had been shot, but by the time they got to the hospital, he was dead.
Burrell’s father testified that the pain of his son’s death had not diminished. If he
could talk to his son again, he would tell him to remain ready and not to take
chances. Burrell’s mother testified that she and her son had been very close and
did many things together. After his death, she suffered anxiety attacks and
sometimes could not leave the house; she cannot visit her son’s grave. If she
could talk to her son again, she would tell him that she was proud of him, she
loved him, and she missed him.
2. Defense Case in Mitigation
Defendant’s friends and family members testified about his background and
character and about their relationships with him. Growing up, defendant never
knew his father. He lived with his mother, two sisters, and two brothers. When
defendant was 10 years old, his mother’s boyfriend, Willie Riley, moved into the
house and acted as a father figure to defendant. However, after two years, he
moved out, partly because of defendant’s mother’s drug addiction. Defendant’s
mother had been addicted to cocaine since 1976. As a result, she lost her house.
At one time, she left home for a week. Defendant was upset about his mother’s
drug use and he asked her to stop. He would get upset when people were using
drugs at the house. In the housing project where they lived, people picked on
defendant and bullied him because he was short.
9
Defendant’s wife, Deshauna Cody Thomas, testified that he had been a
good husband to her and a good father to their six children. Their children asked
about him frequently, and she needed his assistance in raising them. Kawasci
Jackson, defendant’s former girlfriend and the mother of his son, testified that
defendant never abused her and that he helped her by disciplining their son when
they spoke by telephone; her son loved his father. A neighbor who worked as a
teacher had observed defendant’s interaction with his son and had observed his
son when defendant talked to his son on the telephone following his incarceration.
She believed that defendant was a nice person. Defendant’s aunt testified that he
had helped a neighbor who was caring for her grandchildren by playing with the
children and buying them ice cream. He also had helped a cousin who was
suffering from cancer by picking up her medication and other things she needed.
Defendant’s mother asked the jury not to kill her son stating, “If you take my son,
you might as well take me too.”
II. DISCUSSION
A. Jury Selection Issues
1. Use of Juror Numbers
Defendant contends the trial court erred in ordering, over defendant’s
objection, that the prospective jurors and trial jurors be referred to by number
only. He contends that no exceptional circumstances justified use of a numbered
jury, and that the use of jury numbers violated his rights to be presumed innocent,
to a fair and public trial, to a reliable guilt and penalty verdict, and to be free from
cruel and unusual punishment, requiring reversal of his convictions and death
sentence. (U.S. Const., 5th, 6th, 8th & 14th Amends.; Cal. Const., art I, §§ 1, 7,
15, 16, & 17.)
10
The prosecutor supported his request to refer to prospective jurors by
number rather than name by informing the court that someone had telephoned a
prosecution witness, Margaretta Gully, and offered her a bribe not to testify, and
that there had been two written threats to unspecified witnesses. Defense counsel
countered that the bribe was not a threat and did not amount to good cause to
conduct the trial with a numbered jury, and that in any event these incidents had
nothing to do with defendant. Defense counsel also argued that the use of
numbers would increase the jurors’ fears. The trial court ruled that numbers
would be used for all prospective jurors but that counsel would have access to
their names. In addition, the court informed the jurors that they were being given
numbers to protect their privacy because of media interest in the trial.
As defendant acknowledges, People v. Goodwin (1997) 59 Cal.App.4th
1084 held that a procedure similar to the one used here was proper, even without a
showing of a particular need to protect jurors’ identities. In Goodwin, the Los
Angeles County Superior Court had adopted a policy to refer to all potential and
actual jurors by number in all criminal trials, in order to implement the
requirement of Code of Civil Procedure section 237, subdivision (a)(2) that the
names of jurors not appear in the transcript of a criminal case. (Goodwin, supra,
at p. 1089.) As in the present case, the court and counsel had access to the jurors’
names. (Ibid.) The appellate court held that the procedure did not violate the
defendant’s right to a public trial because the trial was open and the jurors’ faces
were visible to anyone present. (Id. at p. 1093.) In addition, any risk that the jury
would speculate that the use of numbers related to the defendant’s dangerousness
was diminished because the trial court indicated it would admonish the jury that
the procedure was required in all criminal cases and had nothing to do with the
defendant. (Id. at p. 1091, fn. 3.)
11
Defendant contends that Goodwin is inconsistent with federal law, which
he argues requires extraordinary circumstances to justify an anonymous jury. We
need not decide whether Goodwin was correctly decided because the procedure
employed in the present case was proper even under the federal authorities upon
which defendant relies. The federal cases hold that a trial court’s “decision to
empanel an anonymous jury is entitled to deference and is subject to abuse of
discretion review.” (United States v. Krout (5th Cir. 1995) 66 F.3d 1420, 1426;
accord, United States v. Ross (11th Cir. 1994) 33 F.3d 1507, 1519.) Federal courts
recognize two potential problems with an anonymous jury: (1) jurors may infer
that the defendant is dangerous, thereby implicating the defendant’s right to a
presumption of innocence, and (2) the use of an anonymous jury may interfere
with the defendant’s ability to conduct voir dire and exercise peremptory
challenges. (United States v. Shryock (9th Cir. 2003) 342 F.3d 948, 971.)
Consequently, federal cases permit an anonymous jury “where (1) there are strong
grounds for concluding that it is necessary to enable the jury to perform its
factfinding function, or to ensure juror protection; and (2) reasonable safeguards
are adopted by the trial court to minimize any risk of infringement upon the
fundamental rights of the accused.” (United States v. DeLuca (1st Cir. 1998) 137
F.3d 24, 31; accord, United States v. Shryock, supra, at p. 971; United States v.
Ross, supra, at pp. 1519-1520.)
We find no abuse of discretion in the trial court’s decision to order that the
jurors be identified by numbers. The prosecutor informed the court that two
witnesses had been threatened and one had been offered a bribe. These incidents
provided reasonable grounds for concern that an attempt might be made to
unlawfully interfere with the jurors’ performance of their duties. Any interference
with defendant’s right to conduct voir dire was minimized because the jurors were
not completely anonymous — counsel had access to the names of the jurors.
12
Defendant contends that the procedure interfered with his ability to assist his
counsel in jury selection because he was not personally allowed access to the
jurors’ names. Defendant argues that he might not have recognized a juror’s face
but might have recognized a name and realized he knew something about the juror
or the juror’s family that might cause the juror to be biased. Defendant’s
contention is speculative and in any event any minor interference with the conduct
of voir dire that may have occurred was justified by the court’s legitimate
concerns for the safety and integrity of the jury.
As to the presumption of innocence, federal cases have recognized that “the
danger that the jury might infer that the need for anonymity was attributable to the
defendant’s character is minimized when the trial court gives the jurors a plausible
and nonprejudicial reason for hiding their identities.” (United States v. Ross,
supra, 33 F.3d at p. 1520 [court explained it wanted to insulate the jury from
contact from either side and that its decision did not reflect on the defense]; United
States v. Shryock, supra, 342 F.3d at p. 972 [trial court instructed the jury that the
“reason for their anonymity was to protect their privacy from curiosity-seekers”];
United States v. Thomas (2d Cir. 1985) 757 F.2d 1359, 1365 [trial court’s
explanation that anonymity was to deter unwanted press attention minimized
potential for prejudice to the defendants].) Here, the court’s explanation that
numbers were being used to protect the jurors’ privacy in light of media interest in
the case served to minimize the possibility of prejudice to defendant.
2. Denial of Individual Sequestered Death Qualification Voir Dire
Defendant contends the trial court erred in refusing his request that the
court conduct individualized, sequestered voir dire of the jurors regarding their
views on the death penalty, in accordance with Hovey v. Superior Court (1980) 28
Cal.3d 1. Hovey was abrogated by the adoption of Code of Civil Procedure
13
section 223, which provides that “[v]oir dire . . . shall, where practicable, occur in
the presence of the other jurors in all criminal cases, including death penalty
cases.” Defendant urges us to reconsider our conclusions that Hovey was
abrogated by statute and that individualized sequestered voir dire is not
constitutionally required — conclusions we have reaffirmed many times — but he
provides no compelling reason for us to do so. (See, e.g., People v. Lewis (2008)
43 Cal.4th 415, 494; People v. Stitely (2005) 35 Cal.4th 514, 537-538 (Stitely);
People v. Box (2000) 23 Cal.4th 1153, 1180; People v. Waidla (2000) 22 Cal.4th
690, 713.)
Defendant alternatively contends the trial court abused its discretion in
denying the motion for sequestered voir dire. Under Code of Civil Procedure
section 223, the trial court retains the discretion to conduct sequestered voir dire if
it concludes that collective voir dire would not be practicable. (See Covarrubias
v. Superior Court (1998) 60 Cal.App.4th 1168.) At trial, both defense counsel and
the prosecutor requested sequestered voir dire, because both believed that if jurors
were questioned individually they were more likely to be candid and less likely to
be influenced by responses they heard from other jurors. Neither party, however,
cited any particular circumstances of the present case that would justify
conducting individual voir dire. Each juror filled out an extensive questionnaire,
and was instructed to mark any question addressing sensitive or confidential
matters to which he or she wished to respond in private. After the court
questioned the jurors who were seated in the jury box, the attorneys were given the
opportunity to inquire further. Under similar circumstances, we have held that the
14
trial court did not abuse its discretion in denying individual sequestered voir dire.
(See People v. Brasure (2008) 42 Cal.4th 1037, 1050-1051.)2
3. Excusal for Cause of Two Prospective Jurors
Defendant contends the trial court erred under Wainwright v. Witt (1985)
469 U.S. 412 (Witt) in granting the prosecution’s challenge for cause of two
prospective jurors based on their inability to impose the death penalty. He
contends the error violated his rights to an impartial jury, a fair capital sentencing
hearing, and due process of law under the federal and state Constitutions.
A prospective juror in a capital case may be excused for cause on the basis
of his or her views regarding the death penalty only if those views would prevent
or substantially impair the performance of the juror’s duties. (Witt, supra, 469
2
Defendant contends that the collective voir dire adversely influenced jurors’
ability to be candid, but he cites only one example of a juror who allegedly was
not honest about his views concerning the death penalty. On his questionnaire,
this prospective juror clearly agreed with the proposition that anyone who
intentionally kills another person should always receive the death penalty. During
collective voir dire, he reaffirmed this answer to defense counsel and added that he
would vote for death “99 out of a hundred.” In response to leading questions by
the prosecutor during collective voir dire, he indicated that he could vote for a
sentence of life imprisonment without parole. Because this juror gave what
defense counsel believed were inconsistent or even dishonest answers about his
views concerning the death penalty, the court questioned him further at a sidebar
conference. Outside the hearing of other jurors, he explained to the court that
there might be one chance in a thousand that he would vote for life, and that he
could think of circumstances that might convince him that life imprisonment was
appropriate, such as if the person were under the influence of drugs. Nothing in
this record supports defendant’s contention that collective voir dire caused this
prospective juror to be less than candid about his views. Even if it did, counsel
had the opportunity to thoroughly examine him concerning his views and the court
conducted additional voir dire individually. “As in other recent cases, defendant
has not shown on this record that ‘ “questioning prospective jurors in the presence
of other jurors prevented him from uncovering juror bias.” ’ [Citations].” (People
v. Brasure, supra, 42 Cal.4th at p. 1053.)
15
U.S. at p. 424; People v. Stewart (2004) 33 Cal.4th 425, 441; People v.
Cunningham (2001) 25 Cal.4th 926, 975.) We will uphold the trial court’s
decision to excuse a prospective juror under Witt if that decision is fairly
supported by the record. (Stewart, supra, at p. 441; People v. Cunningham, supra,
at p. 975.) The court must have “sufficient information . . . to permit a reliable
determination” whether a prospective juror’s views would disqualify the juror
from service in a capital case. (Stewart, supra, at p. 445.) Even if the prospective
juror has not expressed his or her views with absolute clarity, the juror may be
excused if “the trial judge is left with the definite impression that a prospective
juror would be unable to faithfully and impartially apply the law.” (Witt, supra, at
p. 425.) If, after reasonable examination, the prospective juror has given
conflicting or equivocal answers, and the trial court has had the opportunity to
observe the juror’s demeanor, we accept the court’s determination of the juror’s
state of mind. (People v. DePriest (2007) 42 Cal.4th 1, 20-21; People v. Moon
(2005) 37 Cal.4th 1, 14, 16.)3
3
As a threshold matter, defendant takes issue with the standards we have
applied to such issues and contends that we have erred in deferring to the trial
court’s determination when a prospective juror gives conflicting or equivocal
answers. He contends that the United States Supreme Court rejected such
deference to the trial court in Adams v. Texas (1980) 448 U.S. 38 and Gray v.
Mississippi (1987) 481 U.S. 648. We have previously rejected this contention.
(People v. Schmeck (2005) 37 Cal.4th 240, 262-263; People v. Moon, supra,
37 Cal.4th at pp. 14-15.) Furthermore, the high court has more recently reiterated
its view that “[c]ourts reviewing claims of Witherspoon-Witt error . . . owe
deference to the trial court, which is in a superior position to determine the
demeanor and qualifications of a potential juror.” (Uttecht v. Brown (2007) 551
U.S. 1, 22.)
16
a. Randy J.
Defendant contends that Prospective Juror Randy J. was erroneously
excused because his views on the death penalty would not prevent him from
following the law. Defendant points to the circumstances that Randy J. stated he
could follow the law if he felt the death penalty were appropriate and that he could
impose the death penalty if a person murdered 50 people.
Even if a prospective juror expresses a willingness to follow the law, he or
she may be excused under Witt if other responses “furnished substantial evidence
of [his or] her inability to conscientiously consider a death verdict.” (People v.
Barnett (1998) 17 Cal.4th 1044, 1114-1115 [upholding dismissal of juror even
though some of her responses reflected a willingness to follow the law and the
court’s instructions].) Randy J.’s responses to voir dire, taken as a whole, clearly
support the trial court’s conclusion that his views concerning the death penalty
“would prohibit him from doing his job properly.” Asked whether he could see
himself choosing the death penalty in an appropriate case, he stated “I cannot
choose the death penalty. . . . Because it’s something I have to live with . . . .” He
stated that he would follow the law and the court’s instructions, but when asked
whether he could impose death he responded, “I would say not.” Asked whether
he could impose the death penalty if he thought the facts warranted it, he said,
“No,” explaining, “Because it’s a tough decision.” Asked whether there was a
circumstance in which he could make that decision, he replied, “Probably if [the
defendant] murdered 50 people.” Randy J. indicated that he could “probably”
follow the court’s instructions and when asked whether he could impose the death
penalty if he felt it was appropriate he responded, “If I felt that way.” When asked
whether the death penalty goes against his moral or religious beliefs, however, he
responded, “It goes against everything I stand for. I can’t live with myself putting
[a] death sentence on somebody and living with that.” When asked finally
17
whether he could see himself coming in after the deliberations and stating in open
court that the defendant should die he stated, “I don’t think I’m the man for it.”
That the prospective juror might possibly have been able to overcome his
views in a case involving 50 victims does not establish that he could
conscientiously consider the death penalty in a case like the present one. (See
People v. Roybal (1998) 19 Cal.4th 481, 519 [upholding dismissal of juror in a
case involving a single victim, even though juror might have been able to impose a
death sentence in a case involving multiple victims].) The trial court did not err in
concluding that Randy J.’s views on the death penalty would substantially impair
his ability to perform the duties of a juror.
b. Milton T.
Defendant also challenges the excusal of Prospective Juror Milton T. On
his questionnaire, Milton T. indicated that he could impose the death penalty or
life without possibility of parole in an appropriate case. But he also stated, “If
there are people strong willed enough to give the other person the death penalty,
that’s that. I’m not sure that I can handle it. . . . I just don’t know if I could
mentally or morally handle sentencing another person to [death].” Milton T.
indicated that he was in favor of the death penalty if a child were intentionally
killed and did not indicate that he would always vote for life; he agreed that he
could follow the law. He also wrote that, because of his moral and religious
views, he was reluctant to judge others, but that he could set aside his personal
feelings and follow the law. In response to a question concerning whether there
was any reason he would prefer not to serve he wrote, “I don’t like deciding a case
of such a serious moral matter.”
When the court questioned Milton T. about these responses he stated, “The
situation with my duty as a juror, I guess I would have to go beyond the way I feel
18
and make the decision.” He stated, however, that based on what he knew of the
circumstances of this case, “it would be really hard for me to come up with
something like that.” He agreed that if the jury reached the penalty phase, he was
capable of following the law and weighing whatever was presented. But in
response to questioning by the prosecutor, he stated he was “very uncomfortable”
with the prospect of deciding whether to impose capital punishment. Asked
whether he would have difficulty making the decision to return a verdict of death
he stated, “It’s my job to do so, so I would. But my own personal self, I would
have to deal with it after I leave from here.” Asked to clarify whether he could
vote that the defendant is to die he replied, “I can’t say if I can answer that
truthfully or not because I haven’t been through it . . . . I’m not sure if I could be
able to go through with it. I don’t know if I would be able to come up with that
verdict or not.” The prosecutor asked, “Is it your opinion then that regardless of
the evidence . . . is it your state of mind now that you don’t know if you could, in
fact, come in with a verdict that the defendant is to die.” He responded, “Right.”
The court granted the prosecutor’s challenge for cause, explaining, “I think
emotionally, truly from his demeanor and even while you two are asking questions
of other jurors, I watched him and I watched his body language, and I think that
his personal views would substantially impair him from performing his duties as a
juror . . . and I think that the man is trying. But I don’t think that he can do the job
under the standard.”
Milton T.’s answers demonstrate that he was not opposed to the death
penalty in theory, but that he was extremely reluctant to make the decision
whether someone should be executed. Although he expressed a willingness to
follow the law, when asked whether he could actually impose the death sentence,
he indicated that he did not know whether he could, regardless of what the
evidence might be. His equivocal answers, combined with the trial court’s
19
observations of his demeanor, convinced the trial court that his ability to perform
the duties of a juror in a capital case would be substantially impaired by his
reluctance to be personally responsible for sentencing someone to death. Giving
appropriate deference to the trial court’s determination of the prospective juror’s
state of mind based on its firsthand observations, we find no error. (See People v.
Solomon (2010) 49 Cal.4th 792, 836 [trial court did not err in excusing juror who,
although not opposed to the death penalty in theory, “was unable to state that she
could set aside her reluctance to be personally responsible for sentencing someone
to death and vote for the death penalty in an appropriate case”]; People v.
Cunningham, supra, 25 Cal.4th at p. 981 [trial court did not err in excusing
“prospective juror on the basis that she could not personally impose the death
penalty despite viewing it as an appropriate punishment”].)
4. Prosecutor’s Use of Peremptory Challenges to Strike African-
American Prospective Jurors
Defendant contends the trial court erred in denying his motion for a mistrial
claiming that the prosecutor’s use of peremptory challenges was based on race, in
violation of People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler) and Batson v.
Kentucky (1986) 476 U.S. 79 (Batson). At the time defendant made the motion,
the prosecutor had used peremptory challenges against six African-American
prospective jurors. Defense counsel stated that none of the African-Americans
except one, Leticeia H., had expressed any reservation about the death penalty.
The trial court ruled that defendant had not established a prima facie case of racial
discrimination and that, consequently, the prosecutor was not required to provide
an explanation for why he had challenged these jurors.
A prima facie case of racial discrimination in the use of peremptory
challenges is established if the totality of the relevant facts gives “ ‘rise to an
inference of discriminatory purpose.’ ” (Johnson v. California (2005) 545 U.S.
20
162, 168.) Johnson reversed a prior decision of this court holding that the
applicable standard was whether it was “more likely than not” that purposeful
discrimination had occurred. (See People v. Johnson (2003) 30 Cal.4th 1302,
1318.) In cases like the present one, in which it is not clear whether the trial court
applied the proper standard, “we independently determine whether the record
permits an inference that the prosecutor excused jurors on prohibited
discriminatory grounds.” (People v. Carasi (2008) 44 Cal.4th 1263, 1293
(Carasi).) In doing so, we must consider “all relevant circumstances.” (Batson,
supra, 476 U.S. at p. 96.)
Defendant cites the following as supporting an inference that the prosecutor
exercised six peremptory challenges on the basis of race: The case involved an
interracial offense (defendant is African-American, and one of his victims, Officer
MacDonald, was Caucasian); two of the African-American jurors challenged by
the prosecutor gave answers that appeared to strongly favor the prosecution
(Alyn C. stated that she favored the death penalty for repeat offenders and
Jacqueline R. had a friend in the Compton Police Department); and the excluded
jurors had little more than their group membership in common and were otherwise
a diverse group of individuals that would have made acceptable jurors. (See
Wheeler, supra, 22 Cal.3d at p. 280; People v. Turner (1986) 42 Cal.3d 711, 719).
These circumstances do not raise an inference that the prosecutor exercised
peremptory challenges based on race. Although one of the victims was Caucasian,
the other two victims were African-American. Contrary to defendant’s contention,
the answers given by Prospective Jurors Jacqueline R. and Alyn C. were not so
obviously favorable to the prosecution that it can be inferred that the prosecutor’s
excusal of these two must have been based on race. Although Jacqueline R. had a
friend in the police department and could have been viewed as a juror who would
be sympathetic to the victims, she had mixed feelings about the death penalty and
21
at one time did not believe in it at all. In addition, her son was in prison for armed
robbery, and she stated that she believed he was not treated fairly because the
prosecutor in that case was trying to make an example of him. (See People v.
Cornwell (2005) 37 Cal.4th 50, 70 [excused juror’s voir dire disclosed numerous
reasons for a prosecutor to excuse her, including personal experience with an
allegedly unfair homicide prosecution of a close relative].) Although no obvious
reason appears why the prosecutor would have chosen to strike Alyn C., neither
were her answers so favorable to the prosecution that it would be reasonable to
infer, solely on that basis, that she was excused because of her race.4
Even if the struck African-American jurors had nothing in common with
each other besides their race, that circumstance does not, in itself, create an
inference that they were excused because of their race where, as here, obvious
bases for the prosecutor’s decision to excuse many of the jurors appear in the
4
Alyn C. was divorced and the mother of two children. She worked at the
Department of Motor Vehicles. She had a cousin who worked for the Los Angeles
Police Department as a dispatcher, and she had no negative experiences with the
police. She indicated she would be reluctant to serve as a juror if graphic
photographs of a victim might be in evidence. She believed it was fair to require
the prosecution to prove defendant’s guilt beyond a reasonable doubt. Although
she once felt differently, she now believed in the death penalty for repeat
offenders. She would not use the death penalty if the killing was not premeditated
or was committed in self-defense. During voir dire, the prosecutor questioned her
on two points. He asked about the response on her questionnaire indicating that
her religious views might make it difficult for her to judge another person. She
clarified that she should have answered “no” to that question. The prosecutor also
questioned her about her statement on the questionnaire that she believed it was
possible for a witness to lie in order to cover something up or make something
appear worse than it actually was. She could not remember any example of what
she had in mind when she wrote that answer, and explained that she filled out the
questionnaire at midnight and she was helping her two children with their
homework at the time.
22
record. As noted above, Jacqueline R. had doubts about the death penalty and
believed that her son had been prosecuted unfairly. Diana T. wrote on her
questionnaire that she did not believe in the death penalty and that she would
always vote for life and reject death, regardless of the evidence presented at the
penalty trial. Leticeia H. indicated on her questionnaire that, based on her
personal and religious beliefs, she did not believe that a criminal should be put to
death and that she would always vote for life. It is not apparent exactly why the
prosecutor would have wanted to excuse Jeanine P., but the record demonstrates
that the trial court observed something about her that caused it to believe that she
would be perceived as a problem by the prosecution.5
Although no obvious reason appears why the prosecutor would have chosen
to strike Alyn C. or Patricia S., the absence of a reason that is apparent on the
record does not, in the context of all the other circumstances, suggest that the
reason was race. Here, “the prosecution’s pattern of excusals and acceptances
during the peremptory challenge process reveals no obvious discrimination”
against African-American jurors. (Carasi, supra, 44 Cal.4th at p. 1294.) The trial
court observed that the first time the prosecution accepted the panel, it appeared to
the court that there were two African-American males and two African-American
females on the panel. The court noted that the prosecution subsequently accepted
the panel with three African-Americans and that, at the time the motion was made,
5
Jeanine P. stated she was willing to impose the death penalty, although she
had not really thought about it before and was not sure that it was “helpful.” After
the prosecutor challenged two other jurors for cause, the court asked, “You’re not
even going to challenge Ms. [P.]?” Subsequently, the prosecutor stated that he
“got bad vibes” from her and wanted time to review her answers on the
questionnaire. After a short break, he exercised a peremptory challenge against
her.
23
the panel included two African-American females and one female who was half
African-American.6 At the time of defendant’s Wheeler motion, African-
Americans constituted 26 percent of the prospective jurors who had been called
into the jury box (15 out of 61) and the prosecutor had exercised 37 percent of his
challenges (6 out of 16) against African-Americans. This disparity is not
significant enough, in itself, to suggest discrimination. (See Carasi, supra, at
pp. 1291, 1295 [no prima facie case of gender discrimination even though
prosecutor used 20 out of 23 peremptory challenges against female prospective
jurors]; People v. Bonilla (2007) 41 Cal.4th 313, 345 [no prima facie case of
gender discrimination even though women represented 38 percent of the jury pool
and the prosecutor used 67 percent of his strikes against women].) We conclude
that the totality of facts did not give rise to an inference of discrimination.
5. Alleged Prosecutorial Misconduct During Voir Dire
Defendant contends the prosecutor committed prejudicial misconduct
during voir dire by explaining the presumption of innocence to prospective jurors
in a manner that undermined that concept, thereby violating his rights to due
process of law, proof beyond a reasonable doubt, the presumption of innocence, a
fair jury trial, and a reliable and nonarbitrary penalty determination, as guaranteed
by the state and federal Constitutions. The prosecutor described a hypothetical
situation in which the prospective juror is in a cashier line in a grocery store and
personally observes a person rob and murder the cashier. The prosecutor
commented, “That person, if that person could be caught, would be prosecuted for
6
Respondent states, without contradiction, that at the end of jury selection,
the jury and alternates included eight African-Americans, one Afro Cuban, one
half African-American, one French Creole, one Egyptian, two Hispanics, and four
Caucasians.
24
murder. But that person would be presumed innocent, even though you saw it
happen right before your eyes. The law places this legal presumption that that
person is presumed innocent until one of two things happens. One, the person
comes into the courtroom and says, ‘I’m guilty,’ or, two, 12 jurors decide that he’s
guilty. And until and unless that occurs, that person is presumed innocent and it
wouldn’t matter if just you by yourself witnessed it or if there were 40 people in
the line and 40 people observed it. The trial court overruled defendant’s objection
to these statements, but explained to the prospective jurors that they would not
serve as jurors in a case if they had witnessed the crime.
“In general, a prosecutor commits misconduct by the use of deceptive or
reprehensible methods to persuade either the court or the jury.” (People v. Price
(1991) 1 Cal.4th 324, 447.) “When, as here, the point focuses on comments made
by the prosecutor before the jury, the question is whether there is a reasonable
likelihood that the jury construed or applied any of the complained-of remarks in
an objectionable fashion.” (People v. Berryman (1993) 6 Cal.4th 1048, 1072.)
We find no misconduct. Defendant argues that the prosecutor’s comments
“diluted the presumption of innocence by suggesting to the jury that it did not need
to put aside any bias [the jurors] might have against [defendant] due to the fact
that he stood in front of them indicted and accused by the prosecution of a crime
because there was a significant possibility that he was actually guilty, just like the
murderer of the cashier in the prosecution’s example.” We disagree. Although
one of the conclusions a juror might have drawn from the prosecutor’s example
was that the presumption of innocence does not mean that the defendant actually is
innocent, the main point of his example was that the presumption of innocence
applies in court once the person has been charged with a crime, regardless of the
circumstances. In other words, jurors must set aside any biases they might have
against the defendant, presume him to be innocent, and convict him only if his
25
guilt has been proved in court beyond a reasonable doubt. The prosecutor’s
statements “were not legally erroneous, and defendant had ample opportunity to
correct, clarify, or amplify the prosecutor’s remarks through his own voir dire
questions and comments.” (People v. Medina (1995) 11 Cal.4th 694, 741.)7
“Moreover, as a general matter, it is unlikely that errors or misconduct
occurring during voir dire questioning will unduly influence the jury’s verdict in
the case. Any such errors or misconduct ‘prior to the presentation of argument or
evidence, obviously reach the jury panel at a much less critical phase of the
proceedings . . . .’ ” (People v. Medina, supra, 11 Cal.4th at p. 741.)
B. Guilt Phase Issues
1. Trial Court’s Refusal to Sever the Carlos Adkins Murder Charge
Defendant contends the trial court’s denial of his motion to sever the
murder charge of Carlos Adkins from the murder charges of the two police
officers was error and denied him a fair trial. In the trial court, defendant argued
that evidence regarding the shooting of the police officers was likely to inflame
the jury so much that he could not receive a fair trial on the Adkins homicide.
Additionally, defense counsel indicated there was a possibility that defendant
might testify regarding self-defense or imperfect self-defense in the trial of the
Adkins homicide, but would not testify in connection with the police officer
counts. The trial court denied the motion.
Defendant concedes that joinder of the three murder charges was proper
under section 954, which permits joinder of “two or more different offenses of the
7
We found no misconduct in a case in which a prosecutor made a
comparable comment during voir dire, stating that “even Jack Ruby (whose killing
of Lee Harvey Oswald was broadcast on national television) had the right to a jury
trial.” (People v. Seaton (2001) 26 Cal.4th 598, 636.)
26
same class of crimes or offenses.” (Ibid.; see People v. Soper (2009) 45 Cal.4th
759, 771 (Soper).) This requirement was clearly met in the present case because
all three counts alleged murder. Even when the requirements for joinder are
satisfied, however, the court “in the interests of justice and for good cause shown,
may in its discretion order that the different offenses or counts set forth in the
accusatory pleading be tried separately . . . .” (§ 954.) On appeal, defendant must
show that the trial court’s ruling was an abuse of discretion. (Soper, supra, at
p. 774.) In order to establish an abuse of discretion, defendant must make a “clear
showing of prejudice.” (People v. Mendoza (2000) 24 Cal.4th 130, 160.)
“In determining whether a trial court abused its discretion under section
954 in declining to sever properly joined charges, ‘we consider the record before
the trial court when it made its ruling.’ ” (Soper, supra, 45 Cal.4th at p. 774,
quoting Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1220.) We consider
first whether the evidence of the two sets of offenses would have been cross-
admissible if the offenses had been separately tried. (Soper, supra, at pp. 774-
775.) If the evidence would have been cross-admissible, then joinder of the
charges was not prejudicial. Defendant contends that the evidence would not have
been cross-admissible in separate trials, and we agree. The two sets of crimes
were entirely unrelated and the only similarity between them is that a nine-
millimeter handgun (but not the same gun) was used in each incident. Respondent
does not argue to the contrary.
However, this does not end our inquiry. Because the evidence would not
have been cross-admissible, we next inquire “whether the benefits of joinder were
sufficiently substantial to outweigh the possible ‘spill-over’ effect of the ‘other-
crimes’ evidence on the jury in its consideration of the evidence of defendant’s
guilt of each set of offenses.” (People v. Bean (1988) 46 Cal.3d 919, 938; accord,
Soper, supra, 45 Cal.4th at p. 775; see § 954.1 [lack of cross-admissibility does
27
not require severance].) We consider “[1] whether some of the charges are likely
to unusually inflame the jury against the defendant; [2] whether a weak case has
been joined with a strong case or another weak case so that the total evidence may
alter the outcome of some or all of the charges; and [3] whether one of the charges
is a capital offense, or the joinder of the charges converts the matter into a capital
case.” (People v. Mendoza, supra, 24 Cal.4th at p. 161.) “We then balance the
potential for prejudice to the defendant from a joint trial against the countervailing
benefits to the state.” (Soper, supra, at p. 775.)
The trial court did not abuse its discretion in refusing to sever the Adkins
case. As to the first consideration, there may have been a potential to inflame the
jury because of the evidence of the murders of Officers Burrell and MacDonald.
The victims were police officers and the killings were particularly callous — both
officers were taken by surprise during a traffic stop and shot at close range
multiple times after they had fallen. However, defendant’s shooting of Adkins
was also callous; it arose from defendant’s brief and unwelcome entry into a
residence — defendant was inexplicably hostile, armed with a gun and threatening
the occupants. Adkins was killed after a struggle that was preceded by defendant
putting a gun to Adkins’s head, and threatening to blow his brains out. Under
these circumstances, we cannot say that the charges of the police officer shootings
were particularly likely to inflame the jury against defendant.
Second, this is not a case in which a weak case has been joined with a
stronger case. In support of the motion to sever in the trial court, defendant
contended that the evidence supporting the Adkins case was relatively weak,
because Dickson had refused to testify at the preliminary hearing and Janice
Chappell had not positively identified defendant. He argued that, by contrast, the
evidence as to the murders of the two officers was strong and was also highly
inflammatory. The prosecution fully expected Dickson to testify at trial, however,
28
and expected that he would not only identify defendant, but that he also would
describe defendant’s attempts to dissuade him from testifying. Thus, based on the
record before the trial court at the time of the motion, it appeared that the evidence
in both cases was strong. Even if the evidence in one case might be considered
stronger than the other, “[a] mere imbalance in the evidence . . . will not indicate a
risk of prejudicial ‘spillover effect,’ militating against the benefits of joinder and
warranting severance of properly joined charges.” (Soper, supra, 45 Cal.4th at
p. 781.)
Third, although joinder did not convert the matter into a capital case, the
charges of murdering the two officers were capital offenses and joinder resulted in
the Adkins homicide being charged as a capital offense. Our concern in such
situations is whether joinder “would tend to produce a conviction when one might
not be obtainable on the evidence at separate trials. Clearly, joinder should never
be a vehicle for bolstering either one or two weak cases against one defendant,
particularly where conviction in both will give rise to a possible death sentence.”
(Williams v. Superior Court (1984) 36 Cal.3d 441, 454.) Here, there was no
significant risk of an unjustified conviction on any of the murder charges because,
as discussed above, evidence in both cases was strong.
In light of the strength of the evidence in both cases, any potential to
inflame the jury based on the nature of the evidence of the shootings of the police
officers was not significantly likely to influence the jury’s verdict in the Adkins
case. Weighing against the small risk of prejudice are the substantial benefits of
joinder, which include efficiencies in both the trial and appellate courts. (Soper,
supra, 45 Cal.4th at pp. 781-782.) Defendant has failed to establish that the trial
court abused its discretion in refusing to sever the Adkins case.
Defendant argues that a factor supporting the severance motion was defense
counsel’s indication that defendant might wish to testify in the Adkins case but not
29
in the case involving the police officers. (See Cross v. United States (D.C.
Cir. 1964) 335 F.2d 987, 989 [holding joinder to be prejudicial when defendant
wanted to testify on one count but not, with good reason, on the other count, which
involved an entirely separate incident].) This court has recognized, however, that
severance is not required on such grounds unless the defendant makes a showing
that “ ‘ “he has both important testimony to give concerning one count and a
strong need to refrain from testifying on the other.” ’ ” (People v. Sandoval
(1992) 4 Cal.4th 155, 174, quoting Baker v. United States (D.C. Cir. 1968) 401
F.2d 958, 977.) The showing must be specific enough to permit the court to
“weigh the considerations of economy and expedient judicial administration
against the defendant’s interest in having a free choice with respect to testifying.”
(Sandoval, supra, at p. 174.) In Sandoval, we concluded that defendant’s showing
was insufficient because he merely made a “passing reference” to the
circumstance that he wanted to testify in one case and not the other, and did not
explain the nature of the testimony he wanted to give in the one case or his reasons
for not wanting to testify in the other. (Id. at p. 173.) Likewise here, defense
counsel merely indicated that defendant might wish to testify in the Adkins case as
to self-defense or imperfect self-defense. He made no offer of proof as to what the
testimony might be or why he did not wish to testify in the other case.
Consequently, the court was not afforded sufficient information to enable it to
weigh the considerations favoring joinder against “the defendant’s interest in
having a free choice with respect to testifying.” (Id. at p. 174.)
Even if the trial court properly denied severance of the Adkins charge, “we
look to the evidence actually introduced at trial to determine whether ‘a gross
unfairness has occurred such as to deprive the defendant of a fair trial or due
process of law.’ ” (People v. Bean, supra, 46 Cal.3d at p. 940, quoting People v.
Turner (1984) 37 Cal.3d 302, 313.) Viewing the case as it was actually tried, we
30
find no such gross unfairness. The evidence in the Adkins case proved to be
strong, just as the prosecution contemplated. Dickson positively identified
defendant as the perpetrator and also testified as to defendant’s attempts to
dissuade him from testifying. The testimony in the other case was equally strong.
Although the eyewitnesses who viewed the shooting of the officers had only a
brief, fleeting opportunity to view the perpetrator, their testimony was bolstered by
ballistics evidence tying defendant to the crime. The jury rejected the first degree
murder charge as to Adkins, and convicted him of second degree murder. Thus, it
is clear that the jury was able to follow the instructions to consider each offense
separately and was not prejudiced by evidence of the other offenses when it
considered defendant’s state of mind in the Adkins case. (See CALJIC No. 17.02
[“You must decide each Count . . . separately”].)
2. Admission of Autopsy Report and Coroner’s Testimony Regarding
Officer Kevin Burrell
The autopsy of Kevin Burrell was performed by Dr. James Wegner, who
was deceased at the time of trial. Forensic pathologist Dr. James Ribe testified at
trial about the results of the autopsy. Based on Dr. Wegner’s report, Dr. Ribe
stated that the cause of death was multiple gunshot wounds and described the four
wounds on Officer Burrell’s body — to the arm, to the chin, to the left foot, and to
the head. Dr. Ribe also illustrated his testimony with a display of six photographs
that showed these wounds, X-rays of some of the wounds, and a mannequin into
which rods had been inserted to illustrate the trajectories of the bullets.
Dr. Ribe gave his own opinions regarding the inferences that could be
drawn from these wounds. He opined that the wound to the arm would have
rendered the officer unable to use his right hand, because the X-ray demonstrated
that the arm was shattered. The arm wound was consistent with the shooter
standing in front of the officer and the officer either reaching back for a weapon or
31
buckling over. The chin wound was consistent with the officer bending forward at
the waist at the time the shot was fired. The wound to the foot was consistent with
the officer being on his back on the ground and lifting his foot to fend off a shot.
A bullet hit the top of the officer’s head, then broke into two pieces, one of which
came out and one of which entered the brain. Holes in the officer’s jacket, shirt,
and boot were consistent with the wounds as he described them.
Defendant contends that the autopsy report and Dr. Ribe’s testimony based
on that report constituted testimonial hearsay, the admission of which violated his
constitutional right to confront the witnesses against him. (Bullcoming v. New
Mexico (2011) 564 U.S. ___ [131 S.Ct. 2705]; Melendez-Diaz v. Massachusetts
(2009) 557 U.S. ___ [129 S.Ct. 2527]; Crawford v. Washington (2004) 541 U.S.
36 (Crawford).)
Putting aside the merits, defendant’s confrontation clause claim fails
because even if there was error, it was harmless beyond a reasonable doubt. The
fact and cause of Officer Burrell’s death were sufficiently established by other
evidence. Eyewitnesses described the shootings and the condition of the officer
when he was found at the scene. The photographs showing the location of the
wounds, the officer’s boot and clothing, and the X-ray of Officer Burrell’s arm
showed his injuries, and this evidence clearly did not constitute testimonial
hearsay. Furthermore, the cause of death was not actively contested at trial.
Defense counsel, hoping to avoid exposing the jury to autopsy photographs and
other evidence he considered to be inflammatory, offered to stipulate to the cause
of death and the nature of the wounds. Defense counsel stated, “There is no
dispute that there was an intent to kill. There is no dispute regarding the nature of
the wounds.” Consistent with that statement, defense counsel conducted the
briefest of cross-examinations, merely clarifying that Dr. Ribe could not determine
in what order the four gunshot wounds were inflicted.
32
The issues that were contested at trial were the identity of the killer and
whether the killing was premeditated. Nothing in the autopsy report or the
testimony of Dr. Ribe implicated defendant as the person who killed the two
officers. The only portions of Dr. Ribe’s testimony that could have contributed to
a finding of premeditation were his identification of four wounds, his opinion that
the shot to Officer Burrell’s arm would have rendered him unable to use his right
hand, and his opinion that the wound to the officer’s foot could have been inflicted
when he was on the ground, trying to ward off a shot. However, Dr. Ribe could
have rendered these same opinions without reference to Dr. Wegner’s notations in
the autopsy report, because they were also based on the photographs and X-ray.
In addition, there was other evidence that overwhelmingly supported the
conclusion that defendant shot Officer Burrell when the officer was on the ground
and thus that the murder was premeditated. Cooksey testified that defendant
admitted shooting the two officers after they were on the ground. Eyewitness
Gully testified that she observed a man who looked like defendant shoot Officer
Burrell while standing over him. Eyewitness Jordan also testified that she saw a
man who appeared to be defendant shoot Officer Burrell in the head while he was
lying facedown on the curb. Consequently, any error in the admission of the
autopsy report or its contents without the opportunity for the defense to cross-
examine the author was harmless beyond a reasonable doubt.
3. Admission of Artistic Renderings
Defendant contends the trial court erred in admitting 10 drawings of the
scene of the shootings of the two police officers, which were used to illustrate the
testimony of eyewitnesses Margaretta Gully, De’Moryea Polidore, and Alicia
Jordon. These drawings were prepared by a police artist based on interviews with
the witnesses. Each of the witnesses testified that the exhibits accurately reflected
33
what they saw, but in cross-examination, defense counsel elicited testimony
demonstrating that in some respects the drawings were not accurate or that they
depicted details that the witnesses did not observe. The drawings showed the
shooter in a light green jacket, but both Gully and Polidore testified that he was
wearing a dark jacket. Drawings used to illustrate Gully’s testimony showed
sparks coming out of a gun and showed the red truck with defendant’s license
plate number, the number “454” on the side, and the word “Chevrolet,” none of
which Gully observed. A drawing used to illustrate Polidore’s testimony showed
the number “454” on the truck, but the witness testified that he saw only “four-
something-four.”
Defendant argues that because the drawings demonstrated the artist’s
interpretation of what the scene looked like, they constituted hearsay that was
inadmissible under state law. He also contends that they constituted testimonial
hearsay whose admission violated the confrontation clause of the Sixth
Amendment to the federal Constitution and his federal due process right to a fair
trial. (See Crawford, supra, 541 U.S. 36.) To the contrary, because the drawings
were admitted solely to illustrate the witnesses’ testimony, and not for the truth of
the matters portrayed, they did not constitute inadmissible hearsay. (See Evid.
Code, § 1200 [hearsay “is evidence of a statement that was made other than by a
witness while testifying at the hearing and that is offered to prove the truth of the
matter stated”].) Furthermore, the confrontation clause “does not bar the use of
testimonial statements for purposes other than establishing the truth of the matter
asserted.” (Crawford, supra, at p. 60, fn. 9; see, e.g., People v. McKinnon (2011)
52 Cal.4th 610, 656 & fn. 28 [no confrontation clause violation where gang
expert’s testimony regarding rumors that a member of defendant’s gang had been
killed by a member of a rival gang was admitted for the nonhearsay purpose of
explaining defendant’s motive]; People v. Mendoza (2007) 42 Cal.4th 686, 698-
34
699 [no confrontation clause violation where murder victim’s statements accusing
defendant of molestation were admitted for the nonhearsay purpose of explaining
defendant’s state of mind]; People v. Ledesma (2006) 39 Cal.4th 641, 707, fn. 17
[no confrontation clause violation where identification of defendant in a photo
lineup by a witness to a robbery was admitted for the nonhearsay purpose of
establishing defendant’s motive for killing the witness].)
Defendant contends that even if the drawings did not constitute
inadmissible hearsay, they should have been excluded under state law because
they did not accurately represent the scene. He also contends that their admission
denied defendant a fair trial. In addition to the asserted inaccuracies noted above,
defendant points out that the drawings show bright light, but the crimes occurred
at night; the drawings show tinted windows in the truck, even though there was
conflicting testimony on this point; and the drawings suggest that the eyewitnesses
had a good opportunity to observe the perpetrator, when in fact they had only a
fleeting glance of him.
In an analogous situation, we have held that in ruling on the admissibility of
a videotape of the crime scene, “a trial court must determine whether: (1) the
videotape is a reasonable representation of that which it is alleged to portray; and
(2) the use of the videotape would assist the jurors in their determination of the
facts of the case or serve to mislead them.” (People v. Rodrigues (1994) 8 Cal.4th
1060, 1114 (Rodrigues).) Rodrigues involved a videotape of the crime scene
purporting to show the vantage point of one of the witnesses. The defendant
claimed that the videotape was inaccurate in that the scenes were shot in daylight,
whereas the events occurred at night; the scenes depicted one White male whereas
a witness testified that she saw two males, one Hispanic and one Black; and one
scene was shown from an inaccurate vantage point. (Id. at pp. 1113-1114.) We
found no error in admitting the videotape. Once the witness confirmed in her
35
testimony that the videotape accurately showed the area where she was when she
saw the assailants, the trial court could conclude that the tape was a reasonable
representation of the physical layout of the building and the witness’s vantage
point, and that it would assist the jurors “notwithstanding the claimed
inaccuracies.” (Id. at p. 1115.) We also noted that any inaccuracies in the tapes
were either obvious or brought to the jury’s attention. (Ibid.) “Under
circumstances such as these, we must assume that the jurors were intelligent
people and that they understood and took into account the differences identified by
defendant on appeal.” (Ibid.; see also People v. Mayfield (1997) 14 Cal.4th 668,
747 [video showing the scene of the crime was properly admitted to demonstrate
the height and location of walls and fences and what could be seen over them,
even though the video was taken in the daytime and the crime occurred at night].)
Likewise in the present case, the prosecution established that the drawings
accurately depicted the scenes observed by the witnesses in relevant respects, and
the trial court could reasonably conclude that the drawings would assist the jurors
in understanding the testimony. Through cross-examination, defense counsel was
able to establish that these renderings were not entirely accurate in all details, and
he brought the discrepancies to the jury’s attention in closing argument.8 As in
8
The most misleading inaccuracy was the inclusion of defendant’s license
plate number on the truck in several of the drawings, even though none of the
witnesses testified that they saw the license plate number. Defendant, however,
has forfeited any objection to the inclusion of the license plate number in the
drawings. In ruling that the drawings were admissible, the trial court offered to
have them altered to remove the license plate numbers. Defense counsel refused
that offer, indicating that if the drawings were to be admitted he did not want them
altered. During closing arguments, counsel exploited this inaccuracy by arguing
that the inclusion of the license plate in the drawings was an example of the
prosecution’s “distortion of the truth.”
36
Rodrigues, we may assume that the jurors took into account the discrepancies
between the witnesses’ testimony and the artists’ renderings and that they were not
likely to be misled.
4. Admission of Assertedly Prejudicial Photographs, Physical
Evidence, and Testimony
Defendant contends the trial court erroneously admitted, over defense
counsel’s objection, allegedly inflammatory evidence to establish the
circumstances of the deaths of Officers MacDonald and Burrell. According to
defendant, because the circumstances of the officers’ deaths were not in dispute,
much of this evidence was either irrelevant or cumulative and, to the extent it had
some relevance, it was more prejudicial than probative. Specifically, he argues
that the evidence in question allowed the prosecutor to improperly generate
sympathy for the victims and bias against defendant, making it impossible for the
jury to evaluate the evidence fairly and dispassionately. Defendant claims that
admission of this evidence constituted an abuse of the trial court’s discretion under
Evidence Code section 352 and denied him his state and federal constitutional
rights to due process, a fundamentally fair trial, and a reliable adjudication of his
capital case.
The physical evidence at issue includes photographs of the two officers
taken during the autopsy; life-size mannequins used to illustrate the coroner’s
testimony regarding the location of the wounds and the trajectories of the bullets,
and photographs of these mannequins; articles of clothing taken from the bodies of
the officers that were stained with blood and tissue; and photographs showing the
two officers when they were alive. The allegedly inflammatory testimony
includes the coroner’s testimony regarding the autopsy results, which was
illustrated by the above mentioned photographs, mannequins, and articles of
clothing; testimony by Officer Reynolds, one of the first to arrive at the scene,
37
regarding his friendship with Officer Burrell9 and Officer Burrell’s condition
when he arrived;10 testimony by Officer Metcalf regarding the condition of the
two officers as they were dying; and testimony by a nurse regarding the condition
of the officers as she found them at the scene, including her observation that when
she felt for a pulse on one of the officers she heard a gurgling sound. The trial
court did not require the prosecution to accept defendant’s offer to stipulate to the
testimony of the nurse and to the cause of death and the manner in which the
wounds were inflicted, concluding that the prosecution was entitled to determine
how it would meet its burden of proof.
Evidence Code section 352 gives the trial court discretion to “exclude
evidence if its probative value is substantially outweighed by the probability that
its admission will . . . create substantial danger of undue prejudice . . . .” A trial
court’s exercise of discretion under section 352 will be upheld on appeal unless
the court abused its discretion, that is, unless it exercised its discretion in an
arbitrary, capricious, or patently absurd manner. (People v. Williams (2008) 43
Cal.4th 584, 634-635; Rodrigues, supra, 8 Cal.4th at pp. 1124-1125.)
We find no abuse of discretion in the trial court’s admission of the
testimony and evidence at issue. “As a rule, the prosecution in a criminal case
involving charges of murder or other violent crimes is entitled to present evidence
9
The trial court overruled defendant’s objection, on relevancy grounds, to
the testimony regarding Officer Reynolds’s relationship with Officer Burrell,
noting that it could be foundational. This proved to be the case. The witness went
on to describe Officer Burrell’s typical practice in conducting a traffic stop of a
person suspected of being armed or having engaged in a felony.
10
In response to defendant’s objection to Officer Reynolds’s description of
the wounded officer, the court permitted testimony about the gunshot wounds but
instructed the witness to avoid testifying about the presence of vomit and other
matters that were not relevant to the issues in the case.
38
of the circumstances attending them even if it is grim.” (People v. Osband (1996)
13 Cal.4th 622, 675.) Photographs and other graphic evidence are not rendered
“irrelevant or inadmissible simply because they duplicate testimony, depict
uncontested facts, or trigger an offer to stipulate.” (Stitely, supra, 35 Cal.4th at
p. 545.)
The trial court could reasonably conclude that the probative value of the
evidence at issue was not outweighed by its potentially prejudicial effects. The
testimony of the police officers and nurse who responded to the scene of the
shootings had probative value in proving the circumstances of the crime. The
coroner’s testimony went to the cause and manner of the officers’ death. The
testimony regarding the condition of the officers and their wounds also was
relevant to corroborate the testimony of the eyewitnesses to the shootings and as
evidence that the shootings were deliberate and premeditated. To the extent some
of the physical evidence and photographs that were used to illustrate the testimony
may have been duplicative of testimony, it nevertheless had some value in helping
the jury to understand the testimony or in corroborating the observations of
witnesses.
“We have described the ‘prejudice’ referred to in Evidence Code section
352 as characterizing evidence that uniquely tends to evoke an emotional bias
against a party as an individual, while having only slight probative value with
regard to the issues.” (People v. Crittenden (1994) 9 Cal.4th 83, 134.) The
testimony, photographs, and physical evidence whose admission defendant
challenges were “unpleasant, but not to the point of distracting the jury from its
proper function.” (Stitely, supra, 35 Cal.4th at p. 545.) Consequently, their
admission did not violate Evidence Code section 352 or deny defendant his
constitutional rights to a fair trial and a reliable death verdict. (See People v. Kraft
(2008) 23 Cal.4th 978, 1035 [“Application of the ordinary rules of evidence
39
generally does not impermissibly infringe on a capital defendant’s constitutional
rights”].)
Defendant notes that the record shows that Officer MacDonald’s mother
was upset by the coroner’s testimony and that Officer Reynolds became emotional
during his own testimony. Defendant contends that the jury’s observations of
these reactions must have further aggravated the emotional impact of the
challenged evidence, thereby overwhelming the jury’s ability to respond in a
reasoned manner to the evidence. That individuals who were close to the victims
should become upset when hearing about, or describing, their deaths is not
surprising. “As we previously have observed, victim photographs and other
graphic items of evidence in murder cases always are disturbing.” (People v.
Crittenden, supra, 9 Cal.4th at p. 134.) Nevertheless, absent evidence to the
contrary, we may assume that the jurors were able to “ ‘face [their] duty calmly
and undismayed.’ ” (People v. Osband, supra, 13 Cal.4th at p. 675, quoting
People v. Campbell (1965) 233 Cal.App.2d 38, 43.)
5. Reenactments of the Crime
During the examinations of eyewitnesses Gully, Polidore, and Jordon, the
prosecutor had each of these witnesses conduct a demonstration of what they
observed, with the witness posing as the shooter and the prosecutor posing as the
officers. Defense counsel objected to the prosecutor’s conducting a demonstration
with Gully, the first of the witnesses to testify, but the objection was overruled.
Defendant contends that these demonstrations were inadmissible under Evidence
Code section 352, and that they violated his federal constitutional rights to due
process and a fair trial.
With witness Gully, the prosecutor portrayed Officer Burrell by lying
facedown on the floor of the courtroom, in a position directed by the witness.
40
Gully then stood over him, straddling his legs in the same manner as the shooter
she witnessed, holding an unloaded gun in both hands aimed at his head and from
a distance of three to four feet. The prosecutor conducted a similar demonstration
with Polidore, in which the prosecutor portrayed Officer MacDonald lying down
and the witness portrayed the shooter, standing over him and aiming a gun toward
his head. Witness Jordan was at first reluctant to perform the demonstration, but
agreed to do so after she was permitted to use her finger rather than a gun. She
could not recall exactly how the officer had been positioned, but demonstrated
how the shooter walked around the officer and shot him.
“Under Evidence Code section 352, a trial court may exclude otherwise
relevant evidence when its probative value is substantially outweighed by
concerns of undue prejudice, confusion, or consumption of time.” (People v.
Riggs (2008) 44 Cal.4th 248, 290.) Defendant contends that these demonstrations
should have been excluded under Evidence Code section 352 because the
witnesses’ testimony was sufficient without resort to the demonstrations; the
demonstrations distorted the facts because the witnesses had only a fleeting
glimpse of the scene in poor lighting conditions; and they were inflammatory.
Reviewing the trial court’s ruling for abuse of discretion (People v. Riggs,
supra, 44 Cal.4th at p. 290), we find no such abuse. The trial court could
reasonably conclude that the demonstrations would be helpful to the jury in
understanding the witnesses’ testimony. The demonstrations were not misleading
because they did not purport to reproduce the conditions under which the
witnesses viewed the scene; they purported only to show the positions of the
persons observed by the witnesses. (See Rodrigues, supra, 8 Cal.4th at p. 1115
[videotape of scene purporting to show only the witness’s vantage point was not
inadmissible despite the fact that it did not accurately portray the lighting
conditions].) Although the use of an actual gun in these demonstrations had the
41
potential for increasing their emotional impact, the prosecutor made clear that the
gun was not loaded and the demonstrations were otherwise conducted in a manner
that “did not pose an intolerable risk of negatively affecting the fairness and
reliability of the proceedings.” (People v. Riggs, supra, at p. 291 [trial court did
not abuse its discretion in admitting a videotaped reenactment of the crime in
which the depiction of the murder was brief and did not show the victim actually
being shot or the aftermath of the shooting].)
6. Admission of Defendant’s Statements Regarding the Death of Andre
Chappell
Defendant contends the trial court erred in admitting “without limitation”
evidence of statements he made to Bernard Dickson, a witness to the killing of
Carlos Adkins. As described earlier, Dickson testified at trial that in late
September 1992, while waiting to testify at a preliminary hearing in the Adkins
case, he was put in the same jail cell as defendant. According to Dickson,
defendant said that he would do what he could for Dickson if Dickson “looked out
for him,” and he offered Dickson $5,000 not to testify. They discussed that if
Dickson testified, he would not be able to go back to the projects, where his
daughter still lived. According to Dickson, defendant “told me I didn’t want to
end up like Andre [Chappell]. Andre was dead.” Following this conversation,
Dickson told the deputy district attorney that he was mistaken about his
identification of defendant and the case was dismissed. Defendant was released
and he thanked Dickson. Dickson testified that defendant never said that he was
responsible for the death of Andre Chappell.
At a pretrial hearing on the admissibility of these statements, defense
counsel agreed that defendant’s statement regarding the death of Chappell was
relevant to show Dickson’s state of mind, but argued that it should be excluded
under Evidence Code section 352 because the jury would inevitably speculate that
42
defendant was involved in the killing of Chappell. The trial court overruled
defendant’s objection, finding the evidence to be relevant to establish both
Dickson’s state of mind and defendant’s knowledge about the homicide of Adkins.
On appeal, defendant argues that evidence of defendant’s reference to
Chappell should have been excluded because its probative value was outweighed
by the possibility of prejudice — that is, by the possibility that the jury would
conclude that defendant was responsible for the death of Chappell. A trial court’s
decision whether to exclude evidence under Evidence Code 352 “if its probative
value is substantially outweighed by the probability that its admission will . . .
create substantial danger of undue prejudice” is reviewed for abuse of discretion
and will be upheld unless it exercised its discretion in an arbitrary, capricious, or
patently absurd manner. (People v. Williams, supra, 43 Cal.4th at pp. 634-635.)
The trial court did not abuse its discretion in the present case. The trial court
concluded that the statement was an admission by defendant from which the jury
could infer that because he knew Chappell was a witness to the Adkins shooting,
he must have been present when Adkins was shot. The statement was highly
relevant not only to Dickson’s state of mind, but also to defendant’s. The risk that
the jury might have misused defendant’s statement to speculate that he had killed
Chappell was not so significant or so potentially prejudicial as to warrant
exclusion of the evidence.
Defendant also complains that the statement was admitted “without
limitation,” and argues that the reference to the death of Chappell should have
been admitted only for the purpose of explaining why Dickson recanted his
identification of defendant. Defendant contends that the jury should not have been
permitted to consider the statement as an admission because it was also likely to
conclude, despite the absence of evidence, that defendant had either killed
Chappell or had him killed. Defendant did not request any limiting instruction at
43
trial and he made a tactical decision to decline an instruction that would have
directly addressed the risk of improper speculation. The trial court offered, and
defense counsel rejected, an instruction advising the jury that there was no
evidence that Chappell’s death was related to the case. Such an instruction would
have addressed the potential prejudice of which defendant complains — the risk
that jurors would conclude that Chappell had been killed because he was a witness
to the Adkins homicide. Defense counsel responded to the court’s offer by
expressing concern that an instruction would have highlighted the matter, stating
that he would think about it. Later, during the conference on jury instructions,
defense counsel brought the matter up again and stated, “Tactically I have to
decide whether or not I would request the court to . . . give an appropriate
instruction or admonition or whether I just want to leave it alone.” The court
expressed its view that Dickson’s testimony did not necessarily connect
Chappell’s death with defendant. Defense counsel ultimately chose not to accept
the instruction offered by the court or to request any other form of limiting
instruction. Under these circumstances, defendant has forfeited any claim that the
purpose of defendant’s statement should have been limited to Dickson’s state of
mind.
7. Admission of a Stipulation about the Killing of Andre Chappell
Defendant contends that the trial court’s alleged error in admitting
defendant’s statements to Bernard Dickson referring to the death of Andre
Chappell was compounded by an alleged additional error in admitting evidence
about the circumstances of Chappell’s death. At trial, the prosecutor offered to
prove when, where, and how Chappell died, arguing that it was relevant to give
meaning to Dickson’s fear of testifying. Over defense objection, the trial court
ruled that this evidence was more probative than prejudicial. In lieu of testimony,
44
however, a stipulation was read to the jury that Chappell had been shot and killed
on March 20, 1992, at 9:35 p.m., in Nickerson Gardens.
Defendant argues that it was error to admit these details of Chappell’s death
because the reference to his death should have been admitted only to show
Dickson’s state of mind. Dickson had already testified that he was aware that
Andre Chappell had been killed. These additional facts were not relevant,
defendant argues, unless Dickson was aware of them as well. Defendant contends
this information also was prejudicial because it increased the likelihood that the
jury would believe that Chappell’s death was connected to Adkins’s murder: the
shooting occurred in the same neighborhood that defendant lived in and only about
one and a half months after the murder of Adkins.
We need not decide whether the trial court erred in ruling that the
information contained in the stipulation regarding the killing of Chappell was
admissible, because any error clearly was harmless. At the time the stipulation
was read the jury already was aware that Chappell had died and that he had died
shortly after the shooting of Adkins. Detective Peterson testified that Chappell did
not attend the lineup that was conducted in June of 1992 because he was deceased.
The only new information provided in the stipulation was the specific time of
death, the location, and the fact that Chappell was shot. Given the strength of the
evidence against defendant on all three murder counts, there is no reasonable
possibility that these details affected the outcome of the case.
8. Instruction on Reasonable Doubt
Defendant contends the instruction on reasonable doubt, CALJIC No. 2.90
(1994 rev.) (5th ed. 1988), violates state and federal constitutional guarantees of
due process and a fair trial by jury in that it (1) impliedly required the jurors to
articulate a reason for their doubt; (2) admonished the jury that a possible doubt is
45
not a reasonable doubt; (3) failed to affirmatively explain that the defendant had
no obligation to present or refute evidence; (4) failed to instruct that the jury’s
rejection or disbelief of the defendant’s case does not satisfy the prosecution’s
burden of proof; (5) failed to instruct that a reasonable doubt could be based upon
a conflict in the evidence, a lack of evidence, or a combination of the two; (6)
failed to inform the jury that the presumption of innocence continues throughout
the entire trial, including deliberations; and (7) described the presumption of
innocence as continuing only “until” (rather than “unless”) the contrary is proved.
This court has consistently found no constitutional infirmity in the language of
CALJIC No. 2.90 and has rejected the same contentions defendant makes here.
(People v. Taylor (2010) 48 Cal.4th 574, 631, fn. 15.) We decline to revisit our
prior conclusions in this case.
9. Instructions that Assertedly Diluted the Requirement of Proof
Beyond a Reasonable Doubt
Defendant contends that a series of instructions given to the jury at the guilt
phase of trial undermined and diluted the requirement of proof beyond a
reasonable doubt, in violation of his state and federal constitutional rights to trial
by jury, due process, and a reliable capital trial. Defendant contends the standard
instructions that explained the relationship between the reasonable doubt
requirement and circumstantial evidence effectively directed the jury to convict
defendant based upon nothing more than a reasonable inference, thereby reversing
and diluting the standard of proof and creating an impermissible mandatory
presumption. (See CALJIC Nos. 2.01, 2.02, 8.83, & 8.84.1.) Defendant
additionally contends that other instructions urged the jury to decide material
issues by determining which side presented relatively stronger evidence, thereby
implicitly replacing the “beyond a reasonable doubt” standard with a
“preponderance of the evidence” standard. (CALJIC Nos. 1.00 [duties of judge
46
and jury], 2.21.1 [discrepancies in testimony], 2.21.2 [willfully false testimony],
2.22 [weighing conflicting testimony], 2.27 [sufficiency of testimony of a single
witness], and 2.51 [motive].)
We have consistently rejected contentions that the instructions defendant
challenges here somehow undermine the requirement of proof beyond a
reasonable doubt. (See People v. Cleveland (2004) 32 Cal.4th 704, 750-751
[addressing instructions on circumstantial evidence and CALJIC Nos. 2.21.2, 2.22,
2.51]; People v. Crew (2003) 31 Cal.4th 822, 847-848 [addressing CALJIC
Nos. 1.00, 2.01, 2.02, 2.21.2, 2.22, 2.51, 8.20, 8.83, 8.83.1].) Defendant presents
no persuasive reason for us to reconsider our prior conclusions regarding these
instructions.
10. Absence of Instructions on Manslaughter
The jury was instructed on first and second degree murder, and found the
defendant guilty of the second degree murder of Adkins. Defendant contends the
trial court erred in refusing to give requested instructions on voluntary
manslaughter and involuntary manslaughter as lesser included offenses to the
charge of murder in the Adkins case. He contends the court’s refusal to instruct on
these offenses deprived him of his state and federal constitutional rights to present
a defense, to due process and a fair trial, to have the jury determine each material
issue, to require the prosecution to establish beyond a reasonable doubt every
elemental fact necessary to establish the offense, to have a reliable determination
of guilt and penalty, and to a properly instructed jury.
Voluntary and involuntary manslaughter are lesser included offenses of
murder. (People v. Breverman (1998) 19 Cal.4th 142, 154 [voluntary
manslaughter]; People v. Gutierrez (2002) 28 Cal.4th 1083, 1145 [involuntary
manslaughter].) An instruction on a lesser included offense must be given only if
47
there is substantial evidence from which a jury could reasonably conclude that the
defendant committed the lesser, uncharged offense but not the greater, charged
offense. (People v. Breverman, supra, at pp. 154, 162.) “[E]very lesser included
offense, or theory thereof, which is supported by the evidence must be presented
to the jury.” (Id. at p. 155.)
Defendant contends that the jury should have been instructed on voluntary
manslaughter because it could have reasonably concluded that he went into a rage
after Adkins grabbed for the gun. Voluntary manslaughter is “the unlawful killing
of a human being, without malice” “upon a sudden quarrel or heat of passion.”
(§ 192, subd. (a).) An unlawful killing is voluntary manslaughter only “if the
killer’s reason was actually obscured as the result of a strong passion aroused by a
‘provocation’ sufficient to cause an ‘ “ordinary [person] of average disposition . . .
to act rashly or without due deliberation and reflection, and from this passion
rather than from judgment.” ’ [Citations.]” (People v. Breverman, supra, 19
Cal.4th at p. 163.) “The provocation must be such that an average, sober person
would be so inflamed that he or she would lose reason and judgment. Adequate
provocation must be affirmatively demonstrated.” (People v. Lee (1999) 20
Cal.4th 47, 60.)
No substantial evidence was presented that any provocation by Adkins was
sufficient to cause an ordinary person of average disposition to be so inflamed as
to lose reason and judgment. As explained earlier, two eyewitnesses, Bertrand
Dickson and Janice Chappell, testified about the circumstances leading up to the
shooting. Dickson testified that shortly before the shooting defendant apologized
to Chappell for the disturbance and stated that the men in the apartment “don’t
know who I am.” As defendant started to leave, Adkins said, “you don’t know
who I am either.” In response, defendant came back inside, put the gun between
Adkins’s eyes, and threatened to shoot him. Adkins then grabbed the gun. The
48
two men started wrestling and two shots were fired. Even if defendant acted out
of anger, Adkins’s response to his threat was not sufficient to support a conviction
for voluntary manslaughter. “Such predictable conduct by a resisting victim” is
not the type of provocation that reduces a murder charge to voluntary
manslaughter. (People v. Jackson (1980) 28 Cal.3d 264, 306.)
Defendant also contends that an involuntary manslaughter instruction
should have been given because the jury could have concluded that the shooting
occurred while defendant was engaged in the misdemeanor of brandishing a
weapon and that the gun went off accidentally during the ensuing struggle. The
misdemeanor of brandishing a weapon is committed when a person draws or
exhibits a firearm, in the presence of another person, “in a rude, angry, or
threatening manner.” (§ 417, subd. (a)(2).) A killing without malice “in the
commission of an unlawful act, not amounting to [a] felony” is involuntary
manslaughter. (§ 192, subd. (b).) Accordingly, an accidental shooting that occurs
while the defendant is brandishing a firearm in violation of section 417 could be
involuntary manslaughter. (See People v. Lee, supra, 20 Cal.4th at pp. 60-61;
People v. Southack (1952) 39 Cal.2d 578, 584.)
Nevertheless, even if we assume that the evidence was sufficient to require
an instruction on involuntary manslaughter, any error in failing to give that
instruction was harmless. The failure to instruct on a lesser included offense in a
noncapital case11 does not require reversal “unless an examination of the entire
record establishes a reasonable probability that the error affected the outcome.”
(People v. Breverman, supra, 19 Cal.4th at p. 165.) “Such posttrial review focuses
11
Because any error could have affected only defendant’s conviction for the
second degree murder of Adkins, this count is a noncapital matter for purposes of
harmless error review.
49
not on what a reasonable jury could do, but what such a jury is likely to have done
in the absence of the error under consideration. In making that evaluation, an
appellate court may consider, among other things, whether the evidence
supporting the existing judgment is so relatively strong, and the evidence
supporting a different outcome is so comparatively weak, that there is no
reasonable probability the error of which the defendant complains affected the
result.” (Id. at p. 177.)
Here, the evidence supporting the jury’s verdict of second degree murder
was compelling. Dickson testified that defendant put the gun between Adkins’s
eyes and threatened to “blow his brains out.” The gun went off twice, which a
jury would be unlikely to believe occurred by accident. These circumstances
strongly support a conclusion that the shooting was not accidental.
Even if the jury believed that defendant did not intend to pull the trigger,
the evidence strongly supported a conclusion that defendant acted with malice. As
the jury was instructed, malice is implied when the killing resulted from an
intentional act, the natural consequences of which are dangerous to human life,
performed with knowledge of and conscious disregard for the danger to human
life. (People v. Dellinger (1989) 49 Cal.3d 1212, 1222; see CALJIC No. 8.11.)
An unintentional shooting resulting from the brandishing of a weapon can be
murder if the jury concludes that the act was dangerous to human life and the
defendant acted in conscious disregard of life. (People v. Benitez (1992) 4 Cal.4th
91, 108-109; see also In re Russell H. (1987) 196 Cal.App.3d 916, 920-921
[substantial evidence supported juvenile court’s finding of second degree implied
malice murder where the minor pointed a loaded gun at the victim and threatened
to shoot him, and the gun went off when a third party attempted to take it away].)
As noted above, an eyewitness testified that defendant put the gun to Adkins’s
head and threatened to kill him. Such conduct is highly dangerous and exhibits a
50
conscious disregard for life. In order to find defendant guilty of only involuntary
manslaughter, the jury would have had to conclude both that the shooting was
accidental and that defendant had acted without malice. Based on the evidence
presented, the jury was not reasonably likely to have convicted defendant of the
lesser offense if instructions on involuntary manslaughter had been given.
11. Absence of Instruction that Jury Must be Unanimous as to Degree
of Homicide
Defendant contends the trial court erred in failing to instruct the jury in a
timely manner that it must agree unanimously on the degree of murder. The
prosecution initially requested that the trial court instruct the jury pursuant to
CALJIC No. 8.74, which requires a unanimous verdict on the degree of murder,
but the trial court did not do so.12 During deliberations the jury sent a note asking
if it was necessary to reach a unanimous decision concerning whether the murder
was in the first or second degree. In response to the jury’s question, the court
reread some of the instructions already given and read CALJIC No. 8.74, which
explicitly informed the jury that if it found defendant guilty of murder, “you must
agree unanimously as to whether he is guilty of murder of the first degree or
murder of the second degree.” After the jury returned its verdicts, defense counsel
moved for a mistrial, noting that the verdict forms finding defendant guilty of the
first degree murders of the two police officers had been signed before the court
12
The trial court declined to give the prosecution’s proposed instruction on
the ground that it referred to manslaughter. The version of CALJIC No. 8.74
submitted by the prosecution read as follows: “Before you may return a verdict in
this case, you must agree unanimously not only as to whether the defendant is
guilty or not guilty, but also, if you should find [him] guilty of an unlawful killing,
you must agree unanimously as to whether [he][she] is guilty of [murder of the
first degree] [or] [murder of the second degree] [or] [voluntary] [or] [involuntary]
manslaughter].”
51
instructed the jury with CALJIC No. 8.74. The trial court denied the motion,
concluding that the jury had been properly instructed and that CALJIC No. 8.74
was merely a clarification.
We agree with the trial court that the instructions given initially properly
informed the jury that it could not return a verdict finding defendant guilty of
murder in the first degree unless it so found unanimously. The jury was instructed
to state in the verdict “whether you find the murder to be of the first or second
degree.” (CALJIC No. 8.70.) It was further instructed that “all twelve jurors must
agree to the decision and to any finding you have been instructed to include in
your verdict.” (See People v. Kozel (1982) 133 Cal.App.3d 507, 528-529 [failure
to give CALJIC No. 8.74 was not error, when other instructions and verdict forms
adequately informed jury of requirement of unanimity].)
Furthermore, contrary to defendant’s contention, the fact that the jury
inquired about the unanimity requirement after it had returned verdicts finding
defendant guilty of the first degree murders of Officers Burrell and MacDonald
does not establish a reasonable possibility that defendant was prejudiced by the
trial court’s failure to read CALJIC No. 8.74 earlier. The most likely inference
that may be drawn from the circumstances is that the question simply did not arise
in connection with the murders of the police officers because all jurors agreed that
those murders were of the first degree. The evidence that defendant shot both
officers after they were down overwhelming supported a conclusion that these
murders were premeditated. In addition, after the verdicts were read — and after
the court had read CALJIC No. 8.74 in response to the jury’s question — the jury
was polled and each juror agreed that the verdicts read were his or her own,
thereby confirming that the verdicts were unanimous. Consequently, the failure to
read CALJIC No. 8.74 earlier could not have affected the jury’s verdict.
52
12. Constitutionality of Reference to the Prosecution as “the People”
Defendant contends that references during his trial to the prosecution as
“the People” or as representing “the People” — including comments by the court
and the prosecutor, references in the jury instructions, and the identification of
exhibits as “People’s Exhibits” — rendered his trial fundamentally unfair, in
violation of the due process clauses of the state and federal Constitutions. Because
defendant never objected at trial to references to the identification of the
prosecution as “the People,” he has forfeited the claim on appeal. In any event,
reference to the prosecution as “the People” does not violate due process. (People
v. Whisenhunt (2008) 44 Cal.4th 174, 223; People v. Lewis and Oliver (2006) 39
Cal.4th 970, 1068; People v. Black (2003) 114 Cal.App.4th 830, 832-834.)
13. Constitutionality of Peace Officer Special Circumstance
The special circumstance of killing a peace officer applies to a first degree
murder if “[t]he victim was a peace officer, as defined in [enumerated Penal Code
sections] who, while engaged in the course of the performance of his or her duties,
was intentionally killed, and the defendant knew, or reasonably should have
known, that the victim was a peace officer engaged in the course of the
performance of his or her duties . . . .” (§ 190.2, subd. (a)(7).) Defendant
contends that this special circumstance is unconstitutionally vague and overbroad
on a number of grounds.
First, defendant argues, the special circumstance requires only that a
defendant should have known the victim was a peace officer, rather than that he
actually knew. We have previously rejected the claim that the “reasonably should
have known” element renders the peace officer special circumstance
unconstitutional. (See People v. Daniels (1991) 52 Cal.3d 815, 874; People v.
Gonzalez (1990) 51 Cal.3d 1179, 1224; People v. Brown (1988) 46 Cal.3d 432,
53
444; People v. Rodriguez (1986) 42 Cal.3d 730, 780-783.) Defendant provides no
persuasive reason for us to reconsider these decisions.
Second, he contends the special circumstance is vague because “peace
officer” has been defined broadly to include many categories of individuals whose
status as a peace officer would not be apparent to the ordinary person. (See, e.g.,
§§ 830.6 [persons summoned to the aid of peace officers], 830.35 [child support
investigators], 830.37 [volunteer fire wardens].) Nevertheless, the “reasonably
should have known” element would prevent a true finding on the special
circumstance if the victim’s status would not have been apparent to a reasonable
person.
Third, defendant argues that because the special circumstance includes
individuals who are not traditionally involved in law enforcement, including, for
example, an investigator for the Public Employees’ Retirement System, lottery
security personnel, or an investigator at a race track (§ 830.3), it fails to
meaningfully distinguish between those killings in which the imposition of a death
sentence is justified as compared to killings in which it is not, as required by Zant
v. Stephens (1983) 462 U.S. 862. This contention does not provide a basis for
challenging the special circumstance or death sentence in defendant’s case,
however, because the victims were traditional law enforcement officers whose
status as such was apparent — they were in uniform and driving a marked police
car at the time of the incident.
Finally, defendant contends this court’s decisions interpreting the special
circumstance to apply so long as the officer’s conduct was objectively lawful and
regardless of the defendant’s subjective belief that the officer’s conduct is
unlawful have rendered the special circumstance unconstitutionally overbroad.
(See Gonzalez, supra, 51 Cal.3d at pp. 1217-1218; People v. Jenkins (2000) 22
Cal.4th 900, 1020-1021 (Jenkins).) We explained in People v. Rodriguez, supra,
54
42 Cal.3d 740, that making eligible for the death penalty a defendant who “should
have known” the victim was a police officer is constitutional because it reasonably
serves the goals of retribution and deterrence. (Id. at p. 781.) Applying the
special circumstance to situations in which the officer was lawfully engaged in his
or her duties, even if the defendant believed otherwise, is constitutional for the
same reasons. As we have observed, limiting the special circumstance to
situations in which the defendant subjectively believed that the officer was acting
lawfully “would be inconsistent with the purpose of the special circumstance to
afford special protection to officers who risk their lives to protect the community,
and obviously would undermine the deterrent effect of the special circumstance.”
(Jenkins, supra, at p. 1021.)
14. Constitutionality of Multiple-Murder Special Circumstance
Defendant contends that the multiple-murder special circumstance is
overbroad, in violation of the Eighth Amendment to the federal Constitution,
because it applies to persons and crimes of many different levels of culpability and
thus presents no rational means of distinguishing those cases in which the death
penalty is appropriate from those in which it is not. He acknowledges that we
have previously rejected this claim (see, e.g., People v. Sapp (2003) 31 Cal.4th
240, 286; People v. Boyette (2002) 29 Cal.4th 381, 440), but presents no
persuasive reason for us to reconsider this conclusion.
15. Jury’s Discussion of the Murder of a Witness’s Wife
Defendant contends that his convictions should be reversed because jurors
committed prejudicial misconduct in reading or listening to news reports about the
death of a witness’s wife and discussing the topic during deliberations. Witness
Mark Buster had testified that he sold a red 1992 Chevrolet 454 pickup truck to
defendant. During guilt phase deliberations, a juror revealed to the court that a
55
discussion had occurred among the jurors about the death of Buster’s wife, who
had been shot shortly before Buster’s testimony. Defendant moved for a mistrial.
After questioning each juror about this subject, the court denied defendant’s
motion, concluding that although “technically” there had been a violation of the
admonition not to read or listen to news reports about the case or to consider
information that was not presented in court, the matter had not entered into the
jury’s deliberations. The court then informed the jury that “the death of Mark
Buster’s wife has nothing to do with this case and is unrelated to this case; that is,
it is not to enter into your deliberations or decision-making in any way, any form,
or fashion.”
“Although inadvertent exposure to out-of-court information is not
blameworthy conduct, as might be suggested by the term ‘misconduct,’ it
nevertheless gives rise to a presumption of prejudice, because it poses the risk that
one or more jurors may be influenced by material that the defendant has had no
opportunity to confront, cross-examine, or rebut.” (People v. Nesler (1997) 16
Cal.4th 561, 579.) This “presumption of prejudice may be rebutted . . . by a
reviewing court’s determination, upon examining the entire record, that there is no
substantial likelihood that the complaining party suffered actual harm.” (People v.
Hardy (1992) 2 Cal.4th 86, 174, italics added.)
Respondent contends that no presumption of prejudice arises in the present
case because the information did not concern a party to the case or events involved
in the case. We need not decide whether respondent’s argument is correct
because, in any event, we find no substantial likelihood that any juror was biased
by the information regarding the death of Buster’s wife. When juror misconduct
involves the receipt of information from extraneous sources, a substantial
likelihood of juror bias “can appear in two different ways. First, we will find bias
if the extraneous material, judged objectively, is inherently and substantially likely
56
to have influenced the juror. [Citations.] Second, we look to the nature of the
misconduct and the surrounding circumstances to determine whether it is
substantially likely the juror was actually biased against the defendant.
[Citation.]” (In re Carpenter (1995) 9 Cal.4th 634, 653.) In reviewing the trial
court’s ruling regarding a claim of juror misconduct, we accept the trial court’s
findings of historical fact if supported by substantial evidence, but we review
independently the question of whether prejudice arose from juror misconduct.
(Id. at pp. 646, 658-659.) “In an extraneous-information case, the ‘entire record’
logically bearing on a circumstantial finding of likely bias includes the nature of
the juror’s conduct, the circumstances under which the information was obtained,
the instructions the jury received, the nature of the evidence and issues at trial, and
the strength of the evidence against the defendant.” (Id. at p. 654.)
The record here establishes no reasonable likelihood that any juror was
influenced by the information that Buster’s wife had been killed because it is not
the type of information that was inherently likely to influence the jurors. Buster’s
testimony involved only defendant’s purchase of his truck, which was not a matter
that was actively contested in the case. Furthermore, no juror reported any
speculation that Buster’s wife was targeted because of her husband’s testimony, or
that defendant — who was in custody at the time of her death — was involved.
The trial court noted that Buster had demonstrated a good relationship with
defendant in front of the jury, by shaking his hand and speaking to him.
According to the jurors, who were questioned by the court, the subject of the
killing came up when the jurors discussed Buster’s testimony and they talked
about it for about five minutes, but they recognized that it was not relevant and
moved on to other matters. Finally, the trial court clearly instructed the jury that
57
the death of Buster’s wife had nothing to do with the case and that it should not
enter into the jury’s deliberations.13
C. Penalty Phase Issues
1. Admission of Weapons Convictions
Defendant contends the trial court erred in admitting, as evidence in
aggravation, defendant’s two felony convictions for being a convicted felon in
possession of a firearm (§ 12021, subd. (a)) and being in possession of a concealed
weapon (§§ 12021, subd. (a) & 12025, subd. (a)(5)). These convictions resulted
from his guilty plea to charges that were part of the present case. Defendant is
correct that prior felony convictions are not admissible under section 190.3, factor
(c), unless the conviction preceded the commission of the capital crime. (People
v. Carter (2005) 36 Cal.4th 1215, 1271; People v. Bradford (1997) 15 Cal.4th
1229, 1373-1374; People v. Balderas (1985) 41 Cal.3d 144, 201-202.)
Defendant further argues that these convictions were not admissible under
section 190.3, factor (b), as evidence of criminal activity involving the “express or
implied threat to use force or violence.” (See People v. Cox (2003) 30 Cal.4th
13
Defendant states that one of the jurors believed that this evidence “should
have been presented” during the trial, which defendant argues means that the juror
“believed that [defendant] was responsible for the killing.” The record does not
support this contention. Defendant appears to rely on a statement by one juror,
who told the court that several people talked about the incident “and I just felt that
that should have been of some concern because it was some fact — it was some
fact that was stated, and it wasn’t presented to us.” This juror was the first to
mention to the court that the jury had discussed the death of Buster’s wife. The
juror had explained that “I felt that it could have been some type of misconduct
because that was some evidence that was not presented to us and it was stated in
the jury room.” Considered in this context, it seems clear that the juror was not
expressing the view that evidence about this incident should have been presented
to them, but that the jurors should not have been discussing it because it had not
been.
58
916, 973 [mere possession of guns does not constitute a crime of violence]; People
v. Jackson (1996) 13 Cal.4th 1164, 1235 [“firearm possession is not, in every
circumstance, an act committed with actual or implied force or violence”]; but see
People v. Quartermain (1997) 16 Cal.4th 600, 631 [“Possession of sawed-off
firearms and silencer materials carries an implied threat of violence because their
obvious purpose is to harm humans”].)
Respondent argues that the weapons convictions were properly considered
by the jury under section 190.3, factor (a), as “circumstances of the crime of which
the defendant was convicted in the present proceeding.” “[W]e have assumed that
factor (a), though it speaks in the singular of the ‘crime’ of which defendant was
currently convicted, covers the ‘circumstances’ of all offenses, singular or plural,
that were adjudicated in the capital proceeding.” (People v. Montiel (1993) 5
Cal.4th 877, 939, fn. 33; accord, People v. Rogers (2006) 39 Cal.4th 826, 909;
People v. Sanchez (1995) 12 Cal.4th 1, 70.) Defendant contends, however, that
factor (a) includes only the circumstances of any crimes for which the death
penalty is contemplated, and that crimes that are entirely unrelated to the capital
offense do not become admissible at the penalty phase merely because they were
charged in the same proceeding as the capital crimes.
We need not resolve whether the jury should have been allowed to consider
this evidence because, in any event, there is “no reasonable possibility that”
evidence of these two convictions “affected the penalty verdict.” (People v.
Howard (2010) 51 Cal.4th 15, 38.) The evidence was cumulative of other
evidence establishing that defendant had possessed firearms on several occasions.
Each of the victims was shot with a handgun. At the guilt phase, defendant’s wife
testified that she had seen defendant with a gun and that he had given her a gun.
Evidence was presented at the penalty phase that defendant once threw a gun as
59
police officers chased him. The penalty verdict would not have been different if
evidence of these two convictions had been excluded.
2. Alleged Prosecutorial Misconduct
Defendant contends the prosecutor committed three instances of
misconduct at the penalty phase, denying him a fair trial and violating his Eighth
and Fourteenth Amendment rights under the federal Constitution to a reliable
capital sentence. “In general, a prosecutor commits misconduct by the use of
deceptive or reprehensible methods to persuade either the court or the jury.”
(People v. Price, supra, 1 Cal.4th at p. 447; see People v. Hill (1998) 17 Cal.4th
800, 819.) “When, as here, the point focuses on comments made by the prosecutor
before the jury, the question is whether there is a reasonable likelihood that the
jury construed or applied any of the complained-of remarks in an objectionable
fashion.” (People v. Berryman, supra, 6 Cal.4th at p. 1072.) We conclude that
none of the prosecutor’s actions constituted misconduct.
Defendant’s first complaint concerns the prosecutor’s argument that if
defendant were sentenced to life imprisonment he could be a danger to other
inmates. The prosecutor stated, “If he engages in some type of acts of violence on
another inmate without parole, what could be done to him? It would be a freebie.”
When trial counsel objected to the latter remark, the trial court told the jury to
disregard it. Defendant contends this remark was designed to appeal to the jury’s
passions and prejudices and that, in any event, future dangerousness is not a
proper aggravating factor under California law.
To the contrary, “prosecutorial argument regarding defendant’s future
dangerousness is permissible when based on evidence of the defendant’s conduct
rather than expert opinion.” (People v. Ervin (2000) 22 Cal.4th 48, 99
[prosecutor’s argument, based on the defendant’s record, that he would present a
60
discipline problem in prison because he would have “nothing to lose,” was not
improper].) “ ‘It is settled that a prosecutor is given wide latitude during
argument. The argument may be vigorous as long as it amounts to fair comment
on the evidence, which can include reasonable inferences, or deductions to be
drawn therefrom. [Citations.]’ ” (People v. Wharton (1991) 53 Cal.3d 522, 567.)
The evidence of defendant’s crimes presented at the guilt phase and the other
incidents of violent criminal conduct properly presented at the penalty phase
provided a sufficient basis for the prosecutor’s argument. (See People v. Taylor
(1990) 52 Cal.3d 719, 750 [argument that defendant would present a danger in
prison was proper based on “defendant’s record of violence outside the prison
walls”].) Furthermore, the trial court instructed the jurors to disregard the
prosecutor’s comment that any future act of violence “would be a freebie.” “We
can only assume they followed the instruction, and did not allow this isolated
remark to affect the verdict.” (Stitely, supra, 35 Cal.4th at p. 571.)
Defendant further complains that during the cross-examination of
defendant’s wife, Deshaunna Cody Thomas, the prosecutor asked whether she
intended to have conjugal relations with defendant while he was imprisoned.
Defense counsel’s objection to this question was sustained. Defendant contends
that this question constituted misconduct because it solicited clearly irrelevant
information and insinuated that defendant would be able to have sexual relations
with his wife if he were given a life sentence. Although the subject matter of
conjugal relations is not necessarily irrelevant in an appropriate case (see, e.g.,
People v. Arias (1996) 13 Cal.4th 92, 178), there was no evidence in the present
case that such visits could occur. To the extent the prosecutor’s question
insinuated such visits could occur when there was no evidence on that point,
defendant failed to request an admonition, which could have cured any potential
61
harm. (See Stitely, supra, 35 Cal.4th at p. 568 [defendant forfeited claim of
prosecutorial misconduct by failing to request a curative admonition].)
Defendant contends, finally, that the prosecutor committed misconduct in
questioning certain witnesses about how defendant obtained money and in
referring to defendant’s purchase of a truck for $18,000 shortly before the
shooting of the police officers.14 Defendant argues the prosecutor was improperly
attempting to suggest to the jury that defendant was involved in some kind of
illegal activity such as drug dealing, thereby impermissibly introducing facts not in
evidence and causing the jury to consider a nonstatutory aggravating factor.
Putting aside the merits of defendant’s claim, any misconduct was clearly
harmless. If the prosecutor was attempting to elicit information from defense
witnesses that defendant was engaged in illegal money-making activities, he was
not successful. The prosecutor asked several of defendant’s friends and relatives
if they knew how he obtained money. None of them were aware of how defendant
earned money, other than his occasional work as a security guard at a liquor
store.15 To the extent the prosecutor’s questions may have insinuated that he was
14
There was testimony at the guilt phase that defendant had paid $18,000 for
the truck.
15
During the cross-examination of defendant’s wife, the prosecutor asked her
how defendant earned his money. She testified that defendant did not have a job
but that she did not know where his money came from. When the prosecutor
asked her whether defendant had a bank account, the defense objected to the line
of questioning. The prosecutor argued that he was attempting to impeach the
witness’s testimony that he was a good father and husband, on the theory that
having a bank account and providing for the family were consistent with being a
good father and husband. The court sustained the objection.
The prosecutor pursued a similar line of questions with other witnesses. He
asked Kawasci Jackson whether defendant paid child support for their son. She
stated that he did not, but that he had given her a total of about $80 when she
asked for it. She did not know whether defendant was working at the time. Kim
(footnote continued on next page)
62
aware of illegal money-making activities by defendant, the jury was admonished
not to “assume to be true any insinuation suggested by a question asked a witness.
A question is not evidence and may be considered only as it helps you to
understand the answer.” (CALJIC No. 1.02.) Furthermore, the prosecutor made
no suggestion during his closing argument that defendant was engaged in illegal
money-making activities. He stated that defendant gave money to his family only
when asked, “Yet he can afford a truck the cost of which is $18,000.” The
prosecutor argued that defendant’s actions — including fathering several children
with women other than his wife, staying away from home one or two nights a
week, dropping out of school, not working, and spending money on a truck while
contributing very little to his children — were not consistent with being a good
husband and father. These arguments were a fair comment on the evidence and
contained no suggestion that the prosecutor was aware or believed that defendant
was selling drugs or engaged in other illegal activity. Under these circumstances,
defendant was not prejudiced by the prosecutor’s line of questioning regarding
defendant’s income.
(footnote continued from previous page)
Graham, a neighbor, also did not know whether defendant was working, and did
not know where he obtained the money to buy the red truck. Defendant’s mother,
Iris Thomas, testified in response to the prosecutor’s questions that her son had
worked at a liquor store. When the prosecutor asked whether she knew that
defendant had paid $18,000 for a truck, the trial court interrupted, asked the
prosecutor to approach the bench, and admonished him, “You have been trying to
get out that he has been selling drugs, and you tried. $18,000 has got nothing to
do with this case.” After defendant’s aunt, Sheila Griggs, had testified about the
times defendant had helped relatives and neighbors financially, the prosecutor
asked her if she knew where his money came from. She did not know how he
earned money, other than by working as a security guard in a store. The
prosecutor elicited from defendant’s cousin, Patricia Mosley, the fact that the last
time she saw him, he had a red truck but he was not employed.
63
3. Admission of Photographs of Victims and Their Families
Defendant contends the trial court erred in permitting the prosecutor, over
defense objection, to illustrate the testimony of penalty phase witnesses with
photographs of the victims and their family members. Before trial, the prosecutor
sought to introduce photographs of Officer Burrell in his uniform; Burrell with his
arm around his mother; Burrell’s infant son, Kevin, Jr.; Officer MacDonald with
his brother when they were children; MacDonald with his brother at a wedding;
and MacDonald’s graduation from the police academy. The court excluded the
picture of MacDonald and his brother and the one of MacDonald at his brother’s
wedding, but allowed the prosecutor to use the rest. During his penalty phase
argument, the prosecutor referred to the photographs and asked the jurors to look
at the photographs of the officers with their families and to compare those to the
autopsy photographs.16
Defendant contends the admitted photographs are not the type of victim
impact evidence that is permissible at the penalty phase because they provided no
new information beyond the testimony that was given by family members and
16
“If any of you are considering or pondering to give this defendant a life
without parole sentence, before you do that, before you do that, take a look at the
photographs of Officer MacDonald. . . . Look at the happy faces of John and his
brother . . . and the happy face of Jimmy and his parents when he graduated at the
police academy. [¶] And then look at the coroner photographs. Look at that dead
face and those bullet wounds that were caused by him, this defendant and nobody
else. And take a look at this. This is the exhibit of Officer [Burrell] . . . there with
his family smiling during the marriage of his older brother, there with his mom
with his arm around her, and his dad there at the birthday party, and there he is
feeding his baby son a bottle. [¶] And that is his son later on, the son that will
never know a father. Look at these photos, ladies and gentlemen, and then look at
the coroner photographs, the bullet hole in the face, through the bottom of the foot,
through the top of the head, through the arm. None of this would have happened if
this defendant didn’t make the decision to murder these young men.”
64
their sole purpose was to inflame the passions of the jurors. Defendant also asserts
that the photographs were “unduly prejudicial and likely to provoke irrational,
capricious, or purely subjective responses from the jury.” We have rejected such
arguments in previous cases, upholding the admission of similar types of
photographs when used to illustrate victim impact testimony. (See People v.
Davis (2009) 46 Cal.4th 539, 618 [photograph of victim’s mother and sister taken
shortly after the victim was kidnapped]; Stitely, supra, 35 Cal.4th at p. 565
[photograph of victim with her husband]; People v. Boyette, supra, 29 Cal.4th at
p. 444 [photographs of victims]; People v. Edwards (1991) 54 Cal.3d 787, 836
[photographs of victims at the time of the crimes].) The photographs admitted
here, and the prosecutor’s use of them in argument, assisted the jury in evaluating
the consequences of defendant’s crimes and they were not the type of “irrelevant
information or inflammatory rhetoric that diverts the jury’s attention from its
proper role or invites an irrational, purely subjective response.” (People v. Haskett
(1982) 30 Cal.3d 841, 864, quoted in People v. Edwards, supra, at p. 836.)
4. Absence of Cautionary Instruction on Victim Impact Evidence
Defendant contends the trial court erred in refusing to read to the jury a
special cautionary instruction offered by defense counsel regarding victim impact
evidence.17 We have previously rejected claims that an identical instruction
17
The proposed instruction provided: “Evidence has been introduced for the
purpose of showing the specific harm caused by the defendant’s crime. Such
evidence was not received and may not be considered by you to divert your
attention away from your proper role of deciding whether the defendant should
live or die. You must face this obligation soberly and rationally, and you may not
impose the ultimate sanction of death as the result of an irrational, purely
subjective response to emotional evidence and argument. On the other hand,
evidence and argument on emotional though relevant subjects may provide
legitimate reasons to sway the jury to show mercy.”
65
should have been given, finding it to be duplicative and potentially confusing and
misleading. We concluded in People v. Ochoa (2001) 26 Cal.4th 398, 455, that
“[t]he proposed instruction would not have provided the jury with any information
it had not otherwise learned from CALJIC No. 8.84.1 . . . .” In People v. Harris
(2005) 37 Cal.4th 310, 359, we noted that the instruction proffered by defendant is
confusing because it is “unclear as to whose emotional reaction it directed the
jurors to consider with caution — that of the victim’s family or the jurors’ own.”
Furthermore, we concluded that the instructions read to the jury, including the
standard penalty phase instruction, CALJIC No. 8.85, which was also provided in
the present case, “did not give the jurors the mistaken impression that they could
consider emotion over reason, nor did the instructions improperly suggest what
weight the jurors should give to any mitigating or aggravating factor.” (People v.
Harris, supra, at p. 359; see also People v. Carey (2007) 41 Cal.4th 109, 134.) In
People v. Zamudio (2008) 43 Cal.4th 327, 368, we stated that an instruction
similar to the one proposed here “is misleading to the extent it indicates that
emotions may play no part in a juror’s decision to opt for the death penalty”
because in considering victim impact evidence the jury may exercise sympathy for
the murder victims and their family members.
Defendant also argues that if the proposed instruction was imperfect, the
trial court should have altered it. (See People v. Falsetta (1999) 21 Cal.4th 903,
924 [concluding “the trial court erred in failing to tailor defendant’s proposed
instruction [regarding evidence of other sex offenses] to give the jury some
guidance regarding the use of the other crimes evidence, rather than denying the
instruction outright”]; People v. Fudge (1994) 7 Cal.4th 1075, 1110 [to the extent
the defendant’s proffered instruction regarding eyewitness identification was
argumentative, the trial court should have tailored it rather than denying it
outright]; People v. Hall (1980) 28 Cal.3d 143, 159 [trial court should have
66
tailored instruction regarding reasonable doubt and eyewitness identification rather
than refusing it].) Because we have concluded that the gist of the proposed
instruction was adequately covered by the standard instructions that were given
(see, e.g., People v. Ochoa, supra, 26 Cal.4th at p. 455), even a modified version
of defendant’s instruction would have been duplicative and unnecessary.
5. Refusal to Instruct on Lingering Doubt
Defendant contends the trial court erred in denying defendant’s request that
the jury be instructed that a “lingering or residual doubt [about guilt], although not
sufficient to raise a reasonable doubt at the guilt phase, may still be considered as
a mitigating factor at the penalty phase.” There was no error. Such an instruction
is not required by the federal Constitution. (Franklin v. Lynaugh (1988) 487 U.S.
164, 174.) “[W]e repeatedly have held that although it is proper for the jury to
consider lingering doubt, there is no requirement that the court specifically instruct
the jury that it may do so. [Citations.]” (People v. Slaughter (2002) 27 Cal.4th
1187, 1219.)
Defendant contends that even if an instruction on lingering doubt is not
generally required, it was required in this case. He cites our statement in People v.
Cox (1991) 53 Cal.3d 618, that a trial court “may be required to give a properly
formulated lingering doubt instruction when warranted by the evidence.” (Id. at
p. 678, fn. 20.) We have since concluded, however, that such an instruction is
unnecessary when the jury is properly instructed — as was defendant’s jury —
regarding the aggravating and mitigating factors described in Penal Code section
190.3, factors (a) (circumstances of the crime) and (k) (other circumstances that
extenuate the gravity of the crime). (People v. Ward (2005) 36 Cal.4th 186, 219-
220; People v. Hines (1997) 15 Cal.4th 997, 1068.)
67
6. Refusal to Define Life Without Possibility of Parole
Defendant contends the trial court erred in refusing to instruct the jury that
life without parole means “exactly what it says. The defendant will be imprisoned
for the rest of his life” and “the death penalty means exactly what it says: That the
defendant will be executed.” We have consistently held that such an instruction
need not be given because it is incorrect to tell the jurors that the penalty they
select “will inexorably be carried out.” (People v. Thompson (1988) 45 Cal.3d 86,
130; cf. People v. Letner and Tobin (2010) 50 Cal.4th 99, 204-206 [suggesting
that an appropriate instruction would admonish the jury not to be influenced by
speculation on whether the chosen penalty will come about].)
7. Refusal of Instructions Regarding Mercy
Defendant contends the trial court erred in refusing to instruct the jury that
it could be influenced by mercy. Defendant offered five different instructions that
included the topic of mercy, all of which the trial court refused.18
Defendant acknowledges that this court has consistently rejected similar
claims of instructional error because we have concluded that the standard CALJIC
18
The proposed instructions included defendant’s requested instructions
No. 2 (“Contrary to the law in the guilt phase, in this part of the trial the law
permits you to be influenced by mercy, sympathy, compassion or pity for the
defendant or his family . . . .”), No. 8 (“A mitigating circumstance is a fact about
the offense or about the defendant which in fairness, sympathy or compassion, or
mercy, may be considered in extenuating or reducing the degree of moral
culpability or which justifies a sentence of less than death”), No. 11 (“A juror is
permitted to use mercy, sympathy and/or sentiment in deciding what weight to
give each mitigating factor”), No. 12 (“If the mitigating evidence gives rise to
compassion or sympathy for the defendant, the jury may, based upon such
sympathy or compassion alone, reject death as a penalty”), and No. 19 (“If a
mitigating circumstance . . . arouses mercy, sympathy, empathy, or compassion
. . . you may act in response thereto and impose a sentence of life without the
possibility of parole”).
68
instructions on section 190.3, factor (k) leave adequate room for the consideration
of mercy. (See People v. Griffin (2004) 33 Cal.4th 536, 591.) Defendant’s jury
was likewise instructed that it could consider “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” and that it was “free to assign whatever moral or sympathetic value you
deem appropriate to each and all of the various factors you are permitted to
consider.” (See CALJIC Nos. 8.85 and 8.88.) These instructions allowed the jury
to exercise mercy based upon any of the factors presented, and defense counsel
argued that the law permitted the jury to exercise mercy. (“You can exercise
mercy. The law allows you to do that.”) Although defendant asserts that an
instruction on mercy should have been given to inform the jury that it could
exercise mercy based upon how an execution would affect defendant’s family
members, sympathy for a defendant’s family is not itself a mitigating factor.
(People v. Smithey (1999) 20 Cal.4th 936, 1000.) Refusal was appropriate.
8. Refusal to Instruct that Facts Supporting the Murder Verdict are not
Aggravating Factors
Defendant asserts the trial court erred in refusing a proposed instruction
that would have informed the jury that “[i]n deciding whether you should sentence
the defendant to life imprisonment without the possibility of parole, or to death,
you cannot consider as an aggravating factor any fact which was used by you in
finding him guilty of murder in the first degree unless that fact establishes
something in addition to an element of the crime of murder in the first degree.
The fact that you have found Mr. Thomas guilty beyond a reasonable doubt of
murder in the first degree is not itself an aggravating circumstance.” (Defendant’s
requested instruction No. 6.)
69
The trial court did not err. In People v. Moon, supra, 37 Cal.4th 1, the trial
court refused an instruction containing language identical to the first sentence in
defendant’s proposed instruction. We rejected the same arguments defendant
makes in the present case, concluding that the proposed instruction is an incorrect
statement of the law. (Id. at p. 41.) Furthermore, in People v. Earp (1999) 20
Cal.4th 826, at pages 900-901, we concluded that similar instructions were
duplicative of CALJIC No. 8.88, which tells the jury that “[a]n aggravating factor
is any fact, condition or event attending the commission of a crime which
increases its severity or enormity, or adds to its injurious consequences which is
above and beyond the elements of the crime itself.” CALJIC No. 8.88 was given
in defendant’s case.
9. Refusal of Other Proposed Penalty Phase Instructions
Defendant argues the trial court erred in refusing to give several other
instructions requested by the defense that were offered to address particular
aspects of defendant’s theory of the case in mitigation. We find no error.
The court did not err in declining defendant’s proposed instructions
informing the jury that any mitigating factor, standing alone, may be the basis for
a decision that death is not the appropriate punishment. (Defendant’s requested
instructions Nos. 7, 20.) (See People v. Berryman, supra, 6 Cal.4th 1048, 1099-
1100 [instruction that one mitigating circumstance may justify a life sentence
would have been proper, but was not required]; People v. Breaux (1991) 1 Cal.4th
281, 317.) Nor did the court err in refusing instructions elaborating on the scope
of mitigation. An instruction that specifically identifies defense evidence that the
70
jury may consider in mitigation is not required.19 (See People v. Gutierrez, supra,
28 Cal.4th at p. 1159 [defendant not entitled to instruction listing the evidence he
viewed as mitigating].) The remainder of the proposed instructions,20 which
defendant contends would have clarified the scope of mitigation, were duplicative
of CALJIC Nos. 8.85 and 8.88, which were given. The standard instructions are
“sufficient to advise the jury of the full range of mitigating evidence, and nothing
more is required.” (People v. Edwards, supra, 54 Cal.3d at pp. 841-842.) Finally,
the proposed instruction directing the jury not to consider the deterrent effect or
cost of the death penalty (defendant’s requested instruction No. 14) was properly
19
Defendant’s requested instruction No. 4A would have informed the jury
that it could consider, among other factors: “The effect of the defendant’s
upbringing, childhood and family life,” “The effect of parental narcotic addiction,”
“The effect of having no biological father ever present in the home,” and “The
relationship between the defendant and his mother, siblings, children, wife,
relatives and significant others.”
20
These included defendant’s requested instructions No. 7 (“You may also
consider any other circumstances relating to the case or to the defendant as shown
by the evidence as reasons for not imposing the death penalty”), No. 8 (“A
mitigating circumstance is a fact about the offense or about the defendant which,
in fairness, sympathy, compassion, or mercy, may be considered in extenuating or
reducing the degree of moral culpability or which justifies a sentence of less than
death, although it does not justify or excuse the offense”), No. 9 (“Mitigating
factors are unlimited and anything mitigating should be considered and may be
taken into account in deciding to impose a sentence of life without possibility of
parole”), No. 10 (“Any aspect of the offense or the defendant’s character or
background that you consider mitigating can be the basis for rejecting the death
penalty”), No. 11 (“A juror should not limit his or her consideration of mitigating
circumstances to these specific factors”), No. 12 (“If the mitigating evidence gives
rise to compassion or sympathy for the defendant, the jury may, based upon such
sympathy or compassion alone, reject death as a penalty”), and No. 24 (“The
evidence presented regarding the defendant’s background may only be considered
by you as mitigating evidence”).
71
refused because neither party raised those issues. (See People v. Brown (2003) 31
Cal.4th 518, 566.)
10. Rereading of Guilt Phase Instructions and Rejecting Proposed
Defense Instruction on Jury’s Normative Role
At trial, defense counsel objected to the rereading at the penalty phase of a
number of guilt phase instructions that focused on the jury’s factfinding role.21
Defense counsel proposed that the court read an instruction focused on the jury’s
normative role in deciding the appropriate sentence: “Your duty in this phase of
the case is different from your duty in the first part of the trial where you were
required to determine facts and apply the law. Your responsibility in the penalty
phase is not merely to find facts, but also — and most important — to render an
individualized, moral determination about the penalty appropriate for the
particular defendant — that is whether he should live or die.” Defendant contends
that the trial court erred in rereading the guilt phase instructions without also
providing the jury with his proposed instruction. He asserts that as a result, the
jury lacked a proper sense of its obligation to exercise a moral judgment and the
death sentence was imposed in violation of numerous state and federal
constitutional guarantees — including his rights to present a defense, to a fair and
21
The guilt phase instructions included CALJIC Nos. 1.02 (statements of
counsel), 1.03 (juror forbidden to make any independent investigation), 2.00
(direct and circumstantial evidence), 2.11 (production of all available evidence not
required), 2.21.1 (discrepancies in testimony), 2.21.2 (witness willfully false), 2.22
(weighing conflicting testimony), 2.27 (sufficiency of testimony of one witness),
2.60 (defendant not testifying), and 2.90 (presumption of innocence, reasonable
doubt, burden of proof).
72
reliable capital trial, and to the presumption of innocence, and in violation of the
requirement of proof beyond a reasonable doubt.22
We have encouraged the rereading of guilt phase instructions regarding the
consideration of evidence at the penalty phase. (People v. Carter (2003) 30
Cal.4th 1166, 1222.) Such instructions can assist the jury in evaluating the
evidence presented. Nevertheless, defendant is correct that the jury’s role in a
capital penalty trial is not limited to finding facts and applying the law to those
facts. The jury “decides a question the resolution of which turns not only on the
facts, but on the jury’s moral assessment of those facts as they reflect on whether
defendant should be put to death.” (People v. Haskett, supra, 30 Cal.3d at p. 863.)
The trial court did not err in rereading the guilt phase instructions or in
refusing to deliver defendant’s proffered instruction, however, because the
instructions that were given adequately explained the jurors’ role. The jurors were
told to “consider all of the evidence, follow the law, exercise your discretion
conscientiously, and reach a just verdict.” (CALJIC No. 8.84.1.)23 After the court
delivered instructions regarding the consideration and evaluation of evidence, the
court read the list of aggravating and mitigating factors that the jury was to “take
into account and be guided by.” Finally, the court instructed the jury in the
language of CALJIC No. 8.88: “It is now your duty to determine which of the two
penalties, death or confinement in the state prison for life without possibility of
22
Defendant also argues that the prejudicial effect of this error was
compounded by the other instructional errors discussed above, including the
omission of defendant’s proposed instructions and on the scope of mitigating
evidence. Because we have found no error, there is no compounding prejudice.
23
By contrast, the instruction given at the guilt phase of trial told the jurors to
“conscientiously consider and weigh the evidence, apply the law, and reach a just
verdict regardless of the consequences.” (CALJIC No. 1.00.)
73
parole, shall be imposed on the defendant. After having heard all the evidence and
after having heard and considered the arguments of counsel, you shall consider,
take into account and be guided by the applicable factors of aggravating and
mitigating circumstances upon which you have been instructed. . . . The weighing
of aggravating and mitigating circumstances does not mean a mere mechanical
counting of factors on each side of an imaginary scale or the arbitrary assignment
of weights to any of them. You are free to assign whatever moral or sympathetic
value you deem appropriate to each and all the various factors you are permitted to
consider. In weighing the various circumstances you determine under the relevant
evidence which penalty is justified and appropriate by considering the totality of
the aggravating circumstances with the totality of the mitigating circumstances.
To return a judgment of death, each of you must be persuaded that the aggravating
circumstances are so substantial in comparison with the mitigating circumstances
that it warrants death instead of life without parole.”
Such instructions are sufficient to convey to the jury its responsibility in
deciding the appropriate punishment. (See People v. Ochoa, supra, 26 Cal.4th at
pp. 456-457 [trial court did not err in refusing a proposed instruction regarding the
jury’s moral responsibility to determine the appropriate penalty because it was
duplicative of CALJIC No. 8.88].) Contrary to defendant’s assertion, these
instructions were not undermined by other instructions that provided guidance to
the jury in determining the facts upon which its moral judgment was to be
exercised.
11. Refusal to Inform the Jury That Failure to Reach a Penalty Verdict
Would not Require a Retrial of the Guilt Phase
During his closing argument at the penalty phase, the prosecutor told the
jurors that if they could not reach a unanimous verdict, “[a] mistrial will be
declared on the penalty portion and the entire thing has to be done all over again.”
74
The trial court interrupted the prosecutor’s argument and admonished the jury to
“completely disregard” the comment about what would happen if there were a
mistrial. “That is not a factor in your decision making, all right, as if you didn’t
hear it. Disregard it.” At that time, defense counsel did not ask for additional
instructions or admonitions. After four days of jury deliberations, however,
defense counsel requested that the court instruct the jury that if it was unable to
reach a verdict, only the penalty phase would have to be retried. The trial court
refused the request.
Defendant contends the trial court erred and that the prosecutor’s comment
created a substantial risk that the jury would return a death verdict because it
feared that a hung jury would reverse its guilt phase verdicts, possibly causing
defendant to go free. We disagree. Even assuming defendant is correct that the
jury likely interpreted the prosecutor’s reference to “the entire thing” as meaning
that the entire trial, rather than just “the penalty portion,” would have to be retried,
the trial court had already admonished the jury to disregard the prosecutor’s
comment. We presume the jury followed the court’s instruction. (Stitely, supra,
35 Cal.4th at p. 570.) Additional instructions clarifying the prosecutor’s comment
would have implicitly conflicted with the trial court’s admonition that the jury
disregard that comment.
12. Instruction with Unmodified CALJIC No. 8.85
Defendant contends the trial court erred in rejecting proposed modifications
to CALJIC No. 8.85, the standard instruction that lists the statutory aggravating
and mitigating factors that the jury must consider at the penalty phase, and that the
instructions given were constitutionally flawed. He complains that certain
instructions proposed by defense counsel but rejected by the trial court could have
cured these constitutional defects. (Defendant’s requested instructions Nos. 4, 5,
75
15, 16, 17, 18, and 24.) We have previously rejected similar contentions that the
standard CALJIC instructions are constitutionally defective, and we do so again
here. (See, e.g., People v. Farnam (2002) 28 Cal.4th 107, 191-192.)
As to the modified instruction proffered by defendant, we have specifically
concluded the jury need not be instructed that evidence presented regarding
defendant’s background may be considered only in mitigation (People v. Rogers,
supra, 39 Cal.4th at p. 897); that certain factors may be considered aggravating,
others may be mitigating, and others could be either (People v. Brown (2004) 33
Cal.4th 382, 402; People v. Catlin (2001) 26 Cal.4th 81, 178; see Tuilaepa v.
California (1994) 512 U.S. 967, 979); that the absence of a mitigating factor is not
an aggravating factor (People v. Pollock (2004) 32 Cal.4th 1153, 1193-1194); or
that no additional factors, other than those on which the jury has been instructed,
may be used in aggravation (People v. Taylor (2001) 26 Cal.4th 1155, 1180; see
People v. Espinoza (1992) 3 Cal.4th 806, 827 [“Such an instruction is appropriate
only when extraneous aggravating evidence not falling within any of the statutory
factors has been presented to the jury”]).
Defendant also requested that arguably inapplicable mitigating factors be
deleted from the list. (Defendant’s requested instruction No. 4A.) Such deletions
are not required. (People v. Young (2005) 34 Cal.4th 1149, 1226; People v. Ghent
(1987) 43 Cal.3d 739, 776-777.) He contends that section 190.3, factor (i), age, as
interpreted by this court to include “any age-related matter suggested by the
evidence or by common experience or morality that might reasonably inform the
choice of penalty” (People v. Lucky (1988) 45 Cal.3d 259, 302), is
unconstitutionally vague. We have held to the contrary. (Jenkins, supra, 22
Cal.4th at pp. 1051-1052; see Tuilaepa v. California, supra, 512 U.S. at p. 977.)
Defendant acknowledges that this court previously has rejected contentions
identical to the ones he raises here, but argues that we have not adequately
76
addressed his reasoning. We disagree. Defendant presents no new arguments
sufficient to cause us to reconsider our prior conclusion that CALJIC No. 8.85 is
“not unconstitutionally vague and does not allow the penalty process to proceed
arbitrarily or capriciously.” (People v. Farnam, supra, 28 Cal.4th at p. 192;
accord, People v. Jennings (2010) 50 Cal.4th 616, 690.)
13. Instruction with CALJIC No 8.87
Defendant contends the trial court erred in instructing the jury pursuant to
CALJIC No. 8.87, which states that a juror must be satisfied beyond a reasonable
doubt that alleged prior violent criminal activity occurred before considering it as
a factor in aggravation. As modified to apply to the criminal activity alleged in
defendant’s case, the instruction included the following language: “Evidence has
been introduced for the purpose of showing that the defendant . . . has committed
the following criminal act, battery on a peace officer, which involved the express
or implied use of force or violence. Before a juror may consider any of such
criminal act as an aggravating circumstance in this case, a juror must first be
satisfied beyond a reasonable doubt that the defendant . . . did, in fact, commit
such criminal act. . . . It is not necessary for all jurors to agree. If any juror is
convinced beyond a reasonable doubt that such criminal activity occurred, that
juror may consider that activity as a factor in aggravation.” (Italics added.)
Defendant contends that three aspects of this instruction skewed the jury’s
deliberations in the prosecution’s favor and violated his state and federal
constitutional rights to a fair trial and a reliable penalty verdict. First, he
complains that the instruction identified his act as a criminal one involving
violence, thereby leaving the jury to decide only whether the alleged act occurred,
and removing the questions of whether that act violated a criminal statute and
involved force or violence. We have previously held that the question of whether
77
the acts occurred is a factual issue for the jury, but “the characterization of those
acts as involving an express or implied use of force or violence, or the threat
thereof, would be a legal matter properly decided by the court.” (People v.
Nakahara (2003) 30 Cal.4th 705, 720.)
Second, defendant argues that in defining the acts as involving “the express
or implied use of force or violence” (italics added), the instruction misinformed
the jury of the scope of the statute, which also includes an implied threat of force
or violence. (§ 190.3, factor (b).) He contends this instruction deprived the jury
of the opportunity to consider whether defendant’s act involved only an implied
threat of force or violence, which is a type of conduct that could be considered less
aggravating than an actual threat or use of force or violence. The alleged criminal
activity in the present case — battery — involved actual violence. Consequently,
the absence of a reference to implied threats of violence could not possibly have
been misleading.
Finally, defendant contends that it was unfair to instruct the jury that it need
not be unanimous in deciding whether violent criminal conduct had been proved,
because the court had refused to instruct the jury that it need not be unanimous in
deciding whether mitigating factors had been proved. We have previously
rejected this contention and find no basis on which to reconsider our prior
conclusion. (People v. Moore (2011) 51 Cal.4th 1104, 1140.)
14. Instruction With Unmodified CALJIC No. 8.88
Defendant contends the trial court erred in instructing the jury pursuant to
CALJIC No. 8.88, regarding the weighing of aggravating and mitigating factors at
the penalty phase, and rejecting the modifications proposed by defense counsel.
He asserts that CALJIC No. 8.88 as given at defendant’s trial was constitutionally
defective in that it was vague and imprecise, failed accurately to describe the
78
weighing process, and deprived defendant of the individualized consideration the
Eighth Amendment requires. He also contends the instruction was improperly
weighted toward death because, by telling the jury it could impose a death
sentence if the “aggravating circumstances are so substantial in comparison with
the mitigating circumstances that it warrants death instead of life without parole,”
the instruction permitted the jury to impose a death sentence merely because the
aggravating circumstances were “substantial,” even if they did not outweigh the
mitigating circumstances. Defendant argues that his proposed modifications,
would have corrected some of these defects. (Defendant’s requested instructions
Nos. 1, 11, 13, 21, 22, 25, 26, 27, 30, 31, 33.) We have previously concluded that
CALJIC No. 8.88 is not unconstitutionally defective. (See, e.g., People v. Taylor,
supra, 26 Cal.4th at p. 1181; People v. Jackson, supra, 13 Cal.4th at p. 1243.)
Defendant recognizes that we have rejected similar arguments in the past, and
provides us with no persuasive reason to reconsider those decisions.
15. Constitutional Challenges to California’s Death Penalty Statute
Defendant contends that numerous features of California’s death penalty
law, alone or in combination with each other, violate the federal Constitution
because the category of offenders who are eligible for the death penalty is
impermissibly broad and because there are insufficient safeguards in the penalty
phase process to ensure a reliable outcome. As defendant acknowledges, we have
previously rejected each of the specific contentions that he presents here:
The special circumstances set out in section 190.2 adequately narrow the
class of offenders eligible for the death penalty. (People v. Morrison (2004) 34
Cal.4th 698, 730.)
Section 190.3, factor (a), which permits the “circumstances of the crime” to
be considered as an aggravating factor, is not so vague or broad (as evidenced by
79
how it has been used in practice to include a broad range of circumstances) as to
result in unconstitutionally arbitrary and capricious imposition of the death
sentence. (People v. Brown, supra, 33 Cal.4th at p. 401.) Nor does it violate
defendant’s rights to due process and equal protection by permitting the jury to
consider the same facts in aggravation multiple times. (People v. Millwee (1998)
18 Cal.4th 96, 164.)
The California death penalty scheme is not constitutionally defective
because it fails to require jury unanimity on the existence of aggravating factors,
or because it fails to require proof beyond a reasonable doubt that death is the
appropriate penalty, that aggravating factors exist, or that aggravating factors
outweigh mitigating factors. (People v. Lynch (2010) 50 Cal.4th 693, 766.) The
United States Supreme Court’s decisions interpreting the right to a jury trial under
the federal Constitution (see Blakely v. Washington (2004) 542 U.S. 961; Ring v.
Arizona (2002) 536 U.S. 584) do not change these conclusions. (People v.
Thomas (2011) 51 Cal.4th 449, 506.)
No burden of proof is constitutionally required, and the jury need not be
instructed that there is no burden of proof. (People v. Taylor (2009) 47 Cal.4th
850, 899.)
The jury need not make written findings. (Jenkins, supra, 22 Cal.4th at
p. 1053.)
Intercase proportionality review is not required. (People v. Crittenden,
supra, 9 Cal.4th at pp. 156-157.)
The use of unadjudicated criminal activity at the penalty phase and the
absence of a requirement that the jury agree unanimously that it has been proved
do not render a death sentence unreliable. (People v. Anderson (2001) 25 Cal.4th
543, 584.)
80
Section 190.3, factor (b), which permits the jury to consider a defendant’s
other violent criminal activity, is not unconstitutionally vague. (People v.
Anderson, supra, 25 Cal.4th at p. 601.)
The use in aggravation of prior felony convictions under section 190.3,
factor (b), but not subsequent felony convictions under section 190.3, factor (c), is
not arbitrary or capricious. (See People v. Gurule (2002) 28 Cal.4th 557, 636 [the
purpose of factor (c) is to show that the defendant was undeterred by previous
criminal sanctions].)
The use of the same jury for the guilt and penalty phases does not deprive
defendant of an impartial and unbiased jury. (People v. Rogers, supra, 39 Cal.4th
at p. 894.)
The list of mitigating factors in section 190.3 does not unconstitutionally
limit the jury’s consideration of relevant mitigating evidence. (People v. Harris,
supra, 37 Cal.4th at p. 365; People v. Brown, supra, 33 Cal.4th at p. 402.)
The capital sentencing scheme does not violate equal protection by denying
to capital defendants procedural safeguards that are available to noncapital
defendants. (People v. Rogers, supra, 39 Cal.4th at p. 893; People v. Manriquez
(2005) 37 Cal.4th 547, 590.)
A presumption that the sentence should be life imprisonment without the
possibility of parole is not constitutionally required. (People v. Gamache (2010)
48 Cal.4th 347, 407; People v. Arias, supra, 13 Cal.4th at p. 190.)
16. International Law
We have previously rejected the contentions that the California death
penalty violates international law, evolving international norms of decency, or the
International Covenant on Civil and Political Rights. (People v. Jennings, supra,
50 Cal.4th at p. 690; People v. Brown, supra, 33 Cal.4th at pp. 403-404.)
81
17. Cumulative Prejudicial Effect of Errors
Defendant contends that the cumulative prejudicial effect of the alleged
errors discussed above requires reversal. We have found no error, and have
assumed error only as to four of defendant’s contentions: (1) that the testimony of
Dr. Ribe and the admission of an autopsy report regarding the autopsy of Officer
Burrell violated defendant’s right to confront the witnesses against him; (2) that
the trial court erred in failing to instruct on the lesser included offense of
involuntary manslaughter of Carlos Adkins; (3) that the trial court erred in
permitting the jury to consider defendant’s convictions for being a convicted felon
in possession of a weapon and possession of a concealed weapon; and (4) that the
prosecutor committed misconduct in questioning witnesses about defendant’s
sources of income. Because the first of these contentions affected only the charge
of the murder of Officer Burrell, and the second affected only the charge of the
murder of Carlos Adkins there could not have been any cumulative prejudicial
effect. Although both the third and fourth assumed errors involved the penalty
phase, even when they are considered together we find no reasonable possibility
that they affected the verdict.
18. Sentence for the Second Degree Murder
Although defendant does not raise the issue, the trial court made an error in
sentencing that should be corrected. The trial court imposed a sentence of death
for counts 1, 2, and 3. On count 1, the murder of Carlos Adkins, defendant was
convicted only of second degree murder, an offense that is not punishable by
death. (§ 190, subd. (a).) The jury’s verdict reflects that the jury fixed the
sentence at death only on counts 2 and 3, the murders of Officers Burrell and
MacDonald. Under our authority to modify an unauthorized sentence (§ 1260),
we direct the trial court to issue an amended abstract of judgment reflecting the
appropriate sentence for second degree murder, which is imprisonment for
82
15 years to life (§ 190, subd. (a)). (See People v. Lawley (2002) 27 Cal.4th 102,
172.)
III. DISPOSITION
The judgment is modified as follows: the sentence of death imposed on
count 1 for second degree murder is vacated, and the trial court is directed to send
an amended abstract of judgment to the Department of Corrections and
Rehabilitation reflecting a sentence of imprisonment for 15 years to life on that
count. As so modified, the judgment is affirmed.
CANTIL-SAKAUYE, C. J.
WE CONCUR:
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
LIU, J.
83
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Thomas
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S048337
Date Filed: February 23, 2012
__________________________________________________________________________________
Court: Superior
County: Los Angeles
Judge: Edward A. Ferns
__________________________________________________________________________________
Counsel:
Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and Mary K.
McComb, Deputy State Public Defender, for Defendant and Appellant.
Bill Lockyer and Kamala D. Harris, Attorneys General, Robert R. Anderson, Chief Assistant Attorney
General, Pamela C. Hamanaka, Assistant Attorney General, John R. Gorey, Peggy Bradford Tarwater and
Douglas Wilson, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Mary K. McComb
Deputy State Public Defender
801 K Street, Suite 1100
Sacramento, CA 95814
(916) 322-2676
Douglas Wilson
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
(213) 620-6097
Opinion Information
| Date: | Citation: | Docket Number: |
| Thu, 02/23/2012 | 53 Cal. 4th 771, 269 P.3d 1109, 137 Cal. Rptr. 3d 533 | S048337 |
