IN THE SUPREME COURT OF CALIFORNIA
Plaintiff and Respondent,
MARK SCOTT THORNTON,
Defendant and Appellant.
Super. Ct. No. CR 33105
Defendant murdered Kellie Colleen O’Sullivan on September 14, 1993, and
was arrested, tried, convicted of a number of crimes, and sentenced to death. The
jury convicted defendant of the murder of O’Sullivan (Pen. Code,1 § 187), and of
kidnapping her for robbery (§ 209, subd. (b)). It found true felony-murder special
circumstances on the basis of robbery and kidnapping (§ 190.2, subd. (a)(17)(A),
(B)). The jury also convicted defendant of robbery (§ 211), grand theft of an
automobile and a firearm (§ 487, subds. (d)(1), (d)(2)), kidnapping (§ 207, subd.
(a)), assault with a firearm (§ 245, subd. (a)(2)), receiving stolen property (§ 496,
subd. (a)), petty theft (§ 484, subd. (a)), three counts of forgery (§ 470, subd. (a)),
and uttering a check with insufficient funds (§ 476a, subd. (a)). The jury found
true allegations, tied to the murder, kidnapping, grand theft of an automobile,
Unless otherwise indicated, all statutory references are to this code.
robbery, kidnapping for robbery, and assault with a firearm charges, that defendant
personally used a firearm (§ 12022.5, subd. (a)), and with regard to the murder,
kidnapping for robbery, grand theft of an automobile, and robbery charges, that he
inflicted great bodily injury (§ 12022.7, subd. (a)).2
The penalty phase was tried by jury. The jury returned a verdict of death, and
the trial court entered judgment accordingly. The appeal to this court is automatic.
(§ 1239, subd. (b).) We will modify the judgment regarding the sentence on a
noncapital crime and affirm it as so modified.
I. THE FACTS
A. Guilt Phase
On September 26, 1993, searchers located the decomposed body of Kellie
Colleen O’Sullivan, concealed by heavy brush, alongside a remote section of
Mulholland Drive in Los Angeles County. She and her vehicle had vanished on
September 14, 1993. She had been shot three times in the chest. Defendant was
arrested in Reno, Nevada, and charged with O’Sullivan’s murder and other crimes.
Throughout the guilt phase proceedings defendant denied that he committed
the first degree premeditated and deliberate murder of O’Sullivan and that the
felony-murder special circumstances were true. He also maintained he did not
kidnap Stephanie C., a minor. But in closing argument, without conceding the
truth of the felony-murder special circumstances, he conceded he was guilty of
murdering O’Sullivan under a theory of first degree felony murder.
In some cases, the statutory provisions have been renumbered or relettered
since 1993. We refer to the current statutory designations.
2. Prosecution Case
The prosecution presented a case that defendant selected O’Sullivan
opportunistically for kidnapping, robbery, and, eventually, murder. Defendant,
who was 19 years old, sought to steal a vehicle to use in his planned kidnap of 16-
year-old Stephanie C., who had recently broken up with him. Defendant saw
O’Sullivan in or near her Ford Explorer in a parking lot, abducted her and stole
her vehicle at gunpoint, and murdered her on a remote part of Mulholland Drive.
After killing O’Sullivan, he used her vehicle in his kidnapping of Stephanie.
Eventually he brought Stephanie to a casino in Reno, Nevada, where she alerted
security personnel that defendant had abducted her.
Prosecution witnesses testified as follows:
In July of 1993, during a stay at a motel in Thousand Oaks, defendant met
Stephanie C., whose family was moving from Fresno to the area. They began to
On July 10, 1993, defendant, accompanied by a friend, Darren Dewaele, stole
a gun from a motor home parked near the motel in Thousand Oaks where he was
The relationship between Stephanie C. and defendant soon became stormy,
and Stephanie refused to answer his phone calls. She wanted him to leave her
alone and was trying to find a way to tell him she did not want to continue the
relationship. At one point defendant threatened to commit suicide.
On September 10, 1993, defendant showed up at Stephanie C.’s workplace, a
yogurt shop, and pushed her to the ground; she ran inside, locked the store’s front
door, and called the police. Defendant, who had little money and for some time
had been relying on a bicycle for transportation, told Dewaele that he was
planning to kidnap Stephanie and would steal a car to head north with her.
On September 12, 1993, two days before kidnapping and murdering
O’Sullivan and kidnapping Stephanie C., defendant uttered a bad check to obtain a
high-quality police scanner from Radio Shack. Thereafter (apparently the next
day) defendant asked a liquor store clerk how to program the scanner to receive
police broadcasts. On the day of the murder and double kidnapping, defendant
wrote another check to purchase, among other things, two toothbrushes and two
types of deodorant, one commonly used by men and the other commonly used by
On September 14, 1993, the last day she was seen alive, O’Sullivan called
her fiancé, Kevin White, to say she was leaving work and would be home soon.
On the way she stopped at a pet store to buy bird food and left. Eyewitness
testimony established that about a mile from the pet store she may have been in
the passenger seat of her vehicle, struggling with defendant. The witness to the
struggle, Margaret Spalding, was driving in the left lane of a multilane road as a
vehicle alongside her in the right lane swerved on the road. The vehicle’s two
occupants were arguing and fighting. Spalding saw clearly into the vehicle, but
because she was looking from the side, she saw the driver’s profile and not his
face. She was, however, able to see the passenger’s face. The driver, an 18-to-20-
year-old, struck the passenger, a pretty blonde, several times in her midriff as he
tried to maintain control of the vehicle. The man appeared angry, the woman
frightened. On two occasions the woman turned in her seat and dived toward an
area between the driver’s lap and the steering column, as if trying to wrest
something from him. She was unsuccessful; the driver fought her off as he
struggled to control the vehicle. Spalding could not identify either individual
during her testimony in court.
At 3:20 p.m. that day Donna des Baillets, who lived on Mulholland Drive,
heard a volley consisting of three loud gunshots. Des Baillets’s home was about a
quarter-mile from the location where O’Sullivan’s body was recovered.
After murdering O’Sullivan, defendant drove to a tattoo parlor. The tattoo
artist testified that defendant arrived in the mid-afternoon and had “Stephanie”
emblazoned on his right shoulder blade. Defendant was calm during the
procedure and described Stephanie C. as his girlfriend. He told the artist that he
would pick Stephanie up after leaving the parlor and they would leave town and
Thereafter defendant went to the yogurt shop where Stephanie worked.
Stephanie and her mother, Linda C., who was at the yogurt shop to take Stephanie
home, both saw defendant standing outside the vehicle about 10:00 p.m. He
immediately drove away. An hour later defendant confronted the two of them
outside their home. He grabbed Stephanie and fired the gun at Linda, missing her.
Defendant then forced Stephanie into O’Sullivan’s vehicle under threat of death
and the two left, with defendant monitoring the fraudulently purchased Radio
Shack police scanner as he drove toward Bakersfield.
The next night defendant, still holding Stephanie C. captive, was in San
Francisco, where a police officer stopped him for running a red light. As the
officer was checking defendant’s identification, defendant asked Stephanie
whether he should shoot him. She told him not to do it, and he did not. Instead he
fled; the police officer gave chase but was unable to apprehend him. Minutes later
defendant became involved in a road rage incident with another driver, which
culminated in defendant shooting out the other driver’s window.
Defendant then took Stephanie C. to parts of California north of San
Francisco. Since being abducted, Stephanie had played along with defendant,
keeping him calm so that he would not hurt her, and she continued to do so.
Hoping to find a way to escape, she encouraged defendant to take them to the
Circus Circus Casino in Reno, Nevada, where she hoped to summon help. “I
knew that there was a lot of people there. A lot of security at the casino.”
Defendant agreed and they drove to the casino and made their way to the gaming
floor. As defendant gambled he stopped paying attention to Stephanie, and she
slipped away and located a security guard, telling the guard that she had been
abducted. The Reno police arrived and found defendant on the casino premises.
After briefly providing armed resistance, defendant submitted to arrest.
Defendant tried to escape from police custody in Reno. He struggled with
Reno police officers, lunging forward and trying to pull free of them. Eventually,
police placed him in a van they use for combative prisoners. Ventura County
investigators interviewed him in Reno on September 20, 1993. At this point,
O’Sullivan’s body had not been found. In the interview, a videotape of which was
played to the jury, defendant told the police that he stole the vehicle belonging to
O’Sullivan when he saw it in the parking lot of a pet store, unattended, with the
keys in the ignition. He denied murdering O’Sullivan. He also said that even
though he had brandished a gun when he came to collect Stephanie C., she had
accompanied him willingly. He claimed she left him only because she caught him
looking at another woman at the casino.
A police search of O’Sullivan’s Ford Explorer found the Radio Shack police
scanner and a box of .38-caliber bullets located in a purse that was recovered from
under a seat.
On September 26, 1993, a friend of O’Sullivan’s who was searching for her
found her body in thick brush near the 6.44-mile marker on Mulholland Drive.
The body was significantly decomposed. O’Sullivan’s body was located in a
thick, low canopy of brush with an even lower entrance. A person could not stand
up inside, and crawling through the entrance was difficult. There was no evidence
that O’Sullivan’s body had been dragged into the grotto, suggesting that defendant
forced O’Sullivan to enter it while alive, where he shot her three times at close
range. Her body was located by smell, not by sight.
Shortly after O’Sullivan’s body was found, the police arranged for
defendant’s grandmother, Lois Thornton, to speak with him at the police station in
hopes of obtaining incriminating statements from him. They recorded and
transcribed the interview. The police told her they had just located a body that
appeared to be O’Sullivan’s. But they did not know the cause of O’Sullivan’s
death and therefore did not describe it to her. In the midst of the conversation
between defendant and his grandmother, however, they cautioned her out of
defendant’s hearing that if forensic evidence linked him to the body that had been
found he probably would be arrested for murder. During the conversation, which
was played to the jury, defendant repeatedly told his grandmother that he had
committed no violent crimes. Defendant denied murdering O’Sullivan, although
he commented to his grandmother, “I don’t care about her, I’m just tired.” He also
made a number of comments that showed consciousness of guilt of serious crimes,
including fears of never leaving prison.
A forensic pathologist conducted an autopsy and concluded that O’Sullivan
died of multiple gunshot wounds. She would have died within minutes of being
shot. He recovered three bullets from her body.
A criminalist and firearms specialist examined those bullets and compared
them with a bullet test-fired from a gun that was found on defendant when he was
arrested in Nevada. He concluded that the bullets used to kill O’Sullivan had been
fired from that gun.
In support of its theory that defendant had previously contemplated taking
victims to remote hilly areas and murdering them, and that Stephanie C. did not
willingly accompany defendant to Northern California and Nevada, the
prosecution introduced evidence of defendant’s tumultuous relationship with
Erika S., which began when she was 15 years old. On October 10, 1992, Erika,
who by then was 17 years old, and defendant attended a homecoming dance at
Thousand Oaks High School. They left shortly after arriving and drove to a beach
in Malibu, where they argued and he struck her on her hip. They returned to the
car and defendant drove recklessly through the Santa Monica Mountains, telling
Erika that he was contemplating murder-suicide and would never let her date
anyone else; if she started to date someone else, he would kill that person.
The next day, defendant and his friend Dewaele waited for Erika in a car
outside a church and followed her home. Defendant hid behind Erika’s house and,
as she drove up, used a key he had stolen from her earlier to open the locked
driver’s door. He ordered her to drive her car back to where his car was parked,
and moved her into the passenger seat of her car, which he used to transport her,
against her will, into the hills above Glendale. Defendant hit her, threatened to kill
them both by driving off the road and wrecking the car, and said he could cause
her to disappear in the hills and never be found. Thereafter he drove to a parking
lot, parked against a wall so that Erika could not open her door, climbed on top of
her in the back seat, and announced that he was going to commit suicide and
would “get” anyone else she might date. Erika was able to forcibly kick him off
her, and, after about an hour’s conversation, defendant drove himself and Erika
back to his car, where Dewaele was still waiting. He banged his head violently
against his car as if attempting suicide, and appeared to be depressed. Later
defendant told Dewaele he had overreacted with Erika and should not have sought
her out that day.3
In cross-examining Erika S., defendant elicited testimony that the
relationship was affectionate as well as tumultuous. Defendant introduced into
(Footnote continued on next page.)
Also to show that defendant’s taking O’Sullivan to a remote hilly area to kill
her was not impulsive, the prosecution introduced evidence that defendant was
familiar with the isolated stretch of Mulholland Drive where she was found and its
opportunities for concealing a crime. An acquaintance testified that on occasions
between November 1992 and February 1993 defendant socialized in the vicinity
of the murder site, drinking and listening to music with others.4
3. Defense Case
As mentioned, the defense’s approach to the case changed as the trial
proceeded. In his opening statement, defendant maintained that he stole an
(Footnote continued from previous page.)
evidence an exhibit that showed him and Erika S. in an affectionate pose at the
high school homecoming dance of October 10, 1992. Erika S. read to the jury
from two love letters she had sent to defendant. The first, dated September 1,
1992, was addressed to “Markie”; in it, Erika S. conveyed these sentiments: “I
was going to hire a skywriter to write all over the sky the reasons why I love you
but I ran into a teensie weensie problem[—]The sky is not big enough.” She
further expressed that “I really do love you, Markie. Whether you believe it or
not, I hope we are together forever, and that we can learn to accept each other as
we really are. I love you, love always, Erika [S.].” The second letter, dated
September 10, 1992, contained similar sentiments.
Erika S. also testified that at the time she loved defendant. Later, as
described in the text, the relationship soured, and on October 14, 1992, she filled
out a court form, which she read to the jury on cross-examination, in which, as
relevant here, she said, “For the past two months I have been trying to break up
with Mark but he always cries and threatens to kill himself.”
There was also evidence of other crimes for which defendant was tried
before the same jury. These are not at issue in this appeal. Defendant burglarized
a vehicle rented to one Heidi Conn; Conn’s stolen property was later located in
O’Sullivan’s vehicle. He uttered checks not backed by sufficient funds. From
August 30 to September 13, 1993, defendant was the tenant of Orlando and
Leonora Tafurt in Thousand Oaks. He stole property from them, including checks
that he used to obtain cash, and Orlando Tafurt’s gold watch.
unoccupied vehicle on impulse, and did so because he thought he should leave
town to avoid revocation of probation and prosecution for uttering checks with
insufficient funds. In his closing argument, however, he conceded his guilt of the
felony murder of O’Sullivan. Thus, the parties’ primary dispute centered on the
truth of the special circumstance allegations. Throughout the trial, defendant
consistently presented a defense that he did not commit premeditated and
deliberate murder and that he did not commit murder in furtherance of robbery or
kidnapping, thus negating the felony-murder special-circumstance allegations.
Before eventually conceding that defendant was guilty of the felony murder
of O’Sullivan, the defense presented evidence that defendant was not socializing
in the vicinity of the murder scene between November 1992 and February 1993,
implying that he was not familiar with the area where O’Sullivan’s body was
found. The evidence consisted of testimony that his car was physically
repossessed on November 9, 1992, and that he was living in Oceano,
approximately 140 miles distant, on December 2, 1992, and remained there until
February of 1993. The operator of a store in the same shopping center as the pet
store from which defendant abducted O’Sullivan testified that he heard no
commotion or screams. And Nancy L. Briscoe testified that she believed she saw
O’Sullivan alive and alone in her vehicle late on the afternoon of September 14,
after the time that Donna des Baillets, who lived on Mulholland Drive near the
murder scene, heard the gunshots that, in the prosecution’s view, marked the
execution of O’Sullivan.
Defendant also presented evidence that his actions against O’Sullivan and
Stephanie C. were spontaneous and impulsive rather than the product of
deliberation and premeditation, and that in the days preceding the crimes he took
actions inconsistent with an intention to leave Southern California. For example,
in the days before murdering O’Sullivan, defendant bought a 60-gallon fish tank
and a pager that would not work outside of Southern California, and hence would
be useless in the northern part of the state to which defendant later took Stephanie.
In addition, defendant presented evidence to counter the prosecution’s theory
that he forced O’Sullivan into the brushy grotto and shot her execution-style. The
forensic ballistics evidence was inconclusive and it could not be ruled out that
both defendant and O’Sullivan were standing outside the grotto when she was shot
and that she crawled or was moved into the grotto only afterward. Cross-
examining a prosecution witness, defendant had previously adduced evidence that
O’Sullivan’s pantyhose showed no residue at the knees, suggesting that she was
not kneeling when shot. Defendant maintained the prosecution had not proved
that the felony-murder special circumstances were true: defendant and O’Sullivan
might have struggled and he shot her impulsively and defensively.
As for the kidnapping of Stephanie C., defendant introduced evidence that
she went with him willingly and was not kidnapped. An employee of a privately
operated San Francisco amusement site that the two had visited testified that
several uniformed security guards regularly patrol the premises and Stephanie
could have sought their help. A camper at a campsite the two used testified that he
talked with defendant at the men’s bathroom, not within sight of Stephanie, who
was nearby, evidently using the women’s bathroom. The camper saw defendant
and Stephanie laughing and testified that she teased defendant about getting lost
and causing her to look for him.
B. Penalty Phase
The prosecution presented evidence of “criminal activity by the defendant
which involved the use or attempted use of force or violence or the express or
implied threat to use force or violence.” (§ 190.3, factor (b).) The defense
presented evidence that defendant had learning disabilities and was emotionally
disturbed. It also presented evidence bearing on defendant’s birth, background
(including a difficult childhood and adolescence), and character. On rebuttal, the
prosecution presented evidence that defendant’s birth was essentially normal, he
did not have serious learning disabilities or low intelligence, and he was antisocial
in high school.
2. Prosecution Case
a. Victim Impact Evidence
O’Sullivan’s mother, Sharlene Cunningham, presented victim impact
evidence. O’Sullivan was her only daughter. O’Sullivan’s murder left her young
son, Clifford, without a mother to raise him.
b. Factor (b) Evidence
Erika S. testified further at the penalty phase. It will be recalled that at the
guilt phase there was testimony that on October 10, 1992, Erika, who was 17 years
old, and defendant attended a high school dance. They left shortly after arriving
and drove to a beach in Malibu, where they argued. At the penalty phase, the jury
learned that defendant committed a sexual battery on Erika on the beach, running
his hand under her dress and touching her vaginal area. The next night, after Erika
left the church event about which there also was guilt phase testimony, defendant
forced her into the back seat of a car, told her he wanted to have sexual intercourse
with her, ignored her crying and her refusal, inserted a finger in her vagina, and
told her that he “could rip out [her] insides.” After Erika kicked him in the head,
he removed his finger and apologized. Erika obtained a restraining order against
defendant but, because she did not want her mother to know about the sexual
assaults, did not describe them on the application form.
The prosecution also presented evidence of defendant’s violent or menacing
acts in county jail while awaiting trial. On October 6, 1993, a deputy sheriff
searched defendant’s cell and found a paper clip, a toothbrush, and two razor
blades that had been turned into one or more potential weapons. On January 14,
1994, following a search of defendant’s cell that again produced contraband,
defendant had to be subdued by sheriff’s deputies, saying it was lucky there were
three of them, because otherwise he would have tried to stab them. As one of the
deputies described defendant’s threat, he told them, “I was looking to stick your
On February 8, 1994, more contraband was discovered in defendant’s cell. A
blade that had been removed from a disposable razor was found taped underneath
3. Defense Case
a. Defendant’s Biological Family Background
Defendant’s mother, Markita Thornton, was a habitual substance abuser
before and after defendant’s birth. She drank and used drugs before learning she
was pregnant with defendant, and her mother testified that she saw Markita drunk
during the pregnancy, though Markita denied it on the witness stand. Defendant’s
biological father, Steve Miller, beat Markita during her pregnancy with defendant,
including delivering a blow to her abdomen during her seventh or eighth month.
Miller died when defendant was four years old. Markita Thornton testified that
Miller saw defendant only about seven times.
Markita Thornton testified that defendant’s aunt was mentally “a little slow”
and, as far as she knew, had never attended school. A doctor had diagnosed her as
being cognitively impaired.
Markita Thornton repeated the third grade, was expelled from one junior high
school, and attended but did not graduate from high school. She had a history of
minor crimes dating back to her teenage years.
Pierre Sarrazin, a Montreal native who was a prolific car thief as an
adolescent before moving to California, met Markita Thornton in Los Angeles
when defendant was about two years old. Sarrazin later became defendant’s
c. Defendant’s Birth and Early Childhood
Defendant was born on July 16, 1974. Lawrence William Scott, M.D., the
gynecologist and obstetrician who delivered him, testified that his birth was
medically complicated and difficult, and he may have been born brain-damaged,
though Dr. Scott was not concerned about defendant’s neurological status at birth.
Nor, according to the testimony of other witnesses, including Carter R. Wright,
M.D., a pediatrician, was defendant’s first year of life auspicious. He would not
breast feed and failed to gain weight normally.
Markita Thornton was distracted during defendant’s early years by a chaotic
lifestyle that included multiple boyfriends and alcohol and drug abuse. She turned
defendant over to his maternal grandmother, Lois Thornton, for substantial
amounts of parenting, including when she went to scavenge garbage cans in the
neighborhood when defendant was young.
Defendant was unmanageable in kindergarten and had to repeat the school
year. Just before starting kindergarten, he was bitten by a dog, and he saw a
psychiatrist to deal with the incident. The psychiatrist, Brian Paul Jacks, M.D.,
saw defendant beginning in January of 1980, treated him for a year and a half, and
diagnosed him with depression, neurological problems, and attention deficit
hyperactivity disorder (ADHD).
School records showed that at about age six defendant was diagnosed as
having a behavioral disorder that resulted in recommendations that he be put in a
special classroom and see the school psychologist once a week.
Dr. Jacks saw defendant again in 1985, when he was about 10 or 11 years
old, and reconfirmed his diagnoses of depression and ADHD.
d. Defendant’s Formative Years Before the Crimes
Witnesses testified that Pierre Sarrazin preferred defendant’s younger sister
Chantal to him, which angered defendant. One witness described defendant’s role
in the family as akin to “a piece of lint on a suit.” Sydnie Goldfarb, who was then
pursuing a master’s degree in marriage and family counseling, became acquainted
with defendant’s family through a social connection in the spring of 1992, about a
year and a half before defendant’s crimes. She testified that Sarrazin basically
ignored defendant, but when he spoke to him it was in a demeaning tone. Markita
Thornton showed no affection toward defendant and ignored him. Sarrazin and
Markita Thornton bickered regularly and did not seem to have a close relationship.
In general, defendant seemed to be a particularly unhappy adolescent.
When defendant was 16 years old and in tenth grade, he lived with the family
of Berta Siy from Monday through Friday of each week in order to be eligible to
spend the 1990-1991 academic year at Hoover High School. He liked the Siys
and asked the Siy family to adopt him. Siy testified at trial that defendant “is very
nice” and was nice when he was in the tenth grade as well. Defendant’s academic
performance at Hoover High School, however, mirrored his experiences with
schoolwork elsewhere, which were problematic. He was classified as learning-
disabled during his school years, struggled to learn, had attendance and behavioral
problems, and dropped out of high school in 1992. At Thousand Oaks High
School, he was placed in a class for the emotionally disturbed. In 1992, just
before defendant dropped out of high school, school records noted that he was
contemplating suicide, would cry, had no money or food, was experiencing
problems with his mother and stepfather, and was living in a car. An educational
consultant, Carol Horwich Luber, testified that the school system failed to provide
early intervention, during elementary school, with the type of specialized services
that would have made him “a much more successful student in elementary, junior
high and high school.”
In April of 1993, about five months before defendant committed his crimes,
his mother attempted suicide. During that time, Sydnie Goldfarb went to
defendant’s house and found defendant crying and his sister distraught.
Defendant had no bed or bedroom at his house and slept on the floor. At
other times, when Sarrazin and Markita Thornton could not tolerate his presence,
he slept in his car or at friends’ houses and was emotionally overwrought. He held
a job at an automobile oil-change establishment for only 11 days. During this
time, Pierre Sarrazin and Markita Thornton attempted to evict him after Sarrazin
caught him siphoning gasoline out of his truck, but the police informed
defendant’s parents that they could not force him to leave the house before age 18.
So defendant stayed for a short time before being taken to Bakersfield to live in a
trailer with his maternal grandmother, Lois Thornton, and her boyfriend. He soon
returned home; his mother again asked him to leave but eventually relented and let
him live in a tent in the back yard.
At the time defendant assaulted Erika S. in October 1992, he was suffering
emotional stress and contemplating suicide. He again went to live with Lois
Thornton, this time in Oceano, in San Luis Obispo County, where he was
depressed and could not sleep. When he returned home to Ventura County, police
arrested him on a charge of automobile burglary. Defendant found work at an
automotive repair shop and remained employed about a month, until his stepfather,
who also worked there, fired him because he disapproved of defendant’s spending
his money on radio-controlled model racing cars.
A pediatric neurologist, William David Goldie, M.D., reviewed defendant’s
medical records from birth and his school records, and performed an electroence-
phalogram (EEG) on him. He identified significant pediatric neurological
difficulties, eating and walking problems, a low intelligence quotient (though, as
will appear, there was other penalty phase testimony that defendant’s intelligence
was average, and Dr. Goldie ultimately conceded the point on cross-examination),
and the need to repeat kindergarten. Defendant’s EEG revealed a mild to
moderate degree of abnormal brain function.
Marc Roman Nuwer, M.D., a professor of neurology at the University of
California, Los Angeles, Medical School, testified that defendant’s EEG was
mildly, though not moderately, abnormal and suggested brain abnormalities that
could result in mild retardation, hyperactivity, and behavioral problems. In Dr.
Nuwer’s opinion, defendant’s condition could not be attributed to drowsiness or to
medications he was taking.
C. Prosecution’s Rebuttal Case
The prosecution presented the testimony of Alex Soffici, M.D., director of
maternal fetal medicine at Santa Barbara Cottage Hospital. He reviewed
defendant’s delivery and pediatric records and the testimony of Dr. Scott. On the
basis of that review, he testified that defendant’s birth was essentially routine, with
no significant complications either to him or Markita Thornton. Based on the
records he reviewed, he doubted that defendant’s birth caused him any brain
There was testimony from defendant’s high school teachers and other school
officials regarding his viciousness and his propensity to squander his potential.
Anita Dacles, one of defendant’s teachers in special education classes, testified
that he was regularly absent, but when present he would bully her and other
students, mock her foreign accent, and refuse to do schoolwork. He was generally
a disruptive presence in the class, and was too intelligent to be in special education
classes. He refused to consider applying for outside employment that she located
for him. Another special education teacher who taught defendant, Richard W.
Saunders, also described him as disruptive and, in essence, mean-spirited.
Defendant attended class about two-thirds of the time, and when present he
taunted, and encouraged others to taunt, a student who used a wheelchair and
another with hygiene problems. Like Dacles, Saunders testified that defendant
was overqualified to be placed in special education classes. Defendant’s basic
math teacher at Hoover High School, Joyce Borgman, characterized him as
defiant, angry, dishonest, and unwilling to dedicate himself adequately to his
schoolwork. Kevin Welsh, a vice-principal at Hoover High School, confirmed in
his testimony that defendant was unruly, defiant, dishonest, belligerent, and
A special education teacher and educational therapist who taught defendant at
Conejo Valley Continuation School, Al Frankfurter, testified that defendant was a
“con artist” and dishonest. Frankfurter agreed with the prosecutor that defendant
could be characterized as someone who “was always trying to get away with
things.” He taunted a student he believed to be gay and, on learning that
Frankfurter was Jewish, tauntingly asked the meaning of the slur “kike.” He
suggested that if sent to the vice-principal’s office for disciplining, he would like
to sodomize that official. He said he would kill Frankfurter for calling his mother
to report his frequent unauthorized absences from class, although his tone of voice
indicated playfulness rather than a considered threat. Defendant had no
discernible learning disability. On cross-examination, Frankfurter testified that
defendant lacked self-esteem and seemed emotionally starved and financially
deprived. He agreed with defense counsel that defendant had to be “his own
Ellen Walley, the attendance officer at Hoover High School, testified that
defendant was regularly absent without authorization, and that when she would
contact defendant’s stepfather and Berta Siy, about the problem, both told her,
either explicitly or in essence, that defendant was uncontrollable.
Linda Calvin, who holds a doctorate in educational psychology with an
emphasis in child growth and development, reviewed a number of defendant’s
records and other documentary evidence, and testified there was no conclusive
evidence that defendant suffered from attention deficit or attention deficit
hyperactivity disorders. Nor was it likely that he had another learning disorder, or
if he did, it was mild to moderate. She also testified that defendant showed
To counter the evidence of Dr. Goldie, the defense witness who testified that
defendant had an abnormal EEG, the prosecution called William Sutherling, M.D.,
a neurologist, who testified that the EEG results, though abnormal, should be
attributed to defendant’s being maintained on two “neuroleptic medications” that
generate abnormalities on EEG examinations. Defendant had anticipated this
testimony, and in his case-in-chief adduced testimony from Dr. Nuwer that Dr.
Sutherling’s conclusion was incorrect. In turn, Dr. Sutherling testified that he
disagreed with the conclusions of Drs. Goldie and Nuwer.
A. Guilt Phase Issues
1. Denial of Motion to Dismiss the Indictment
The case against defendant began by grand jury indictment. Before trial,
defendant moved to quash the indictment on the ground that the district attorney’s
office had helped to select the grand jurors, in violation of the separation of
powers clause of the California Constitution (art. III, § 3) and the due process
guaranties contained in the California and federal Constitutions. The trial court
conducted a hearing on the motion and denied it. The Court of Appeal
subsequently denied defendant’s petition for writ of prohibition, and we denied
The trial court entertained the motion on the basis of defendant’s points and
authorities and an answer submitted by the prosecution, which contained
declarations. Prosecution declarations made by an investigator for the district
attorney averred that the district attorney’s office performs a criminal history
check on prospective grand jurors who have applied to serve on the grand jury,
and interviews the applicants’ neighbors, acquaintances, employers, and other
references. Once the district attorney’s office completes its investigative work, it
sends a memorandum to the presiding judge of the superior court, summarizing
the results of its background checks. The prospective grand juror applications
remain confidential within the district attorney’s office, and individual deputy
district attorneys are not asked to give an opinion on individual prospective grand
jurors unless the applicant lists a deputy district attorney as a reference.
Another declaration, from the manager of the Ventura County Jury
Commissioner’s Office, explained: “All applications received by Jury Services
are forwarded to the Office of the District Attorney for . . . background
investigation and subsequent report to the Court. The District Attorney advises the
Court of any potential individual exclusion based on the statutory qualifications
for service and other information (such as reputation for honesty and integrity)
that bears on a prospective grand juror’s ability and suitability for service.”
“Three judges . . . analyze the prospective grand juror questionnaires in light of
. . . the results of juror interviews[ ] and background reports from the District
Attorney. The [judges] . . . recommend[ ] 30 persons for a proposed Grand Jury
panel to the full compl[e]ment of Superior Court judges. [¶] . . . [T]he Superior
Court judges review the proposal . . . and finally select 30 persons, including any
jurors held over from the previous grand jury . . . . From that pool, the Grand Jury
is finally impaneled, by the Clerk’s drawing of 19 names.”
Defendant relied on a letter dated November 12, 1993, and sent from the
district attorney to the presiding judge of the superior court, in which the district
attorney observed that he had heard three grand jurors felt they were free to
disregard the evidence and the law in one case and thus improperly blocked an
indictment of a criminal defendant.
In denying the motion, the trial court stated, “I disagree with what’s been
characterized as the District Attorney’s office giving the Court advice [on selecting
grand jurors]. I don’t believe they give the Court advice. I think they give us
information which the Court needs in order to have a—an adequate and law-
abiding grand jury.”
Defendant contends the court erred in denying his motion to quash the
indictment. He contends that the district attorney’s investigative role usurped the
function of the judiciary in selecting grand jurors. “[T]he District Attorney
crossed the line from merely assisting the Superior Court by providing preexisting
information on prospective [grand] jurors to conducting its own investigation [by
means of information gleaned from] neighbors and employers[,] with the power to
shape the information provided to the court.” Defendant objects to what he views
as the ultra vires “power of the prosecutor to make discretionary judgments about
what information the court will get . . . .” In light of the November 12, 1993,
letter, defendant maintains, “the record suggests that the District Attorney’s
decision to expand his office’s role in the process of selecting grand jurors was a
policy decision made at the highest levels and motivated in part by dissatisfaction
with the decision by the grand jury not to indict in a particular case.”
The Penal Code contains a number of statutes governing the selection of
grand jurors (see, e.g., §§ 893, 896, 900, 902, 903.1, 903.2, 908.2, 909), and it is
evident that the jury commissioner followed the relevant statutory directives.
Respondent argues that the statutes require preliminary determinations of the basic
qualifications of potential grand jurors and that the district attorney’s office, with
its investigative capacity, is ideally suited to gather this basic information.
Performing this task, respondent maintains, does not violate the state or federal
We find no evidence in the record that the grand jury that indicted defendant
was formed by an unconstitutional process. Plainly, the superior court judges
selected the grand jurors, relying on their own inquiries and routine background
checks performed by the investigative staff of the district attorney’s office. Except
insofar as a finding by the investigative staff would result in statutory
disqualification, the judges enjoyed unfettered discretion in their use of the staff’s
findings, and the district attorney’s office’s role was limited to providing the
investigative services requested by the jury commissioner, a judicial officer (Code
Civ. Proc., § 195; Adams v. Superior Court (1974) 12 Cal.3d 55, 59; Pantos v. City
and County of San Francisco (1984) 151 Cal.App.3d 258, 262). The judges were
free to give any weight they wished to the results of the district attorney staff’s
interviews of prospective grand jurors’ neighbors, employers, and acquaintances,
and to disregard the results entirely if they wished. It cannot be said that the
district attorney’s office played any role beyond the limited functions the superior
court delegated to it in shaping the constitution of the grand jury. The district
attorney’s complaint about the conduct of three seated grand jurors, defendant
contends, is a significant indication of overreaching by the district attorney’s
office. The complaint, however, has no bearing on the procedures used to
constitute the grand jury. The trial court properly denied the motion to quash the
2. Excusing Prospective Jurors for Cause Over Defense Objections
Defendant contends the court erred in excluding for cause four prospective
jurors because of their views on the death penalty, in violation of his state and
federal constitutional rights. The applicable law is settled. The trial court may
excuse for cause a prospective juror whose views on the death penalty would
prevent or substantially impair the performance of that juror’s duties. (People v.
Mayfield (1997) 14 Cal.4th 668, 727.) “On appeal, we will uphold the trial court’s
ruling if it is fairly supported by the record, accepting as binding the trial court’s
determination as to the prospective juror’s true state of mind when the prospective
juror has made statements that are conflicting or ambiguous.” (Ibid.) “Deference
to the trial court is appropriate because it is in a position to assess the demeanor of
the venire, and of the individuals who compose it, a factor of critical importance in
assessing the attitude and qualifications of potential jurors.” (Uttecht v. Brown
(June 4, 2007, No. 06-413) ___ U.S. ___, ___ [2007 U.S. Lexis 6965, p. *16].)
As we explain, we have reviewed the record as to each of the four
prospective jurors and find no basis on which to overturn the trial court’s rulings.
All gave conflicting and sometimes ambiguous statements, but all also made
statements supporting the court’s findings that their views would at least
substantially impair their performance of their duties. The fact that these jurors
also gave statements that might have warranted keeping them as jurors does not
change this conclusion. “The question before us as a reviewing court . . . is
whether the evidence supports the actual rulings, not whether it would have
supported different rulings.” (People v. Smith (2003) 30 Cal.4th 581, 602.)
a. Prospective Juror No. 4 of October 17, 1994
On his written juror questionnaire, when asked to rate himself on a scale of 1
to 10, with one being strongly against the death penalty and 10 strongly in favor of
it, Prospective Juror No. 4 of October 17, 1994, marked that he was a 2. He
answered the questionnaire’s inquiry, “Briefly describe your general feelings about
the death penalty,” with “I would really not want to be confronted with the
decision to apply the death penalty.” The questionnaire also asked, “assuming a
defendant was convicted of a premeditated murder during the course of a
kidnapping and robbery and a special circumstance, would you: [¶] (a) No
matter what the evidence was, always vote for the death penalty. [¶] (b) Always
vote for life without possibility of parole. [¶] (c) I would not automatically vote
for either life without possibility of parole or the death penalty. I would consider
all the evidence and vote my conscience.” The prospective juror checked choice
At jury voir dire, this prospective juror stated that he might be an unsuitable
juror from the perspective of both parties. Defendant might find him undesirable
to serve on the jury because defendant had lived next door to the prospective juror
briefly and the victim could have been his wife or daughter. The prosecution
might find him undesirable because “[i]t would be with great trepidation that I
would vote for the death penalty.”
Both parties questioned this prospective juror extensively regarding his
attitude toward the death penalty He gave conflicting and equivocal responses.
He told defense counsel “I would find it quite difficult to . . . rule [on] the . . .
death penalty,” but that “I would not say it is impossible.” This was the first of
three times that the prospective juror told defense counsel that he would find it
difficult to decide the question of penalty.
Asked by defense counsel, “You feel that there are some murder cases
w[h]ere you would consider the death penalty as a possible sentence?” the
prospective juror replied, “Right now without hearing it I would probably say no.
But if I heard all of the details, I may be convinced.” He told defense counsel that
he thought he would consider both sentencing options. But when defense counsel
asked the same question in a different way, “Do you feel you would be able to
consider all of the aggravating and mitigating evidence?” he replied, “With
difficulty . . . .”
Thereafter the prosecutor questioned the prospective juror. The prosecutor
explained, “If your conscience tells you that [the lesser sentence] is the appropriate
penalty you could have a feeling that the aggravating circumstances . . .
overwhelmingly outweigh the . . . ‘mitigating circumstances,’ and yet the law does
not require you to vote for the death penalty.” The prospective juror responded,
“You are making it easier for me. [¶] . . . [¶] . . . I would not feel so guilty about,
you know, religiously or any other reason about voting for the death penalty. . . .”
The prosecutor sought clarification: “Could you explain that a little bit now? ‘It
makes it easier’?” The prospective juror answered, “Because you just said that
there is no circumstance that would make me—there is no circumstance unless—
in other words, you would not back me into that situation.”
The prosecutor queried, “using the words that you yourself used a few
minutes ago, you said ‘When it comes right down to the wire,’ you are not sure if
you could vote for the death penalty. [¶] Knowing that there is no circumstance
where you have to, when it comes right down to the wire do you feel that . . . if
you had the option between either the death penalty or life in prison without
possibility of parole[,] . . . you would always vote for life in prison without
possibility of parole?” He answered, “I feel like saying ‘yes,’ but, you know, then
again it depends on the—probably the information. [¶] Right now I—it’s like
saying I can’t think of any scenario that would, you know, like information that
would lead me to say nothing but death penalty, but, you know, we all learn.”
The prosecutor asked him about his juror questionnaire response that he was
a 2 on a scale of 1 to 10 of favoring the death penalty. The prospective juror
affirmed his view. The prosecutor then asked, “When I consider that combined
with what you have told us about how you expect your conscience would bother
you if you voted for the death penalty . . . , I get the impression . . . that as long as
you were not backed into a corner where you were required to vote for the death
penalty, that you always had an option, that you would always vote for life in
prison. Is that impression correct?” The prospective juror replied, “Not—not
completely, no.” The prosecutor asked, “Can you tell me how it is wrong?” and
the prospective juror replied, “I am not sure I know how to answer that. [¶] Just
like I said to the lady on the Defense there, . . . it is similar to if you were being
attacked or felt that strongly that you would in fact kill someone else, you know,
that you could rise to that occasion. . . . [¶] . . . [¶] That I could essentially,
personally, be judge, jury and executioner if somebody was attacking me, which is
actually going no further than what I would be asked to do, you know, serving on
a jury where I am only asked to be the juror.”
The prosecutor asked, “with your attitude toward the death penalty . . . do
you think you would be a fair juror to the Prosecution, considering your attitudes
toward the death penalty, and considering [that] the Prosecution will be asking you
to vote for the death penalty?” The prospective juror replied, “you should judge
that up front, the fact that I marked ‘2’ on the scale of 1-to-10.” He soon added,
“when you say ‘fair to the Prosecution,’ I would be certainly on the biased side
against the Prosecution in that case, certainly. Certainly I would. [¶] I would not
be to your advantage. It would be with great trepidation that I would vote for the
death penalty, that’s obvious.”
Finally, the prosecutor asked, “Well, is it true that to vote for the death
penalty you would have to go against your conscience and how you feel about the
death penalty?” He responded, “I would say I would really have to. That would
be pretty much it. I have to go against my conscience.”
The trial court excused him, stating, “The gentleman is an enigma. He said a
lot of things that were inconsistent and a lot of things I, frankly, did not
understand, but I’m not convinced that he could be fair to the People.”
In light of this prospective juror’s conflicting and equivocal statements, we
must defer to the trial court’s ruling.
b. Prospective Juror No. 3 of October 6, 1994
Substantial evidence also supports the trial court’s ruling that Prospective
Juror No. 3 of October 6, 1994, was substantially impaired in her ability to impose
capital punishment in a proper case. She gave conflicting answers throughout voir
dire. At times she stated that she could follow the law. But at other times she
expressed either doubt about her willingness to impose the death penalty or an
inability at all to do so. For example, she stated, “I can’t conceive of taking
somebody’s life,” and “I couldn’t take the life of a cat or [a] dog.”
Defendant argues that the trial court granted the challenge for cause of this
prospective juror on the assertedly incorrect ground that “I don’t think she quite
understands the area of discretion that remains” in deciding sentence. He
maintains that the court could have educated the prospective juror with additional
comments or questions. But the court also said, “I think she’s prejudiced against
the death penalty.” The court was stating, in a shorthand form, its conclusion that
she could not follow her oath or the law. Substantial evidence supports that
c. Prospective Juror No. 4 of October 11, 1994
Prospective Juror No. 4 of October 11, 1994, stated that because of her
strongly felt opposition to the death penalty she would find it “difficult . . . even if
the aggravating circumstances were overwhelming in comparison to the
mitigating” to follow the sentencing instructions. To be sure, she gave conflicting
answers, including an ability to keep an open mind until all of the evidence had
been presented. But the prospective juror stated that her open-mindedness
amounted only to a “shred.” She acknowledged stating on her questionnaire and
reaffirmed her belief that, as the prosecutor quoted from her questionnaire, “I do
not think I believe in the death penalty. I feel it’s ultimately wrong for a human to
decide that another must die.” “[I]t’s too arbitrary,” she explained. The
prospective juror also expressed doubt that she could convict defendant of crimes
that could lead to a death sentence. She alerted the trial court and parties to her
fear that her attitudes could lead to a mistrial at the penalty phase. The court
implicitly concluded that the prospective juror was substantially impaired, and
granted the challenge. Substantial evidence supports its decision.
d. Prospective Juror No. 5 of October 18, 1994
Prospective Juror No. 5 of October 18, 1994, made a number of conflicting
oral and written statements. She wrote on her questionnaire, “As a Catholic I was
brought up not to judge anyone. God was the only one with that right.” She
checked that she would always vote for life imprisonment without possibility of
In response to questions by defense counsel, this prospective juror stated that
she could set aside her religious beliefs and vote to impose the death penalty on
defendant if persuaded it was warranted. In stating that she could vote for the
death penalty, she expressly retracted the choice she had made on her juror
questionnaire that she would always vote for life imprisonment without possibility
On further voir dire by defense counsel, this prospective juror said that,
contrary to her responses to some of the prosecutor’s questions, she could vote for
the death penalty in a proper case even if it meant, in counsel’s words, that she
“would go against your own personally held beliefs.” Presented with a follow-up
question by the trial court, she responded, after a pause of unknown length, that it
would not be a sin to vote to impose a death sentence on defendant.
Defense counsel conceded that this prospective juror had “gone back and
forth just like many jurors have . . . .” But he argued that made her no different
from other prospective jurors whom the trial court had passed for cause. The court
pronounced her “another enigma . . . . I really don’t know what she is going to
do.” But he concluded that she would have to choose between her religious
beliefs and the law, and “I just don’t have enough confidence that she is going to
follow the law.”
We must also defer to this ruling.
The record here is similar to that in People v. Griffin (2004) 33 Cal.4th 536,
where we also rejected the defendant’s claim that four prospective jurors who had
been excused on the ground of substantial impairment in their ability to impose
capital punishment were improperly excused. Here as there, “the trial court had
the opportunity to observe the demeanor and to assess the degree of uncertainty
and reluctance of each prospective juror and resolved any equivocal and
conflicting responses in a manner that caused the court to conclude that each of
these jurors’ views . . . would substantially impair the juror’s ability to make a
penalty determination in accordance with the court’s instructions. On this record,
we have no reason or basis for second-guessing that finding. Contrary to
defendant’s suggestion, the fact that at some point each of these prospective jurors
may have stated or implied that she would perform her duties as a juror did not
prevent the trial court from finding, on the entire record, that each nevertheless
held views . . . that substantially impaired her ability to serve.” (Id. at p. 561.)
Defendant’s claim is without merit.
3. Treating Death- and Life-Leaning Prospective Jurors Differently
Defendant claims that the trial court violated the federal constitutional
guaranties of due process of law, trial before an impartial jury, and equal
protection of the laws by applying different standards in ruling on motions to
excuse for cause jurors who seemed to favor the death penalty and those who
seemed opposed to it. He maintains that the court applied different standards in
determining whether the two groups of jurors were substantially impaired in their
ability to follow the law and that it used different procedures in evaluating them.
According to defendant, the trial court focused on whether the death penalty
adherents were committed to following his instructions regarding aggravating and
mitigating evidence and did not examine critically whether they could be fair on
the issue of sentence, whereas with death penalty skeptics, the court did the
reverse, not concerning itself with whether prospective jurors would commit to
following its instructions, but examining critically whether they could be fair to
the People. This differential inquiry, he maintains, raised the barrier for the death
penalty skeptics to serve on the jury vis-à-vis that faced by the death penalty
adherents. Procedurally, defendant asserts, the court asked fewer questions of the
prospective jurors the prosecution challenged for cause than of those defendant
challenged, thereby rehabilitating death penalty adherents without attempting to
The contentions are without merit. As stated, “the qualifications of
[prospective] jurors challenged for cause are matters within the wide discretion of
the trial court, seldom disturbed on appeal.” (People v. Jones (2003) 29 Cal.4th
1229, 1246; see Uttecht v. Brown, supra, ___ U.S. at p. ___ [2007 U.S. Lexis
6965, at p. *16].) A trial court “possesse[s] discretion to conduct oral voir dire as
necessary and to allow attorney participation and questioning as appropriate.”
(People v. Robinson (2006) 37 Cal.4th 592, 614; see People v. Carter (2005) 36
Cal.4th 1215, 1250 [manner of conducting voir dire not basis for reversal unless it
makes resulting trial fundamentally unfair].) No abuse of discretion occurred in
the court’s determination of the prospective jurors’ qualifications to serve or its
manner of conducting voir dire.
We have reviewed the voir dire of each prospective juror to which defendant
refers in this claim, namely five challenged by the defense (Deborah P.,5
Prospective Juror No. 10 of October 4, 1994, Prospective Jurors Nos. 3 and 10 of
October 5, 1994, and John O.) and additional prospective jurors challenged by the
prosecution (Veronica R. and Prospective Juror No. 10 of October 6, 1994). In
assessing defendant’s contention, we have also considered the trial court’s
Some of the prospective jurors are referred to by name and others by
number. Evidently the trial court elected to change its method of identifying them
as voir dire proceeded.
treatment of four other prospective jurors, discussed above (ante, pp. 23-29),
whom the prosecutor challenged. We see nothing suggesting the court applied
different standards to the various jurors. Indeed, the court explained on the record
that it was applying the same standards regardless of whether the prospective juror
favored or opposed the death penalty. “The bottom line in my mind,” the court
stated, “is whether they will follow the law no matter what their leanings are or
what their inclinations are. [¶] If I am convinced after I hear everything they have
said that they will follow the law, then I will deny the challenge.” The court went
on: “If I have a doubt as to whether they will follow the law or think they won’t,
then I will grant the challenge, and that is what I have been ruling, basing the
rulings on.” The court also advised counsel that “every time I have a doubt in my
mind I’m going to resolve it in favor of the Defendant because he has got his life
on the line and because I’m concerned about having to try this case over again.”
We first address the five prospective jurors in question whom the defense
challenged. In each case, the trial court denied a motion to excuse the prospective
juror for cause.
(1) Deborah P. stated generally during her voir dire that she would be open-
minded, follow the trial court’s instructions, and, at any eventual penalty phase,
listen to the presentation of evidence without prejudging defendant’s deserved
punishment. But she also stated initially that she would not consider evidence of
parental neglect or abuse of defendant in childhood or his consumption of alcohol
or drugs as mitigating evidence; she would base her decision solely on the
circumstances of the crimes.
Defense counsel then asked if Deborah P. would vote for the death penalty if
it were proven that defendant had committed premeditated murder with special
circumstances. The prosecutor objected to that question as calling for speculation.
The trial court sustained the objection and proceeded to explain the bifurcated
nature of a capital trial to Deborah P., asking whether at any eventual penalty
phase she would consider all the evidence that the court directed her to evaluate.
She answered that she would, and affirmed that view during further examination
by defense counsel and the prosecutor.
Deborah P. also stated that her best friend was murdered by her husband in
1987. She testified as a character witness for her deceased friend, in a case
prosecuted by the prosecutor in defendant’s case. She stated that because she
knew nothing about defendant, neither the murder of her friend nor the
prosecutor’s involvement in that case would affect her ability to judge defendant
fairly. Despite her connection with the decedent in that case, she had not followed
In addition, less than three months before Deborah P.’s voir dire testimony,
the father of her daughter (the two were never married) also was murdered. She
considered him a friend. Her daughter had recovered from the experience.
Deborah P. stated that despite a degree of similarity between the murder of her
daughter’s father and of O’Sullivan, who had a child, she could remain impartial
in passing sentence on defendant if the trial reached that stage. She felt that the
death penalty should be imposed only for certain types of murders, not all of them.
She maintained that she had no opinion about the propriety of the death penalty.
Defendant predicated his challenge for cause on an assertion that Deborah P.
would be biased because her friend had been murdered and the prosecutor trying
the case against defendant had prosecuted the murderer in the prior case. The trial
court denied the challenge, stating that Deborah P. “is indicating she is going to
have some difficulties, but she feels she will deal with it and I’m going to take her
word for it.”
(2) Defense counsel’s voir dire of Prospective Juror No. 10 of October 4,
1994, revealed that she held unorthodox views about criminal procedure and the
rights of criminal defendants but would subordinate those views to the law. In
addition, the prospective juror declared that in her mind defendant was guilty of
the murder of Kellie O’Sullivan, that the murder was senseless, and that to murder
a mother of a child for no reason is especially depraved; hence she would be
biased against defendant. She opined that the death penalty is “morally right.”
She emphasized that although she would lean toward the death penalty if at the
guilt phase defendant were shown to have committed premeditated murder and
was death-eligible, she would not automatically impose the greater sentence under
those circumstances. But she also stated that she would not find certain types of
mitigating evidence helpful, though she would listen to its presentation.
The trial court asked the prospective juror to clarify her views, and she
explained that she would do more than merely listen to the presentation of
mitigating evidence while simultaneously rejecting it out of hand, but would
actively consider any such evidence in deciding sentence. The court asked her if
she could be fair to both parties at any eventual penalty phase, and she said yes.
The court denied defendant’s challenge for cause, stating that initially he was
dubious of the prospective juror’s ability to be fair but had become “satisfied that
now she understand[s] what the law is and that she will follow the law . . . .”
Clearly the court found it necessary to ask the prospective juror questions to reach
a decision about her, and doing so was not unfair to defendant. The court’s
conclusion regarding the juror’s qualification to serve, moreover, is supported by
(3) Prospective Juror No. 3 of October 5, 1994, stated, in answer to defense
counsel’s questions, that she favored the death penalty for all premeditated
murders regardless of the mitigating evidence of defendant’s childhood
difficulties. The prosecutor thereafter attempted to rehabilitate the prospective
juror. In response to the prosecutor’s voir dire, the prospective juror said, “I feel
that I am strongly in favor of the death penalty,” but conceded that circumstances
might conceivably exist that would “sway” her from imposing a death sentence.
She would “try” to deliberate on sentence with an open mind.
The trial court explained to this prospective juror that even the most
horrendous murder imaginable would not automatically result in the death penalty
under California law. It asked her whether she could weigh the evidence fairly.
She replied, “I have a strong opinion, and I have a lot of feelings about it, but I
think I can be fair and weigh everything equally.”
In ruling against defendant’s motion to excuse this prospective juror for
cause, the trial court stated its conviction, which finds support in the record, that
the prospective juror would follow the law and would set aside her personal views
of the way the law ought to operate. Again, it is evident that the court found it
necessary to ask the prospective juror questions to reach a decision about her, and
doing so worked no unfairness to defendant.
(4) Prospective Juror No. 10 of October 5, 1994, held views similar to those
of Prospective Juror No. 3 of that same day, and the trial court explained that the
law would require her to consider mitigating and aggravating evidence. In
response to further questions by the parties, she said that she would try to do as the
court instructed. We see nothing improper in the court’s explaining the law to the
prospective juror, nor in its failing to engage in a similar dialogue with other
prospective jurors whose voir dire did not give rise to the same concerns as did
that of this prospective juror.
(5) John O. declared that after reading newspaper accounts he thought
defendant was guilty of murdering O’Sullivan. He said “I don’t think I would
give him a fair chance, if I was on the jury” and “I would not want me on the jury
if it was me [in defendant’s shoes].” Despite his personal feelings about
defendant, however, John O. agreed that criminal defendants should not be
required to prove their innocence, that he would judge defendant based only on the
evidence presented in court, and that if the prosecution presented insufficient
evidence against defendant to find him guilty beyond a reasonable doubt, he
would find him not guilty. The trial court then asked for further assurances that
John O. would “judge the case based on the evidence that comes from that witness
stand,” and John O. replied that he could do so. Again, it is evident that the court
found it necessary to question the prospective juror in order to reach a decision
about his suitability to try the case, and doing so worked no unfairness to
As to the jurors under consideration, we see neither abuse of discretion in the
way the trial court conducted voir dire nor any disparity in the standards it used to
evaluate the prospective jurors’ suitability for service, and we will not disturb its
rulings on appeal.
We next address the two additional prospective jurors in question whom the
prosecution challenged for cause and whom the trial court excused on that basis
without asking any questions.
(1) Veronica R. stated, in answer to a question by defense counsel, that she
opposed the death penalty and that her feelings had grown stronger with the
passage of time. She also stated, however, that she could follow the law rather
than her own personal views. When the prosecutor questioned her, she reverted to
her view that “I don’t feel it is my choice to take somebody’s life. It is just the
way I was brought up, my religion and background.” She explained that God’s
law takes precedence over those of humankind and that a vote for the death
penalty would be a violation of God’s law. “I am Catholic and I don’t think we
should take a life,” she affirmed.
Defense counsel attempted to rehabilitate Veronica R. She reaffirmed twice
that “I’m against the death penalty,” but that a case might exist in which she could
vote for the greater sentence if “I . . . just block out everything how I feel.” That
did not satisfy the court, which stated, “I have just got to go by the entirety of the
examination and demeanor of the [prospective] juror and call it, and this time I
really don’t think [she] can be fair and follow the law . . . .”
We see no impropriety in the trial court’s conduct of voir dire of this
prospective juror. It was obvious from Veronica R.’s voir dire that she was at least
substantially impaired in her ability to follow the law and the court’s instructions if
the case reached a penalty phase—her religious scruples would take precedence
over any secular rule. The court did not abuse its discretion either in the manner
of conducting voir dire (i.e., failing to ask any questions of the prospective juror)
or in its evaluation of the prospective juror’s suitability for service, and we will
not disturb its ruling on appeal.
(2) Like Veronica R., Prospective Juror No. 10 of October 3, 1994, declared,
in answer to a question by defense counsel, “I’m against the death penalty.” And
like Veronica R., she also told defense counsel that she could follow the law rather
than her own personal views. But then she reverted to her view that “I’m against
the death penalty” and “it would be difficult to” impose it. She declared that she
could not impose it in any case involving circumstances broadly similar to those
present in the case against defendant. Thereafter she changed course again and
said she could follow the law and consider imposing the death penalty. In
response to the prosecutor, the prospective juror clarified her statements to defense
counsel and declared that she could not impose capital punishment. She had
written on her juror questionnaire that one of two “absolute” moral precepts is
“not to take another’s life,” and at the time of voir dire she “could consider the
evidence” at the penalty phase “for either one of those punishments” but having
done so “could not agree to the death penalty” no matter what the evidence was.
The trial court found that she could not follow the law and granted the motion to
Again, we see no impropriety in the trial court’s conduct of voir dire of this
prospective juror. Plainly, this prospective juror was substantially impaired in her
ability to follow the law and the court’s instructions if the case reached a penalty
phase—her moral opposition to the death penalty was close to absolute. The court
did not abuse its discretion either in the manner of conducting voir dire (i.e.,
failing to ask any questions of the prospective juror) or in its evaluation of the
prospective juror’s suitability for service, and we will not disturb its ruling on
The foregoing discussion disposes of defendant’s claim that the trial court
imposed a differing standard in evaluating prospective jurors’ qualifications and
treated each group differently. Defendant invokes People v. Champion (1995) 9
Cal.4th 879, for the principle that “trial courts should be evenhanded in their
questions to prospective jurors during the ‘death-qualification’ portion of the voir
dire, and should inquire into the jurors’ attitudes both for and against the death
penalty to determine whether these views will impair their ability to serve as
jurors.” (Id. at pp. 908-909.) But the court followed the rule of Champion here.
It evaluated each prospective juror individually and evenhandedly to reach a
decision on the suitability of each for jury service. As noted, defendant contends
that the trial court asked fewer questions of certain prospective jurors than of
certain others, but in People v. Navarette (2003) 30 Cal.4th 458, we rejected a
similar claim, commenting that “a numerical counting of questions . . . is not
sufficient to establish a constitutional violation in this context.” (Id. at p. 487.) A
reviewing court should not require a trial court’s questioning of each prospective
juror in the Witherspoon-Witt context (Wainwright v. Witt (1985) 469 U.S. 412;
Witherspoon v. Illinois (1968) 391 U.S. 510) to be similar in each case in which
the court has questions, lest the court feel compelled to conduct a needlessly broad
voir dire, receiving answers to questions it does not need to ask.
Accordingly, defendant’s claim lacks merit.
4. Testimony Regarding Defendant’s Burglary Adjudication
Defendant claims that the trial court erred in permitting the jury to learn that
he was on juvenile probation for the felony offense of burglary when he
committed the crimes for which he was being tried. He presents a guilt phase
claim, which we discuss here, and a penalty phase claim, which we discuss in that
The prosecution theorized as follows: Defendant needed to steal a car
without being detected, opportunistically robbed O’Sullivan of her vehicle, and
murdered her so that she could not report the robbery to the police. In addition to
needing the vehicle to abduct Stephanie C., defendant wished to avoid arrest for
violating the probation he had been sentenced to by the juvenile court as a result of
the automobile burglary. He needed time to flee the area, which he would gain by
The prosecution asserted that introducing testimony about defendant’s
probationary status would buttress other testimony it planned to introduce, to the
effect that he had made statements that he needed to leave the state to avoid arrest.
Defendant objected to the admission of any evidence about his probationary
status as substantially more prejudicial than probative. (Evid. Code, § 352.) The
trial court overruled the objection.
The parties then discussed the contours of the evidence to be admitted
surrounding defendant’s juvenile probation. Defendant objected that introducing
evidence of the nature of the underlying offense would be improper, implicitly
arguing that it would be substantially more prejudicial than probative, in violation
of Evidence Code section 352 and irrelevant under Evidence Code section 350.
The trial court disagreed, ruling the prosecution could present evidence that
defendant had violated his probation and that he was on probation for a felony
Thereafter, Michael L’Ecuyer, a Ventura County probation officer, testified
before the jury that on June 30, 1993, defendant was on probation for a felony
level offense, namely burglary, that he explained defendant’s terms of probation to
him, including that he would be arrested for violating them, and that he set another
appointment for him for July 15. When defendant failed to appear, L’Ecuyer
petitioned the juvenile court for an arrest warrant. On cross-examination,
defendant elicited testimony that L’Ecuyer believed defendant to be homeless, that
defendant had transportation problems that made the required personal contact
with probation authorities difficult, that defendant was under a minimum
supervision status, and that his offense was for second degree burglary of an
Defendant’s friend Dewaele and another witness, Robert Moore, testified that
defendant told them he needed to leave town because of difficulties with the law.
Dewaele testified defendant told him he was going to acquire a false identity “just
to survive” and leaving town “just to get away from things,” including his
probation officer and the police, and until “everything cooled down” with the
officer. Moore testified defendant told him he wanted to “take off and be by
myself . . . to get things figured out” because “he had a little problem with the law,
a little minor thing . . . that he wanted to get . . . straightened out.” Moore did not
recall defendant saying anything about a burglary; rather, defendant said the
“minor thing” “was about paying back on [an] auto accident.” But Moore also
said his memory of what defendant had said was imperfect.
Defendant asserts that permitting the jury to hear evidence that he was on
probation for a felony offense violated Evidence Code section 352, i.e.,
introducing evidence of the felony nature of the juvenile adjudication was
substantially more prejudicial than probative. We review for abuse of discretion a
trial court’s ruling on a motion to exclude evidence as substantially more
prejudicial than probative. (People v. Cox (2003) 30 Cal.4th 916, 955.)
The evidence barred by Evidence Code section 352 is evidence that uniquely
causes the jury to form an emotion-based bias against a party and that has very
little bearing on the issues of the case. (People v. Minifie (1996) 13 Cal.4th 1055,
1070-1071.) Defendant argues that the maximum consequence for violating his
probation was 30 days’ confinement, and that was all the jury needed to know.
Assuming for argument’s sake that the precise nature of the conduct underlying
defendant’s juvenile adjudication carried a potential for prejudice outweighing its
probative value, we conclude its admission was harmless. That defendant had a
reason, in addition to his desire to abduct Stephanie C., for leaving the area — to
avoid confinement on the probation violation — could be inferred from the
testimony of Dewaele, Moore and L’Ecuyer, and the jury could find that reason to
be probative of his intent in committing the capital offenses. In light of the
circumstances of the capital offenses, the jury’s awareness that defendant had
committed an auto burglary as a juvenile could not have made a difference in the
outcome of the case.
Cross-examination of Prosecution Witness
Defendant contends that the trial court erred in sustaining prosecution
objections to evidence he wished to develop. Defendant also claims that the result
deprived him of his right to confront the witnesses against him under the
confrontation clause of the Sixth Amendment to the federal Constitution. Because
he did not raise this claim before the trial court, he has forfeited it. (People v.
Partida (2005) 37 Cal.4th 428, 435; People v. Alvarez (1996) 14 Cal.4th 155,
186.) In any event, we see no reversible error.
As noted, eyewitness testimony suggested that about a mile from the pet store
O’Sullivan was in the passenger seat of her vehicle, struggling with defendant.
The witness to the struggle, Margaret Spalding, saw the vehicle swerving on the
road as the two occupants, whom she could see but could not later identify, fought.
The male occupant struck the female several times in her midriff as he tried to
maintain control of the vehicle. The male appeared angry, the female frightened.
Defendant refers to three occasions on which the trial court sustained
prosecution objections to questions defense counsel had asked of Spalding:
(1) In the course of a lengthy cross-examination of the witness, defendant
tested Spalding’s recollection. Defendant attempted to show that her recollection
was clouded by other preoccupations in her life and the numerous errands she was
running on the day she witnessed the altercation in the nearby vehicle. Spalding
testified that “composing a letter” was one of the distractions on the day she
witnessed the altercation. Later, counsel asked, “Was this a letter to your son’s
therapist?” The prosecutor objected on relevance grounds and the trial court
sustained the objection. Over defense argument that it wished to introduce
evidence that Spalding was distracted by family problems at the time of the
incident, the court ruled, “It’s not the kind of thing that’s going to [affect]
recollection or perception. . . . The lady is entitled to her private life.” The court
also sustained an objection on relevance and asked-and-answered grounds a later
question from defense counsel whether “other things” were troubling the witness
on the day of the incident.
(2) Defense counsel asked Spalding if she once told the prosecutor’s
investigator that on the day of the incident she was “making some trips to and
from Home Depot.” The prosecution objected on grounds of hearsay not within
any exception, and the trial court sustained the objection. Defense counsel did not
dispute the ruling, but rephrased the question, asking the witness whether she
remembered doing various activities on the day in question, and she replied that
(3) Defense counsel asked Spalding if it appeared from the vehicle
occupants’ behavior that they knew each other. The prosecutor objected to the
question as calling for speculation, and the trial court sustained the objection.
Turning to the specific objections made and sustained:
(1) In arguing that the trial court erred in excluding the nature of the letter
Spalding was writing on the day she witnessed the struggle in O’Sullivan’s
vehicle, defendant relies on Evidence Code section 780, which provides, “Except
as otherwise provided by statute, the court or jury may consider in determining the
credibility of a witness any matter that has any tendency in reason to prove or
disprove the truthfulness of his testimony at the hearing, including . . . . [¶] . . .
[¶] (c) The extent of his capacity to perceive, to recollect, or to communicate any
matter about which he testifies.” Evidence Code section 780, however, does not
“say that all evidence of a collateral nature offered to attack the credibility of a
witness would be admissible. Under Section 352, the court has substantial
discretion to exclude collateral evidence. The effect of Section 780, therefore, is
to change the present somewhat inflexible rule of exclusion to a rule of discretion
to be exercised by the trial judge.” (Cal. Law Revision Com. com., 29B West’s
Ann. Evid. Code (1995 ed.) foll. § 780, p. 587; see People v. Brown (2003) 31
Cal.4th 518, 544-545.) We review the court’s ruling under the deferential standard
of abuse of discretion. (People v. Benavides (2005) 35 Cal.4th 69, 90.) The trial
court did not abuse its discretion in ruling that the inquiry into the nature of the
letter Spalding was composing would have been of marginal relevance at best (cf.
Evid. Code, § 350). (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
(2) As for counsel’s inquiry whether Spalding told an investigator about trips
to Home Depot, the People argue that this inquiry about her out-of-court statement
plainly called for inadmissible hearsay, i.e., for “evidence of a statement . . . made
other than by a witness while testifying at the hearing and . . . offered to prove the
truth of the matter stated” (Evid. Code, § 1200, subd. (a)) and the objection was
properly sustained. Defendant argues that he was merely attempting to refresh the
Even if hearsay, “the reference was admissible to refresh [Spalding’s]
recollection” (People v. Kennedy (2005) 36 Cal.4th 595, 623; see id. at p. 622) and
the trial court should have overruled the objection. Nevertheless, there was no
reversible error. (People v. Watson (1956) 46 Cal.2d 818, 836.) The case did not
come close to hinging on the witness’s ability to answer the question, and certainly
there was no reasonable probability that if the witness had been able to answer it,
the outcome would have differed. (People v. Ayala (2000) 23 Cal.4th 225, 271.)
(3) Defendant argues that counsel’s inquiry about the vehicle’s occupants
called for an admissible lay opinion (Evid. Code, § 800). The trial court sustained
the prosecutor’s objection on the basis that the question called for a speculative
answer. We review for an abuse of discretion a trial court’s ruling that a question
calls for speculation from a witness. (People v. Marlow (2004) 34 Cal.4th 131,
152.) Under that deferential standard, we cannot second-guess the court’s ruling
that asking the witness whether she thought the two vehicle occupants were acting
as if they knew each other was speculative. The court was implicitly ruling that
the question called for a conjectural lay opinion. Such evidence would not be
“[h]elpful to a clear understanding of [Spalding’s] testimony.” (Evid. Code, § 800,
subd. (b).) The court’s ruling did not fall outside the bounds of reason.
In sum, no reversible error occurred.
6. Claims Regarding Defendant’s Statements to His Grandmother
Defendant claims that violations of his constitutional rights and Evidence
Code section 352 occurred when the state arranged a conversation between him
and his grandmother, Lois Thornton, at the police station following his extradition
from Nevada but before he was charged with crimes against O’Sullivan,
Stephanie C., and Stephanie’s mother. Defendant contends additional such
violations occurred when the trial court denied his motions to exclude the dialogue
from evidence. We disagree.6
On pretrial motions dated July 22, 1994, and October 13, 1994, defendant
sought to exclude from evidence the tape and transcript of the conversation. In the
first motion, he argued that his statements were obtained in violation of the Fifth
Amendment’s self-incrimination clause, the Sixth Amendment’s guaranty of
counsel, and the Fourteenth Amendment’s guaranty of due process. In the second,
he argued that introducing the material into evidence would violate Evidence Code
section 352, which requires excluding evidence that is substantially more
prejudicial than probative. The trial court denied each motion following hearings.
The hearing on the first motion produced the following evidence: As early as
September 17, 1993, law enforcement suspected defendant of involvement in the
disappearance of O’Sullivan and the kidnapping of Stephanie C. The principal
investigator, Ventura County Sheriff’s Department Sergeant Michael D. Barnes,
initiated wide-ranging attempt-to-locate requests on September 18, 1993. On
September 19, 1993, Sergeant Barnes and another detective drove to Lois
Defendant also claims that the evidence was inadmissible character
evidence. (Evid. Code, § 1101, subd. (a).) Because he did not raise this claim in
the trial court, he has forfeited it. (People v. Partida, supra, 37 Cal.4th 428, 435.)
Thornton’s house in Oceano, California, to interview her. Lois Thornton agreed to
help them find defendant.
On September 20, 1993, Sergeant Barnes learned that defendant had been
arrested, Stephanie C. recovered, and O’Sullivan’s vehicle found, all in Reno, and
that defendant had been apprehended while possessing a gun. Sergeant Barnes
flew to Reno and interviewed defendant for more than three hours. Defendant
admitted stealing O’Sullivan’s vehicle and kidnapping Stephanie C., but denied
killing O’Sullivan. He admitted brandishing a gun when he kidnapped
Stephanie C., but denied firing it, and also denied aiming it anywhere but at the
sky. Sergeant Barnes returned to Ventura County on September 21, 1993, without
On September 22, 1993, counsel representing defendant, who remained in
Nevada, told the Washoe County Justice Court that defendant, who was present in
court, was invoking his rights to counsel and to remain silent “as to this case”—
which was then an extradition proceeding—“and any other matter or cases or
charges that are filed or pending or yet to be filed or pending as provided for under
the 5th, 6th and 14th Amendments pursuant to Miranda v. Arizona and McNeil v.
Wisconsin.” At the same time, defendant’s counsel instructed defendant on the
record not to speak with “anybody” in Nevada or California except in counsel’s
presence, and defendant said he would follow that instruction.
On September 26, 1993, Sergeant Barnes flew back to Reno to escort
defendant back to Ventura County. On that same day, searchers located
O’Sullivan’s decomposed body in a remote section of Mulholland Drive in Los
Angeles County. Also on that day, before leaving for Reno, and before learning of
the searchers’ discovery, Sergeant Barnes arranged for Lois Thornton to speak
with defendant at the Ventura police station in a coordinated encounter soon after
defendant’s planned arrival time there in hopes of obtaining incriminating
statements from him. Sergeant Barnes had made these arrangements because,
despite not yet having found a body, his office continued to believe that defendant
had killed O’Sullivan.
Thus, on September 26, 1993, Ventura County Sheriff’s Deputy Susan
Creede drove unannounced to Lois Thornton’s house and offered to drive her to
the station to meet with defendant, and Lois Thornton agreed. The police recorded
and transcribed the conversation after advising Lois Thornton, but not defendant,
that they would be monitoring their dialogue. According to their testimony,
neither Sergeant Barnes nor Deputy Creede asked Lois Thornton to ask questions
for them or otherwise act on their behalf. Barnes testified he never told Lois
Thornton what to ask defendant, never made or tried to make an agreement
regarding what he wanted her to do, and did not consider her a law enforcement
agent. Lois Thornton, however, testified she believed Sergeant Barnes allowed her
the special benefit of a contact visit with defendant because he wanted, through
her efforts, to get information from defendant, and that her conversation with
defendant was “implemented by suggestions” from the officers.
As Lois Thornton was speaking with defendant, the police interrupted and
told her out of defendant’s hearing that a body had been located that appeared to
be O’Sullivan’s. This was information they had learned earlier that day, but they
withheld it from Lois Thornton until it appeared that mentioning it to her might
cause her to elicit more information from defendant. The police mentioned the
possibility that the body might contains bullets fired from defendant’s gun. Lois
Thornton testified that the police asked her to discuss the new information with
From the time of the police’s initial contact with Lois Thornton that day, she
was eager to learn as much as she could about the accusations against defendant.
As she was being driven home after speaking with defendant, she said that if he
was guilty of murder, she wanted the police to let her know. In addition, Sergeant
Barnes testified that defendant thanked him for arranging his grandmother’s visit.
The trial court denied the first motion, finding no constitutional violation “by
this obvious ploy of setting up the interview between the Defendant and his
grandmother . . . .” The court also denied the second motion, ruling that the
evidence had probative value regarding defendant’s state of mind and was relevant
as to deliberation and intent.
As noted, during the conversation with Lois Thornton, defendant denied the
murder, even as he commented to her, regarding O’Sullivan, “I don’t care about
her, I’m just tired.” He also made a number of comments that showed
consciousness of guilt of serious crimes, including fears of never leaving prison.
Arguing that Lois Thornton was manipulated into speaking with him,
defendant contends the court erred in admitting the evidence. He focuses on the
harm assertedly caused by introducing into evidence his extrajudicial statement
referring to the murder victim: “I don’t care about her, I’m just tired.” He argues
that during guilt phase closing argument the prosecution referred to this sentence
to impugn him as a calculating killer, and returned to his statement during the
penalty phase in support of a death sentence.
We find no Fifth, Sixth, or Fourteenth Amendment violation in the procedure
by which the police obtained defendant’s extrajudicial statements.
As is well-known, Miranda v. Arizona (1966) 384 U.S. 436 and its progeny
apply to exclude certain evidence obtained during custodial interrogation. (Rhode
Island v. Innis (1980) 446 U.S. 291, 297.) Innis explained that “the Miranda
safeguards come into play whenever a person in custody is subjected to either
express questioning or its functional equivalent. That is to say, the term
‘interrogation’ under Miranda refers not only to express questioning, but also to
any words or actions on the part of the police (other than those normally attendant
to arrest and custody) that the police should know are reasonably likely to elicit an
incriminating response from the suspect.” (Id. at pp. 300-301.)
Interrogation thus refers to questioning initiated by the police or its
functional equivalent, not voluntary conversation. (Rhode Island v. Innis, supra,
at pp. 298-300.) “ ‘Volunteered statements of any kind are not barred by the Fifth
Amendment . . . .’ ” (Id. at p. 300, quoting Miranda v. Arizona, supra, 384 U.S. at
p. 478.) The “functional equivalent” to express questioning involves police-
initiated deceptive techniques designed to persuade or coerce a criminal defendant
into making inculpatory statements. (Innis, supra, at p. 299.) The determination
of whether an action is reasonably likely to elicit an incriminating response
focuses primarily on the perceptions of the suspect, rather than the intent of the
police. (Id. at p. 301.)
In People v. Mayfield, supra, 14 Cal.4th 668, the defendant argued that “the
conduct of [a detective] in placing [the defendant’s father] in the interview room
alone with defendant was itself a form of custodial interrogation because it was
conduct that was ‘reasonably likely to elicit an incriminating response’ [citation]
from defendant.” (Id. at p. 758.) We rejected the argument “ ‘because it is clear
that defendant’s conversations with his own visitors are not the constitutional
equivalent of police interrogation.’ [Citations.]” (Ibid.) Defendant here raises the
same claim, asserting that the police conduct violated Miranda v. Arizona, supra,
384 U.S. 436, and Edwards v. Arizona (1981) 451 U.S. 477. We reject it for the
We acknowledge certain factual distinctions between Mayfield and this case.
In Mayfield we emphasized the defendant had “specifically and repeatedly asked
to be allowed to speak with his father,” whereas here the officers took the initiative
in offering to bring, and bringing, Lois Thornton to talk with defendant. (People v.
Mayfield, supra, 14 Cal.4th at p. 758.) In both cases, however, the defendants
voluntarily engaged in conversation with close relatives. Here, moreover, Lois
Thornton testified that she hoped her conversation with defendant would yield
evidence to exculpate, not incriminate, him, and that her main purpose in visiting
him was to provide emotional support. Defendant thanked Sergeant Barnes for
arranging the encounter. The factual difference between the ways in which the
conversations in Mayfield and this case were arranged do not compel a different
conclusion in this case. There was no improper persuasion or coercion.
Our determination that the conversation between defendant and Lois
Thornton did not constitute interrogation or its functional equivalent disposes of
defendant’s Fifth Amendment claim and obviates the need to address his related
contention that Lois Thornton was acting as an unwitting or implied police agent.
Defendant’s Sixth Amendment claim—that his right to counsel was violated
when the police to arranged to let his grandmother speak with him and thereby
obtain inculpatory statements—also lacks merit. To be sure, “In Massiah v. United
States (1964) 377 U.S. 201, the high court held that once a judicial proceeding has
been initiated against an accused and the Sixth Amendment right to counsel has
attached, any statement the government deliberately elicits from the accused in the
absence of counsel is inadmissible at trial against the defendant.” (People v.
Coffman & Marlow (2004) 34 Cal.4th 1, 66-67; see Massiah v. United States
(1964) 377 U.S. 201, 205-207; United States v. Gouveia (1984) 467 U.S. 180,
187.) The Massiah right, however, is offense-specific; that is, it applies only to
“ ‘offenses as to which adversary judicial criminal proceedings have been
initiated’ ” (People v. Slayton (2001) 26 Cal.4th 1076, 1079), such proceedings
including “ ‘formal charge, preliminary hearing, indictment, information, or
arraignment.’ ” (Texas v. Cobb (2002) 532 U.S. 162, 167-168.) Because
defendant had not been charged with any crimes stemming from his murder-
kidnapping-assault crime spree at the time of the conversation, he cannot
successfully invoke the Sixth Amendment guaranty. (Id. at p. 168.)
Next, defendant urges that permitting the introduction of his “I don’t care
about her” statement, referring to the murder victim, rendered the trial so
fundamentally unfair as to violate the due process clause of the Fourteenth
Amendment to the federal Constitution. We perceive no such unfairness. (See
People v. Sanders (1995) 11 Cal.4th 475, 554, fn. 35; People v. Ashmus (1991) 54
Cal.3d 932, 974-975, fn. 11.) We also see no abuse of discretion under Evidence
Code section 352 in admitting the evidence. (People v. Cox, supra, 30 Cal.4th
916, 955.) The trial court reasonably found that the statement was probative as
tending to show defendant’s deliberation and intent in committing the murder, and
that its probative value substantially outweighed its prejudicial effect.
on Special Circumstances
Defendant claims that a series of instructional errors led to erroneous true
findings on the special circumstances. We disagree.7
Defendant also argues that the purported instructional errors discussed in
this part had the additional legal consequences of violating various of his state and
federal constitutional rights. It appears that defendant’s instructional claims are
the kind that required no trial court action to allow us to consider them. (§ 1259
[claims of instructional error may be entertained for the first time on appeal if they
implicate a criminal defendant’s substantial rights].) In such a case, or elsewhere
when we discuss a situation in which defendant was required to take action below
to preserve a claim here and did so, forfeiture is not at issue. In addition, when in
this forum defendant makes constitutional arguments that do not invoke facts or
legal standards different from those the court itself was asked to apply but merely
assert that the court’s action or omission had the additional legal consequence of
violating the state or federal Constitution, his new constitutional arguments are not
forfeited on appeal. In the latter instance, of course, rejection on the merits of a
claim that the court erred on the issue actually before it necessarily leads to
rejection of the constitutional gloss presented for the first time on appeal. No
(Footnote continued on next page.)
a. Modified Version of CALJIC No. 8.80
Defendant’s first claim of error involves a modified version of CALJIC No.
8.80 (1990 rev.). The court instructed the jury:
“If you find the defendant in this case guilty of murder of the first degree,
you must then determine if one or more of the following special circumstances are
true or not true: robbery and/or kidnap.
“The People have the burden of proving the truth of a special circumstance.
If you have a reasonable doubt as to whether a special circumstance is true, you
must find it to be not true.
“Where the special circumstance is based on robbery and/or kidnap, intent to
kill need not be established as long as there is proof beyond a reasonable doubt
that the defendant was the actual killer and the victim was killed in furtherance of
the robbery or kidnap.
“You must decide separately each special circumstance alleged in this case.
If you cannot agree as to all of the special circumstances, but can agree as to one,
you must make your finding as to the one upon which you do agree.
“In order to find a special circumstance alleged in this case to be true or
untrue, you must agree unanimously.” (Italics added.)8
Defendant requested the third paragraph of the instruction. He now contends
that the language he proposed was confusing because it could allow the jury, if it
(Footnote continued from previous page.)
separate constitutional discussion is required in such a case, and we therefore
provide none. (See People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17.)
We quote from the written version of the instructions. The jury was
informed it would be given the written instructions to use during deliberations, and
nothing in the record suggests that did not occur.
found the intent to kill, to find the special circumstances true without finding the
killing was in furtherance of the underlying crime. Such a finding would be
incorrect insofar as it would omit the requirement that the killing be in furtherance
of an underlying crime, would result in an incorrect finding on both special
circumstances under the law at the time of the crimes (see § 190.2, former subd.
(a)(17) (i), (ii) as amended by Prop. 11, added by voters, Primary Elec. (June 6,
1990); People v. Riel (2000) 22 Cal.4th 1153, 1201); cf. § 190.2, subd. (a)(17)(M),
added by Stats. 1998, ch. 629, § 2; Prop. 18, approved by voters, Primary Elec.
(Mar. 7, 2000) [as of effective date of initiative, i.e., March 8, 2000, felony-
murder-kidnapping special circumstance no longer requires killing be in
furtherance of kidnapping as long as the defendant intended to kill]).
We first address respondent’s claim of invited error. Defense counsel sought
the instruction because he asserted it was “an exact quote” from People v.
Jennings (1988) 46 Cal.3d 963, 979, and People v. Pock (1993) 19 Cal.App.4th
1263, 1274. Counsel further asserted that the added paragraph would “give the
jurors some guidance. They get to know that the special circumstances is
something different than just felony murder, that . . . a murder was committed in
order to carry out or advance a commission of the crime . . . .” The trial court
agreed with defense counsel, disagreed with the prosecution’s objection that the
language would confuse the jury, and added the paragraph we have italicized here
to the instructions.
Although defense counsel exaggerated in stating the instructional language
was an “exact” quotation of the language of Jennings and Pock, it did convey the
essential holdings of those cases. Jennings stated, “A felony-murder special
circumstance is established even absent intent to kill, premeditation, or
deliberation, if there is proof beyond a reasonable doubt that the defendant
personally killed the victim in the commission or attempted commission of, and in
furtherance of, one of the felonies enumerated in subdivision (a)(17) of section
190.2.” (People v. Jennings, supra, 46 Cal.3d 963, 979.) Pock stated, “Where a
special circumstance is based upon one of the requisite felony-murder provisions,
intent to kill need not be established as long as there is proof beyond a reasonable
doubt that the person killed the victim in furtherance of the felony.” (People v.
Pock, supra, 19 Cal.App.4th 1263, 1274.)
“ ‘The doctrine of invited error bars a defendant from challenging an
instruction given by the trial court when the defendant has made a “conscious and
deliberate tactical choice” to “request” the instruction. [Citations.]’ ” (People v.
Weaver (2001) 26 Cal.4th 876, 970.) Accordingly, defendant may not complain
on appeal about the giving of the modified version of CALJIC No. 8.80.
Were we to address the merits, we would find no error. As noted, defendant
claims under California law that the instruction created ambiguity. When
presented with such a claim, we review the challenged language to inquire
whether there is a reasonable likelihood that the instruction caused the jury to
misconstrue or misapply the law. (People v. Clair (1992) 2 Cal.4th 629, 663.)
Doing so, we find no such reasonable likelihood. The instruction correctly stated
the law. (People v. Jennings, supra, 46 Cal.3d 963, 979; see People v. Dennis
(1998) 17 Cal.4th 468, 516.) It informed the jury that in the felony-murder
context, even if intent to kill was not established, the jury should nonetheless find
the special circumstance true if it found beyond a reasonable doubt that defendant
was the actual killer and that he killed in furtherance of the underlying crime.
Moreover, any possible confusion on the part of the jury was eliminated by the
giving of CALJIC No. 8.81.17 with respect to both the kidnapping and the
robbery special circumstances. That instruction informed the jury that to find the
special circumstance allegations true, it must find that the murder was committed
while the defendant was engaged in the commission or attempted commission of
the specified felony, or during the immediate flight thereafter, and was committed
in order to carry out or advance the commission of the crime, to facilitate the
escape therefrom, or to avoid detection, and that the special circumstance is not
established if the felony was merely incidental to the murder. The jury therefore
could not have found the special circumstances true had it not been persuaded
beyond a reasonable doubt that the murder was committed in furtherance of the
kidnapping and robbery. Defendant’s claim lacks merit.
b. Instructions on Consciousness of Guilt
Next, defendant contends that because he conceded guilt of felony murder,
disputing only the truth of the felony-murder special circumstances, it was error to
instruct the jury that it could consider the evidence of his false statements and his
attempts to hide evidence as showing consciousness of guilt. Defendant theorizes
that the instructions improperly allowed the jury to consider evidence of acts
showing consciousness of guilt as also amounting to evidence of his state of mind
at the time of the murder of O’Sullivan, i.e., that he killed her in furtherance of
robbery and kidnapping. Again, we disagree.
Preliminarily, we cannot accept defendant’s premise that because he
conceded his guilt of felony murder, as to homicide the trial should have been
limited to resolving the truth of the special circumstance allegations. In view of
defendant’s not guilty plea, the prosecution was required to prove beyond a
reasonable doubt each material fact of the crimes charged. “[T]he fact remained
that defendant did not plead guilty to any of the charges and the jury had before it
the issue of guilt on all charges.” (People v. Breaux (1991) 1 Cal.4th 281, 304; see
People v. Rowland (1992) 4 Cal.4th 238, 260.) Thus, the trial court was required
to instruct the jury on all issues.
The court gave the jury three instructions regarding consciousness of guilt.
First: “If you find that before this trial the defendant made a willfully false or
deliberately misleading statement concerning the crimes for which he is now being
tried, you may consider such statement as a circumstance tending to prove a
consciousness of guilt. However, such conduct is not sufficient by itself to prove
guilt, and its weight and significance, if any, are matters for your determination.”
(See CALJIC No. 2.03 (5th ed. 1988).) Second: “If you find that a defendant
attempted to suppress evidence against himself in any manner, such as by
destroying evidence or by concealing evidence, such attempt may be considered
by you as a circumstance tending to show a consciousness of guilt. However, such
conduct is not sufficient by itself to prove guilt, and its weight and significance, if
any, are matters for your consideration.” (See CALJIC No. 2.06 (5th ed. 1988).)
Third: “The flight of a person immediately after the commission of a crime, or
after he is accused of a crime, is not sufficient in itself to establish his guilt, but is
a fact which, if proved, may be considered by you in the light of all other proved
facts in deciding the question of his guilt or innocence. The weight to which such
circumstance is entitled is a matter for the jury to determine.” (See CALJIC No.
2.52 (5th ed. 1988).)
Defendant’s claim is without merit. “The cautionary nature of the
instructions [discussing CALJIC Nos. 2.03 and 2.06] benefits the defense,
admonishing the jury to circumspection regarding evidence that might otherwise
be considered decisively inculpatory.” (People v. Jackson (1994) 13 Cal.4th 1164,
1224.) Moreover, whenever the prosecution properly relies on evidence of
consciousness of guilt, relevant instructions must be given. (See People v. Turner
(1990) 50 Cal.3d 668, 694 [discussing CALJIC No. 2.52].) We have rejected
claims that consciousness-of-guilt instructions permit the trier of fact improperly
to draw inferences about a defendant’s state of mind. (People v. Bolin (1998) 18
Cal.4th 297, 327.)
Defendant further argues that because his identity was not at issue the
consciousness-of-guilt instructions were improper. He is incorrect. Instructions
on consciousness of guilt are proper not only when identity is at issue, but also
when “the accused admits some or all of the charged conduct, merely disputing its
criminal implications.” (People v. Turner, supra, 50 Cal.3d 668, 694, fn. 10
[discussing CALJIC No. 2.52 and addressing circumstances in which the
prosecution theorized defendant intentionally murdered and robbed, and defendant
admitted killing but claimed doing so in self-defense with no intent to kill, and
denied intending to steal from the victim].)
Also without merit is defendant’s complaint that the trial court erred in giving
his specially requested consciousness-of-guilt instruction only after modifying it
by adding the word necessarily. The court’s action resulted in the jury receiving
the following instruction: “As used in these instructions, consciousness of guilt
means consciousness of some wrongdoing, and does not necessarily refer to
consciousness of having committed the specific offenses charged.” This was an
accurate statement of the law. “ ‘A reasonable juror would understand
“consciousness of guilt” to mean “consciousness of some wrongdoing” rather than
“consciousness of having committed the specific offense charged.” ’ ” (People v.
Bolin, supra, 18 Cal.4th 297, 327.) But because “some wrongdoing” could
include a specific offense, the instruction, as modified by the court, accurately
stated the law. (Ibid.) But evidence of consciousness of guilt may be significant,
even if it is not sufficient to establish guilt, and must not be understood as being
tantamount to a confession to a specific crime. It may be evidence tending to
prove, in light of all of the evidence the trier of fact hears, that a criminal
defendant knew he or she committed a crime. Hence the court’s inclusion of the
word necessarily was proper.
Defendant also complains of the trial court’s refusal to give this special
instruction, which he requested: “The defendant’s consciousness of guilt, if any, is
relevant upon the questions of whether defendant was afraid of being apprehended
or whether the defendant thought he had committed a crime. Consciousness of
guilt may not be considered in determining the nature or the degree of the crime.”
(Italics added.) Defendant focuses on error he perceives in the court’s
unwillingness to provide the jury with the “nature or degree” language in the
italicized sentence. We recently rejected a similar claim (People v. Jurado (2006)
38 Cal.4th 72, 125), and see no reason to reconsider our view.
c. Instruction on Motive
Defendant next argues that the jury should not have been instructed, “Motive
is not an element of the crime charged and need not be shown.” (CALJIC No.
2.51 (5th ed. 1988).) He contends that the jury could have applied this rule to the
special circumstance allegations. We disagree. (People v. Edelbacher (1989) 47
Cal.3d 983, 1027; see also People v. Hillhouse (2002) 27 Cal.4th 469, 503-504.)
d. Instruction on Concurrence of Act and Intent
Defendant next argues that the following instruction was flawed because it
failed to refer to the special circumstance allegations: “In the crimes and
allegations charged in Counts 2, 3, 4, 8, 9, 10, 11, 12 and 13 there must exist a
union or joint operation of act or conduct and a certain specific intent in the mind
of the perpetrator,” and otherwise “the crime or allegation to which it relates is not
committed.” (See CALJIC No. 3.31 (1992 rev.).)
The special circumstance allegations were considered by the jury in
connection with count 1, the murder count, which the instruction did not list.
Defendant contends that the jury may have concluded that it need not consider
whether a union of act and intent was required to find the special circumstances
true. He is incorrect. To be sure, concurrence of act and intent is required to find
true a special circumstance allegation. (See People v. Dickey (2005) 35 Cal.4th
884, 904-905.) The instruction given to the jury said nothing about the crimes and
allegations charged in count 1, and, in light of a more specific instruction that
referred to count 1, we presume that the jury did not draw any conclusion about
count 1 from the modified version of CALJIC No. 3.31. The jury presumably
followed the specific instruction, under which it was instructed that to find the
special circumstance allegations true it must find: “The murder was committed in
order to carry out or advance the commission of the [underlying crime] or to
facilitate the escape therefrom or to avoid detection. In other words, the special
circumstance referred to in these instructions is not established if the [underlying
crime] was merely incidental to the commission of the murder.” (See CALJIC No.
8.81.17 (1991 rev.).) CALJIC No. 8.81.17 by itself made clear the required
concurrence of conduct and intent at the time of the capital crime. (See People v.
Rodrigues (1994) 8 Cal.4th 1060, 1144 [relying on the giving of CALJIC No.
8.81.17 and, with respect to the underlying crimes only, CALJIC No. 3.31].)
8. Instructions on Assault With a Deadly Weapon
Defendant argues that improperly given instructions lowered below the
beyond-a-reasonable-doubt standard the prosecution’s burden of proof on the
charge of assault with a firearm (§ 245, subd. (a)(2)), a general intent crime
(People v. Colantuono (1994) 7 Cal.4th 206, 214), on Linda C., Stephanie C.’s
mother. We disagree.
In addition to arguments we rejected in the previous section, defendant
argues that the trial court erred in giving circumstantial evidence instructions. He
maintains in essence that the court should have included sua sponte the assault
with a deadly weapon count when giving a version of CALJIC No. 2.02 but failed
to do so, omitting that count and instead, with regard to it, instructing on
circumstantial evidence with CALJIC No. 2.01.
“CALJIC No. 2.01 . . . instructs on the sufficiency of circumstantial evidence
to prove a defendant’s guilt,” whereas “CALJIC No. 2.02 . . . instructs more
specifically on the sufficiency of circumstantial evidence to prove a defendant’s
specific intent or mental state.” (People v. Rodrigues, supra, 8 Cal.4th 1060,
1141.) “[T]here is no need to give CALJIC No. 2.02 when the trial court gives a
more inclusive instruction based upon CALJIC No. 2.01, unless the only element
of the offense that rests substantially or entirely upon circumstantial evidence is
that of specific intent or mental state.” (People v. Hughes (2002) 27 Cal.4th 287,
Defendant asserts that, notwithstanding the first quoted part of Hughes, he
was entitled to a sua sponte instruction that included the assault with a deadly
weapon count in the CALJIC No. 2.02-based instruction due to the exact nature of
the evidence in this case. We need not resolve this question. “Because the trial
court delivered the more inclusive instruction under CALJIC No. 2.01, its refusal
to additionally instruct with CALJIC No. 2.02 was not prejudicial error.” (People
v. Rodrigues, supra, 8 Cal.4th 1060, 1142.)
B. Penalty Phase Issues
1. Testimony Regarding Defendant’s Burglary Adjudication
At the penalty phase, at defendant’s request, the court instructed the jury that
it could not consider his juvenile burglary adjudication as a felony conviction
aggravating factor (§ 190.3, factor (c)). The prosecution referred to the matter in
closing argument, telling the jury that the burglary could not be considered in
aggravation. Defendant maintains that this was a rhetorical device designed to
remind the jurors of the burglary even while ostensibly urging them not to
consider it. He contends that the prosecutor’s remarks show an additional
improper effect of the trial court’s guilt phase ruling permitting Michael L’Ecuyer,
the Ventura County probation officer, to testify that he was on probation for a
juvenile felony adjudication. The guilt phase ruling, in his view, caused a
violation of the Eighth and Fourteenth Amendments to the federal Constitution.
We discern no violation of defendant’s constitutional rights. The jury was
instructed not to consider the burglary in aggravation, and we assume that the jury
followed the instructions the trial court gave it. In addition, the jury was
instructed that the prosecution was relying on evidence solely of 16 enumerated
“criminal acts” in aggravation and that the jury “may not consider any evidence of
any other criminal activity as an aggravating circumstance.”
Even if the prosecutor’s remarks invited the jury to consider defendant’s
prior misconduct, the instructions would prevail. “We presume that jurors treat the
court’s instructions as a statement of the law by a judge, and the prosecutor’s
comments as words spoken by an advocate in an attempt to persuade.” (People v.
Clair, supra, 2 Cal.4th 629, 663, fn. 8.)
Playing Videotape to Jury
Defendant argues that the trial court erred in excluding as hearsay a
videotape that he wished to introduce in mitigation. As mentioned, defendant
introduced evidence at the penalty phase that he was classified as learning-
disabled during his school years. He wished to introduce into evidence and play
to the jury a videotape in which one Dr. Richard D. Lavoie (the record does not
reveal his profession) lectures on learning disabilities to what the prosecution
described as “a panel of persons consisting of such people as parents and school
The prosecution moved in writing to exclude the 70-minute-long videotape
as hearsay evidence. It explained to the trial court that in the recording “Dr.
Lavoie expresses some rather strong and arguably extreme view points in which
he contends in essence that learning disability kids are not taught appropriately or
[are] treated in a cruel, mean and insensitive manner by teachers . . . and states for
example that some of this type of conduct and treatment is in fact the norm. He
impersonates teachers to show how they are mean to learning disability children
(whether intentionally and/or unintentionally). [¶] He contends learning disability
children are taught by teachers who do not understand them or know how to deal
with their learning disability problems. [¶] . . . [¶] At the very end of the video
tape there are a few brief comments by others although the tape consists mostly of
his lectures and demonstrations to a panel of persons.”
The prosecution continued, “To present the video tape would be simply to
allow the defense to present a witness—Dr. Lavoie—to put forth some very
controversial opinions based on a number of extremely dubious assumptions.
(Apparently Dr. Lavoie believes that teachers of special education children do an
incompetent job in many or most, if not all, cases.)”
At a hearing on the prosecution’s motion, defendant replied that “we’re not
proposing to play the entire videotape, but there are about 30 minutes where [Dr.
Lavoie] gives examples of how some of the specific learning disabilities [cause the
afflicted person to] view a certain situation . . . and how that learning disability
makes it difficult for that person to perform in a classroom and what the reaction is
to that failure to perceive.” In defendant’s view, the jury would see “a
demonstration of a classroom-like situation with a person who . . . is made to
appear to have a learning disability” and the tape would not be hearsay any more
than, in place of having “an expert [testifying] . . . how a crane” functions “you . . .
have a videotape showing how a crane works.” Defendant argued that such a
demonstration is “not subject to cross-examination. It’s merely illustration. It
doesn’t give any kind of concrete information.” Without viewing the videotape,
the trial court ruled that its content was hearsay not subject to any exception, and
excluded it. Defendant maintains on appeal that the trial court erred, under state
evidentiary law and the Eighth and Fourteenth Amendments to the federal
Constitution, in excluding the evidence as hearsay.
Because “[a] party cannot argue the court erred in failing to conduct an
analysis it was not asked to conduct” (People v. Partida, supra, 37 Cal.4th 428,
435), the constitutional claims are, in all but one instance, forfeited. (Ibid.) The
sole exception is defendant’s due process claim, for it merely asserts that the trial
court’s ruling, insofar as wrong on grounds actually presented to that court, had
the additional legal consequence of violating the Constitution. To that extent,
defendant’s constitutional argument is not forfeited on appeal. (See id. at pp. 433-
We find no state law error, and no due process violation. Attempting to play
in court “assertions” and “descriptions” previously recorded on videotape or a
similar medium constitutes an attempt to introduce hearsay evidence. (People v.
Jurado, supra, 38 Cal.4th 72, 129; accord, People v. Monterroso (2004) 34 Cal.4th
743, 779.) The trial court did not need to view the recording, because defendant’s
own description of its content at the hearing on the prosecution’s motion
established that the statements and dramatizations therein were being offered for
the truth of the matter asserted (Evid. Code, § 1200, subd. (a))—they would
present Dr. Lavoie’s view of how learning-disabled students and the teachers of
such students tend to react in certain situations. As such, the videotaped content
was inadmissible. (Id., subd. (b).) Nor did defendant offer any possible exception
under which the content might be introduced—his example involving the
operation of a crane made plain that the videotape’s content would be a substitute
for testimony, but without any opportunity for cross-examination.
Defendant’s due process claim that the ruling denied him his constitutional
right to present a defense also lacks merit. Ordinarily a criminal defendant’s
attempt “to inflate garden-variety evidentiary questions into constitutional ones
[will prove] unpersuasive. ‘As a general matter, the “[a]pplication of the ordinary
rules of evidence . . . does not impermissibly infringe on a defendant’s right to
present a defense.” [Citations.] Although completely excluding evidence of an
accused’s defense theoretically could rise to this level, excluding defense evidence
on a minor or subsidiary point does not impair an accused’s due process right to
present a defense.’ ” (People v. Boyette (2002) 29 Cal.4th 381, 427-428.)
There was no constitutional violation here. The videotape would have been
hearsay not subject to cross-examination in violation of the Evidence Code. The
court’s ruling did not prevent defendant from presenting evidence consistent with
the normal rules of evidence through live witnesses who are subject to cross-
3. Excluding Other Items of Proposed Mitigating Evidence
Defendant claims that the trial court erred under state law and acted
unconstitutionally by ruling against defendant on several occasions in which he
sought to introduce mitigating evidence. He did not invoke constitutional
guaranties at trial and has forfeited his constitutional claims (People v. Partida,
supra, 37 Cal.4th 428, 435) on appeal, except for his due process claim (id. at pp.
We turn to each item of evidence at issue.
a. Steve Miller’s Alleged Drug Use and Violent Reputation
The trial court sustained, on relevance grounds, the prosecutor’s objections to
questions about the types of drugs Steve Miller abused and Miller’s reputation for
violence. As will be recalled, Miller was defendant’s biological father. Miller
died when defendant was four years old, having seen little of him since his birth.
There was little connection between the two individuals.
Defendant’s mother testified that Miller abused drugs. She was describing
conduct that Miller apparently engaged in before defendant’s birth. Defense
counsel inquired, “What types of drugs was Steve taking while you were dating
him?” The prosecution objected to the question on relevance grounds, and the
trial court sustained the objection.
We review a trial court’s ruling excluding evidence on grounds of irrelevance
(Evid. Code, § 350) for abuse of discretion. “The trial court has broad discretion
in determining the relevance of evidence [citations] but lacks discretion to admit
irrelevant evidence.” (People v. Carter (2005) 36 Cal.4th 1114, 1166-1167.) The
court acted within its discretion in concluding that evidence of the precise nature
of the substances consumed, apparently before defendant’s birth, by a figure who
played essentially no role in defendant’s upbringing, did not have “any tendency
in reason to prove or disprove any disputed fact that is of consequence to the
determination of the action” (Evid. Code, § 210); i.e., it was irrelevant to the
sentence that defendant should receive. Excluding irrelevant evidence did not
deprive defendant of his right to present a defense. (See People v. Lewis and
Oliver (2006) 39 Cal.4th 970, 996-997.)
We turn to defendant’s next claim, regarding exclusion of reputation
evidence. Danny Montgomery testified briefly for the defense. He stated that he
worked in a bar in his late teens, and met Markita Thornton, defendant’s mother,
who worked for the same employer as a coat-checker. She was about two years
younger than Montgomery. Montgomery testified that he would acquire illegal
drugs and provide one type, “reds,” to Markita Thornton. Defense counsel asked
Montgomery if he had ever met Steve Miller, and he replied no. Counsel then
asked, “Did you know him by reputation?” and Montgomery replied yes. Counsel
asked, “What was his reputation?” The prosecution objected on grounds of
relevance and hearsay. The trial court noted that Miller was not a party or a
witness and sustained the objection on relevance grounds.
On appeal, defendant argues that the question did not call for irrelevant
evidence. Respondent comments that the question was vague and, although the
jury already knew that Miller had been a violent man, counsel could have been
seeking an answer based on Miller’s reputation for anything.
Defendant’s claim is without merit. The trial court did not abuse its
discretion in sustaining the objection, nor was there any due process violation. As
stated, the links between defendant and Miller were attenuated—defendant had
seldom met his biological father, their approximately seven encounters occurred
when defendant was very young, and Miller died when defendant was four. In
essence, defendant had no ties to Miller. Under those circumstances, the court
could reasonably rule that Miller’s reputation in the community was not relevant
to the penalty that defendant should receive.
b. Psychiatrist’s Report to an Attorney That Defendant Had An
Attention Deficit Disorder
Defendant claims that the trial court erred in sustaining the prosecution’s
objection to evidence in a psychiatrist’s report that his mother was aware, from the
time defendant was a young child, that he had been diagnosed with an attention
As noted, a psychiatrist, Dr. Jacks, treated defendant following a dog bite.
Dr. Jacks’s treatment lasted for a year and a half and began in January of 1980.
Dr. Jacks diagnosed defendant with, among other syndromes, ADHD. On two
occasions in September of 1981, soon after discontinuing treatment with Dr. Jacks,
defendant saw another psychiatrist, Robert A. Solow, M.D., who was deceased at
the time of trial. On September 25, 1981, Dr. Solow wrote a diagnostic report to
an attorney in which he opined that defendant “did suffer a post-traumatic stress
disorder after being bitten by the dog. . . . [¶] It is my opinion that this condition
has become ameliorated so that Mark at the present time has returned to his basic
pre-morbid personality and condition which probably was an attention deficit
Defense counsel attempted to have Markita Thornton, defendant’s mother,
testify about the content of Dr. Solow’s report, which the witness had in her hand
in the witness chair.9 The prosecution objected without stating a basis. Defense
counsel interpreted the objection as resting on hearsay grounds and argued that the
Defense counsel questioned Markita Thornton as follows:
“When Mark [defendant] was seeing Dr. Jacks in 1980, did Dr. Jacks tell
you that he felt Mark was having significant emotional problems?
“Did he also tell you that he felt Mark had a[n] attention deficit disorder?
“Yes, he did.
“Did he inform the school of that?
“I told them he had problems. I had it in reports that I had given to them, I
“And did Mark also see Dr. Solow in regard to the dog bite in 1981?
“And did Dr. Solow give you a report?
“Yes, he did.
“And did you give that report to us . . . ?
“Yes, I did.
[¶] . . . [¶]
“And on page 8 at the bottom, does it refer to attention deficit in the report?
[The prosecutor]: Objection to the report being read in court.”
report was not being offered for the truth of the allegation that defendant had a
psychological impairment in 1981, but rather for the witness’s state of mind, i.e.,
Markita Thornton’s knowledge of the report’s content. “I’m not offering this for
the truth that he had attention deficit, merely that she was aware of that and the
school should have been aware of it as well,” counsel explained. In other words,
counsel intended to offer evidence to buttress the defense theory, which would
later be fleshed out through the testimony of Carol Horwich Luber, that many of
defendant’s problems stemmed from inadequate attention the school paid to his
needs during his formative years. Counsel offered to accept a limiting instruction
to the jury that it was not to consider the report’s contents as evidence that
defendant had an attention deficit disorder in 1981.
The trial court asked what the relevance of the evidence would be if it were
not offered for the truth of its contents, and defense counsel again stated the
question was meant to adduce evidence of the witness’s state of mind, i.e., she had
been alerted to the psychiatrist’s conclusion that her son had a psychological
problem. Ultimately, the court sustained the objection, without specifying the
“ ‘ “Whenever an utterance is offered to evidence the state of mind which
ensued in another person in consequence of the utterance, it is obvious that no
assertive or testimonial use is sought to be made of it, and the utterance is
therefore admissible, so far as the Hearsay rule is concerned.” ’ ” (People v.
Duran (1976) 16 Cal.3d 282, 295, italics omitted.) Such evidence is not hearsay.
(People v. Lo Cicero (1969) 71 Cal.2d 1186, 1189-1190.) But the trial court was
concerned with more than hearsay. It asked about relevance and did not specify
the ground on which it ruled. On this record, it is more likely that it ruled on the
basis of the proffered evidence’s relevance than on its hearsay or nonhearsay
character. The court’s question was directed to the evidence’s relevance, and the
court did not ask about or mention hearsay.
The trial court did not abuse its discretion in excluding the evidence. (People
v. Carter, supra, 36 Cal.4th 1114, 1166-1167.) Defendant had already presented
evidence that his mother, on learning of Dr. Jacks’s evaluation of him, knew of his
attention deficit disorder (and had alerted defendant’s school). Once the evidence
that Dr. Jacks had alerted her to defendant’s infirmity was introduced, further
testimony that the report of another psychiatrist, Dr. Solow, later alerted Markita
Thornton to defendant’s condition would not have been “of consequence to the
determination of the action” (Evid. Code, § 210.)
c. Evidence Defendant’s Stepfather Beat His Mother Outside
Defendant claims that the trial court erred in sustaining, on relevance
grounds, the prosecution’s objections to evidence that his stepfather, Pierre
Sarrazin, struck Markita Thornton, his mother, on occasions when defendant was
not present, allowing evidence only of the incidents when he was present.
Sarrazin, Markita Thornton’s husband at the time of trial, was called as
defendant’s witness. He testified that he hit Markita Thornton on five distinct
occasions. Defense counsel asked about the second occasion on which the
violence occurred, and the prosecution objected on grounds of lack of foundation
and irrelevance. The prosecutor explained that defendant was not present at the
time. The trial court agreed that under those circumstances the evidence was
irrelevant and sustained the objection on that ground. It rejected defense counsel’s
argument that in her opinion spousal abuse affects children in a household who are
being raised there whether or not they are aware of particular incidents. Shortly
afterward, the court sustained a relevance objection to another question that asked
Sarrazin about a hitting episode when defendant was home but did not hear or see
it. It rejected defense counsel’s argument that, also in her opinion, an incident of
spousal abuse affects children who are home at the time regardless of whether they
Despite these two rulings, defendant was able to introduce considerable
evidence of Sarrazin’s violence toward Markita Thornton. Sarrazin candidly
described two of the five incidents in detail and explained that they arose from
disputes over drugs. He also testified about a third incident without prosecution
objection even though the record is not clear that defendant was present. Sarrazin
also admitted striking defendant on one occasion when defendant was 17 years
Defendant argues that the excluded evidence of the two incidents was
relevant because such episodes generate negative effects on a child whether or not
the child observes them. “ ‘Studies show that violence by one parent against
another harms children even if they do not witness it.’ ” (In re Sylvia R. (1997) 55
Cal.App.4th 559, 562, quoting Fields, The Impact of Spouse Abuse on Children
and Its Relevance In Custody and Visitation Decisions in New York State (1994) 3
Cornell J.L. & Pub. Poly. 221, 228.) At trial, however, defendant presented no
independent authority for the view he now expresses. Counsel simply ventured
her own opinion that living in a household in which abuse occurred affected
defendant even if he did not observe it, and even if he was not in the house at the
time. Counsel made no offer of proof, did not attempt to lay any factual
foundation for the view she expressed, and was not speaking on a subject on
which judicial notice could be taken. This was insufficient to establish the
relevance of the evidence. The trial court was not required to accept counsel’s
mere speculation about the psychological consequences of spousal violence in
ruling on the proffered evidence’s relevance. (See People v. Diaz (1992) 3 Cal.4th
495, 552 (lead opn. of Kennard, J.); accord, id. at pp. 576-577 (conc. opn. of
Panelli, J.); People v. Medina (1990) 51 Cal.3d 870, 890.) We find no abuse of
d. Opinion of Defendant’s Pediatrician Regarding Canada Trip
Defendant claims that the trial court erred in sustaining, on relevance
grounds, the prosecution’s objections to the testimony of his pediatrician that his
academic development was set back by a long trip to Canada the family took when
he was in fifth grade, causing him to leave school on March 31, 1986.
As described, defendant’s pediatrician, Carter R. Wright, M.D., testified on
defendant’s behalf, explaining that defendant would not breast-feed and failed to
gain weight normally. Undertaking direct examination of Dr. Wright on later
events in defendant’s life, defense counsel asked broadly, “What were you[r]
impression[s]?” about the then-pending trip to Canada and, more narrowly, “Did
you have some sense of whether . . . this was a well-planned out trip to Canada?”
and “Did Markita tell you whether she was planning to stay in Canada or just
visit?” The prosecutor objected to all three questions on the ground that they were
irrelevant and did not call for a medical opinion. He also objected to the third
question on hearsay grounds. After the third question, the trial court asked counsel
for the purpose of the proffered testimony. Defense counsel argued that the
questions called for admissible testimony about “his observation of the . . .
instability in the family and this plan that they had.” The court, which had already
sustained objections to the first two questions, sustained the objection to the third
as well. It appears that the court’s rulings were based on the irrelevance of the
On appeal, defendant states that he intended to prove that the trip to Canada
disrupted his education and harmed his later performance in school, setbacks that
could have generated sympathy among the jurors. He argues that the testimony
would have been admissible as an expert medical opinion and a proper lay
opinion, and that it was relevant as mitigating evidence.
Defendant’s claim that the trial court improperly failed to allow Dr. Wright’s
expert medical testimony is without merit. “If a witness is testifying as an expert,
his testimony in the form of an opinion is limited to such an opinion as is: [¶] (a)
Related to a subject that is sufficiently beyond common experience that the
opinion of an expert would assist the trier of fact.” (Evid. Code, § 801.)
Counsel’s questions of Dr. Wright did not call for a expert opinion. Counsel asked
Dr. Wright about his “impressions” and his “sense” about the pending trip to
Canada, and explained to the court that counsel was seeking Dr. Wright’s
“observation.” These questions were not directed toward medical expertise.
Accordingly, the trial court did not abuse its discretion (see People v. Pollock
(2004) 32 Cal.4th 1153, 1172) in ruling that the questions did not call for a expert
Nor did the trial court abuse its discretion (People v. Carter, supra, 36
Cal.4th 1114, 1166-1167) in ruling that the questions were irrelevant insofar as
they called for Dr. Wright’s lay opinion, i.e., the answers would not have been
“helpful to a clear understanding of his testimony” (Evid. Code, § 800), and would
not have had “any tendency in reason to prove or disprove any disputed fact that is
of consequence to the determination of the action” (Evid. Code, § 210). As a lay
witness, testimony from Dr. Wright that a trip to Canada must have been
disruptive to defendant’s educational development would have amounted to little
more than conjecture, and would not have been helpful to understand his
testimony about defendant’s childhood difficulties. We cannot say that the court
was unreasonable in concluding that counsel’s questions called for irrelevant
answers. We find no basis to disturb its rulings.
e. Erika S.’s Correspondence
Defendant claims that the trial court erred in sustaining, on grounds of
cumulativeness, the prosecution’s objection to the introduction of a number of
letters Erika S. wrote to him.
As noted, in cross-examining Erika S. at the guilt phase, defendant elicited
testimony that their relationship was affectionate as well as tumultuous. The jury
saw photographic evidence of this and heard passages from two love letters
Erika S. sent to defendant. The two letters were received into evidence. Erika S.
also testified that at the time she wrote them she was passionate about defendant.
During the penalty phase, defendant sought to introduce into evidence 17
love letters written by Erika S., 16 of them to him and one to a third party named
Russell in which she said she thought defendant was attractive. The prosecutor
objected, arguing that the letters were “cumulative evidence on a nonissue”; “it’s a
nonissue that she loved him.” The prosecutor clarified thereafter that his objection
regarding the letters to defendant rested on cumulativeness (see Evid. Code,
§ 352); the objection to the letter to Russell rested on relevance (id., § 350).
Defense counsel noted that the jury had heard evidence of defendant’s violent and
threatening conduct toward Erika S. around the time of the high school
homecoming dance of October 10, 1992, and said that counsel wanted to remind
the jury of the context of the relationship. The court asked, “Hasn’t she stated all
this on the stand already?” and counsel conceded that the witness had, but argued
in effect that the letters would flesh out the testimony. The court excluded the
letters as cumulative in light of Erika S.’s prior testimony.
On appeal, defendant contends the court erred in excluding the letters.
However, we will normally not second guess a trial court’s ruling under Evidence
Code section 352. (People v. Valdez (2004) 32 Cal.4th 73, 109.) In light of Erika
S.’s own testimony, the trial court could reasonably have excluded the letters as
Defendant also argues that the trial court should not be permitted to rule
against admitting the love letters simply because the prosecution said it did not
dispute the evidence (and presumably would be willing to stipulate) that Erika S.
loved him. (See Old Chief v. United States (1997) 519 U.S. 172, 186-189.)
However, the court did not do so. It excluded the evidence solely on the ground
that the evidence was cumulative under Evidence Code section 352.
Markita Thornton’s Suicide Attempt Shortly Before the Crimes
Defendant claims that the trial court erred in sustaining, on relevance
grounds, the prosecution’s objections to the testimony of Sydnie Goldfarb that
defendant’s sister Chantal was upset by their mother’s suicide attempt. In April
1993, about five months before defendant committed his crimes, his mother,
Markita Thornton, attempted suicide. Sydnie Goldfarb, an acquaintance who was
studying to become a marriage and family counselor, went to defendant’s house
and found defendant crying and his sister distraught.
Defendant asserts error because the jury was not allowed to learn whether
Chantal was upset by Markita Thornton’s suicide attempt. The court permitted the
witness to testify that defendant was “very distraught and he was crying,” but it
sustained a relevance objection to a question whether Chantal was also upset. We
see no abuse of discretion. (People v. Carter, supra, 36 Cal.4th 1114, 1166-1167.)
The court’s ruling that it was irrelevant whether Chantal was upset by Markita
Thornton’s suicide attempt did not fall outside the bounds of reason. We cannot
say the court was unreasonable in concluding that the emotional impact of the
suicide attempt on someone other than defendant was not “of consequence.”
(Evid. Code, § 210.)
Defendant also claims error in the trial court’s sustaining objections on
relevance grounds to questions about (1) where Sydnie Goldfarb took Chantal
following the suicide attempt, and (2) Chantal’s whereabouts when the police
arrived in response to the attempt. We find these rulings also within the court’s
discretion. We cannot say that the court was unreasonable in concluding that
where Goldfarb may have taken Chantal and Chantal’s exact location (the jury
already knew she was present) when the police arrived following the suicide
attempt was not “of consequence” to the sentence defendant should receive for
murdering Kellie O’Sullivan.
g. Defendant’s Requests that the Siy Family Adopt Him
Defendant claims that the trial court erred in sustaining, on relevance
grounds, the prosecution’s objection to a question defense counsel put to Berta Siy
about her response to defendant’s request that the Siy family adopt him. As noted,
when defendant was 16 years old and in tenth grade, he lived with the family of
Berta Siy on weekdays in order to be eligible to spend the 1990-1991 academic
year at Hoover High School. He liked the Siys and asked the Siy family to adopt
On direct examination, defense counsel established the fondness of the Siy
family and defendant for each other. The trial court sustained an objection to a
question about Berta Siy’s response to defendant’s request to be adopted by the
“Were you ever asked by Mark [defendant] to adopt him?
“Yes, he did couple times.
“What was your response?
“[The prosecutor]: Irrelevant.
“THE COURT: Sustained.”
“BY [defense counsel]: Did you ever talk to the parents about that?
“I wish I could have adopted him then. I’m sorry.
“It’s all right. It’s okay. [¶] Are you all right, Mrs. Siy?”
The question whether the trial court abused its discretion in this instance is
close. Plainly, defense counsel was trying to elicit from the witness whether the
Siy family was unable or unwilling to adopt defendant when he asked. But we
need not decide the question. In light of the witness’s follow-up statement that she
wished she could have adopted him them, and the rest of her testimony, we find no
prejudice in this narrow ruling. Excluding the evidence did not appreciably
weaken defendant’s case in mitigation. Through the substance of Berta Siy’s
testimony and her apparently tearful demeanor on the stand, defendant and the Siy
family’s fondness for each other was apparent, and we discern no reasonable
possibility of a different sentence if she had been allowed to answer the question.
(People v. Rogers (2006) 39 Cal.4th 826, 901.)
Defendant also claims that the ruling denied him his constitutional right to
present a defense. We disagree. The complete exclusion of defense evidence
could “ ‘theoretically could rise to [the] level’ ” (People v. Boyette, supra, 29
Cal.4th 381, 428) of a due process violation. But short of a total preclusion of
defendant’s ability to present a mitigating case to the trier of fact, no due process
violation occurs; even “ ‘[i]f the trial court misstepped, “[its] ruling was an error
of law merely; there was no refusal to allow [defendant] to present a defense, but
only a rejection of some evidence concerning the defense.” ’ ” (Ibid.) Limiting
Berta Siy’s testimony in this minor fashion, even if an abuse of discretion under
state law, fell well short of constituting a due process violation.
h. Family Friend’s Concerns About Defendant’s Welfare
Defendant claims that the trial court erred in sustaining, on relevance
grounds, the prosecution’s objection to a question he put to a family friend, Paul
Roelen, whether he was concerned about defendant’s welfare based on his
knowledge of conditions in defendant’s household in early 1993. Witnesses
testified at the penalty phase that defendant’s home life was difficult. Roelen
testified that defendant had no bed or bedroom and slept on the floor. He also
testified about the unpleasant conditions in defendant’s residence: Pierre Sarrazin
was arrogant, drug usage was rife, defendant and his sister had to tend to their own
welfare, and life in the house was generally chaotic and tense. During a brief
redirect examination, defense counsel asked, “Based upon your time there at the
Sarrazin house and your observations, were you concerned about Mark
[defendant]?” When the prosecutor objected on relevance grounds, the trial court
sustained the objection.
On appeal, defendant argues that the evidence was relevant lay opinion
testimony. We disagree. The trial court did not abuse its discretion (People v.
Carter, supra, 36 Cal.4th 1114, 1166-1167) in ruling that the question was
irrelevant. It could reasonably rule that inasmuch as it called for Roelen’s lay
opinion, the answer would not have been “helpful to a clear understanding of his
testimony” (Evid. Code, § 800). The jury had just heard Roelen’s testimony about
conditions in defendant’s house in 1993. His testimony was clear and detailed,
and there was no need to elicit an opinion to clarify testimony that was already
perfectly understandable to the trier of fact.
Defendant contends that the cumulative effect of the trial court’s rulings
sustaining the prosecutor’s objections to his proffered mitigating evidence was
prejudicial. However, we have found only one assumed error—sustaining an
objection to a question about Berta Siy’s response to defendant’s request to be
adopted by the Siys. We have found no prejudice from that single ruling.
Accordingly, there was no error to cumulate.
j. Factor (k) Claim
Defendant claims as an additional legal consequence that the rulings violated
his right to present mitigating evidence. This right, however, does not trump or
override the ordinary rules of evidence. (See People v. Brown, supra, 31 Cal.4th
518, 577 [as a constitutional matter, trial courts retain authority to exclude
evidence that has no bearing on a defendant’s character or record or the
circumstances of the offense].) As already explained, any error in sustaining the
single question about Berta Siy’s response to defendant’s request to be adopted
Defendant maintains that the prosecutor engaged in misconduct at the penalty
phase. We disagree.
In almost all instances, defendant did not object at trial to the misconduct he
perceives on appeal. A defendant may not complain on appeal of prosecutorial
misconduct unless in a timely fashion, and on the same ground, the defendant
objected to the action and also requested that the jury be admonished to disregard
the perceived impropriety. (People v. Ayala, supra, 23 Cal.4th 225, 284.) In this
case, a timely objection and request for admonition would have cured any
resulting harm. (See People v. Farnam (2002) 28 Cal.4th 107, 167.) Defendant’s
claims regarding the conduct he did not object to at trial are therefore forfeited on
appeal. Exceptions will be noted below.
We also see no misconduct. Most of defendant’s contentions relate to closing
argument. At that stage, prosecutors have wide latitude to discuss and draw
inferences from the evidence presented at trial. “ ‘Whether the inferences the
prosecutor draws are reasonable is for the jury to decide.’ ” (People v. Wilson
(2005) 36 Cal.4th 309, 337.) The prosecutor stayed within proper bounds.
Defendant also raises one complaint regarding the prosecutor’s presentation of
evidence. We turn to each contention.
a. Remarks on Defendant’s Learning and Emotional Difficulties
Defendant complains that the prosecutor should have argued he was deserving
of death despite his learning disabilities and emotional and psychological
problems, rather than choosing to dispute the existence of these disabilities and
“relying on disinformation and ridicule to distract from the reality and allow the jury
to get off the moral hook of voting to execute a troubled young man . . . .”
Defendant contends the prosecutor used “questionable expert testimony” and
“belittl[ed] the whole idea of learning disabilities.”
The claims are meritless. Defendant overlooks the prosecutor’s role at the
penalty phase, which includes inviting the jury to draw the inferences most
favorable to his position within the limits set by the evidence. Prosecutors may
attack the defense case and argument. “Doing so is proper and is, indeed, the
essence of advocacy.” (People v. Smith, supra, 30 Cal.4th at p. 635.) As
described, defendant presented evidence of his psychological impairments in
mitigation. The prosecutor was within his rights to present evidence and argument
that defendant’s evidence did not accurately portray his condition. (See People v.
Maury (2003) 30 Cal.4th 342, 420 [jury is entitled to consider sympathy, but is not
required to do so, and a prosecutor may argue that the facts do not warrant it];
People v. Farnam, supra, 28 Cal.4th 107, 171 [prosecutor has wide latitude to
rebut and argue against the defense case].)
Defendant characterizes the testimony of a prosecution expert, Linda Calvin,
as “questionable,” pointing to the fee paid to her as evidence that the prosecution
purchased her research results. As described, Calvin testified there was no
conclusive evidence that defendant suffered from attention deficit disorder or
ADHD, that if he had a learning disorder, it was mild to moderate, and that he
possessed average intelligence. The prosecution was entitled to present Calvin’s
testimony to refute defendant’s mitigating evidence of his cognitive and emotional
impairments. In turn, of course, defendant was entitled to cross-examine Calvin
and argue against her, attacking her credibility and the weight to be given her
Defendant contends that the prosecutor committed misconduct in suggesting
that defendant was relying on an “abuse excuse” and in ridiculing the bureaucratic
jargon of the educational establishment. The record shows that the prosecutor was
scorning what he argued was school officials’ predilection for euphemisms—
obtuse phraseology masking their unwillingness to grapple with the reality of
serious student misconduct. The prosecutor’s remarks were well within the
bounds of acceptable comment based upon the evidence, given that defendant was
asking the jury to mitigate his penalty based on his personal history. “ ‘The
prosecutor is permitted to urge, in colorful terms, that defense witnesses are not
entitled to credence.’ ” (People v. Boyette, supra, 29 Cal.4th 381, 433; see also
People v. Maury, supra, 30 Cal.4th 342, 420.)
Defendant contends that the prosecutor committed misconduct by engaging
in sarcasm and snide comments to belittle his case. He notes in particular the
prosecution’s disparaging characterization of section 190.3, factor (k), as a law
that permits a criminal defendant to present any possible excuses for his conduct
and the prosecutor’s comments generally that the mitigation case was deficient and
inconsistent with the tenets of a civilized society.
These claims are unpersuasive. As noted, the prosecution is entitled to argue
that the facts presented by a defendant at the penalty phase of a death penalty case
do not warrant sympathy. As in People v. Maury, supra, 30 Cal.4th 342, 420, the
prosecutor did not tell the jury it could not consider sympathy for defendant—in
fact he said it could—but instead urged, as he was entitled to do, that the defense
evidence did not call for the extension of mercy to defendant as a result of that
c. Alleged Appeal to Political Prejudices
Defendant draws our attention to two comments that he asserts were
improper appeals to jurors’ “conservative political prejudices.” An educational
consultant, Carol Horwich Luber, testified that the school system failed to provide
specialized services that would have made defendant “a much more successful
student in elementary, junior high and high school.” Defendant contends that the
prosecutor committed misconduct in describing Luber’s testimony as unduly
critical of the school system. The prosecutor argued that she was probably a
professional complainer, a “pain in the neck” who would demand that the system
follow her preferred course of action and might sue if it did not. Second, the
prosecutor argued in effect that defendant was a layabout who had spurned work
opportunities and instead had been receiving support from the state and a private
charity before he committed the capital crime.
As stated, “ ‘[t]he prosecutor is permitted to urge, in colorful terms, that
defense witnesses are not entitled to credence.’ ” (People v. Boyette, supra, 29
Cal.4th 381, 433.) The comment relating to Luber was colorful but not improper.
The prosecutor’s argument that defendant had squandered opportunities in
his short life before committing the capital crime also was not misconduct. He
fairly pointed out that defendant’s story was not limited to his childhood and
adolescent difficulties; defendant had received help and opportunities from his
family, counselors, and society in the form of employment, money, and food.
d. Alleged Appeal To Regional Prejudices
In closing argument, defendant told the jury that the two “Hillside Strangler”
murderers had avoided the death penalty and urged that he was not as bad as they.
He argues that the prosecutor committed misconduct during rebuttal argument,
when he argued that to the extent the jurors were unfamiliar with the evidence in
that case, the comparison was inapposite, and further suggested that the county in
which the “Hillside Strangler” murderers were tried might have had an effect on
the determination of their sentence. There was no misconduct, but only fair
argument in response to defendant’s invocation of the “Hillside Strangler” case in
support of a life sentence. (People v. Farnam, supra, 28 Cal.4th 107, 171.)
Defendant next contends the prosecutor engaged in misconduct by
overemphasizing what defendant views as evidence of trivial and typical
adolescent misbehavior. In particular, defendant refers to the prosecutor’s focus
on instances of his misconduct in high school in the prosecution’s rebuttal case.
As noted, defendant taunted one physically handicapped classmate and another
student with a hygiene problem, and encouraged other students to do the same.
Defendant first complains that the prosecutor should not have introduced the
rebuttal evidence. With regard to the evidence of taunting the handicapped
student, defendant raised objections at trial on unrelated evidentiary grounds, but
not on the ground that the prosecutor was committing misconduct. With regard to
the testimony regarding the student with the hygiene problem, defendant
interposed no objection on any ground. He has not preserved his claims for
review. (People v. Partida, supra, 37 Cal.4th 428, 435)
Defendant next complains that the prosecutor should not have emphasized
his adolescent misconduct at closing argument. In his view, the misconduct was
so trivial that to bring it to bear on the question whether he should live or die was
unseemly. Again, however, he failed to seek a remedy at trial, and has not
preserved the claims for review. (People v. Ayala, supra, 23 Cal.4th 225, 284.)
Defendant’s contentions also fail on their merits.
With regard to the presentation of evidence: defendant had presented a
thorough case that he was, in effect, a victim of a substandard upbringing, neglect
by school officials, and psychological difficulties—in sum, not fully in command
of himself—and thus his behavior was not as blameworthy as it would have been
in the case of someone who had not been similarly disadvantaged. He also
presented evidence of his positive personal qualities, in the form of Berta Siy’s
statement that he had been and was still a nice person.
In light of the defense presentation, the prosecutor was entitled to introduce
evidence in rebuttal that defendant was cruel and callous toward others in varied
situations, suggesting that intrinsic evil rather than external circumstances out of
defendant’s control predominated in governing his behavior or was the sole cause
of it. (See In re Lucas (2004) 33 Cal.4th 682, 719 [suggesting that to rebut
“evidence of institutional failure and positive character traits,” the prosecution
could introduce evidence “that from a very early age, petitioner demonstrated lack
of conscience, a propensity for violence, and defiance of authority that did not
respond to psychotherapy and that he committed criminal offenses as a juvenile,
was subject to temper tantrums and uncontrollable rages as a child, was
destructive, and sought only to please himself”].) With regard to argument, as
noted, it is the prosecutor’s role to question the soundness of a defense case, and
he did not engage in misconduct by giving the jury a more nuanced view of what
mitigating weight should be given to defendant’s social history, learning
disabilities, and emotional problems. (See People v. Smith, supra, 30 Cal.4th 581,
f. Alleged Logical Fallacies and Illogical Argument
Defendant identifies specific portions of the prosecutor’s closing argument as
constituting misconduct because they contained logical fallacies, such as
nonsequiturs, or made no logical sense. He argues that these lapses were
deliberate and calculated. Specifically, defendant complains that (1) because
evidence about his difficult birth and his mother’s prenatal drug use related to
whether he was mentally impaired, the prosecutor argued improperly when he
contended that what happened before defendant was born did not weigh on his
blameworthiness for his crimes; (2) because evidence was presented that babies
who fail to thrive early in life may have long-term learning and behavior
problems, the prosecutor improperly argued that defendant’s failure to thrive
during the first six months was insignificant as defendant could have no memory
of it; (3) because evidence was presented that defendant was a disfavored stepchild
and suffered learning disabilities, the prosecutor improperly argued that the
defense’s failure to present evidence that defendant’s half-sister, Chantal, suffered
similar difficulties undercut the defense’s theory that defendant was merely a
product of his environment; (4) because the prosecutor did not address the broader
question whether defendant’s home life could have led him to any form of
violence, he improperly argued that defendant’s home life did not make him a
murderer; and (5) because the prosecutor’s reasoning relied on a false assumption
that the skills required for academic and mechanical tasks are the same, and that
those with learning disabilities cannot do mechanical tasks, the prosecutor argued
improperly in contending that defendant’s ability to take apart a carburetor and put
it back together showed his brain worked well and refuted evidence of learning
disabilities in an academic environment.
Again, defendant’s complaints are meritless. The prosecutor was arguing, as
he was entitled to do, that the penalty phase evidence did not warrant sympathy.
(See People v. Maury, supra, 30 Cal.4th 342, 420.)
g. References to Juvenile Offense as a Felony
Defendant argues that defendant’s juvenile car burglary, evidence of which
was introduced at the guilt phase, should not have been referred to as a felony by
the prosecutor in closing argument.
Defendant cites two separate instances of alleged misconduct. The
prosecutor reminded the jury not to consider his juvenile burglary as aggravating
evidence under section 190.3, factor (c). Later, the prosecutor, over defendant’s
objection, argued that defendant committed burglaries and called one of them a
felony, even as he reminded the jury that because of defendant’s age the jurors
could not consider that burglary in aggravation.
Defendant’s claims regarding the first instance are forfeited. The second set
of claims are preserved for review. Both, however, fail on the merits. We have
already explained there was nothing improper in reminding the jury not to
consider in aggravation conduct that it was not entitled to consider. As for the
second comment, it was not misconduct for the prosecutor to point out that the
statutory factors of defendant’s age and his lack of felony convictions should not
be given much weight in mitigation, since he had squandered opportunities for
positive change after being put on probation for the felony juvenile matter.
h. Invoking Defendant’s Statement Evincing Indifference
Defendant contends the prosecution committed misconduct in invoking his
extrajudicial statement that “I don’t care about her,” meaning his murder victim,
Kellie O’Sullivan, in an effort to persuade the jury to see defendant as indifferent
to O’Sullivan’s death and as having no remorse for murdering her.
The prosecutor could urge that remorse was unavailable as a factor in
mitigation. “ ‘[P]ostcrime evidence of remorselessness does not fit within any
statutory sentencing factor, and thus should not be urged as aggravating.’
[Citation.] When evidence of postcrime remorselessness has been presented,
however, the prosecutor may ‘stress that remorse is not available as a mitigating
factor.’ ” (People v. Pollock, supra, 32 Cal.4th 1153, 1184-1185, italics deleted.)
The prosecutor did no more than he was entitled to do. Thus, defendant’s claims
are without merit.
i. Allegedly Hinting at Defendant’s Failure to Testify at the
Defendant contends that the prosecution improperly made veiled references
to him not taking the stand at the penalty phase. Specifically, defendant complains
about the prosecutor’s comments that a defendant seeking mercy should at least
present evidence that he or she “is sincerely and genuinely remorseful” and that
defendant did not show “that within a short amount of time he was sincerely and
genuinely remorseful about what he did.”
Defendant objected to the first remark as being improper argument and was
overruled, but did not object to the second. Respondent maintains that any claim
regarding the second remark is forfeited for purposes of appeal. (See People v.
Farnam, supra, 28 Cal.4th 107, 167.) We disagree. Any objection to the
prosecutor’s second remark would have been futile. Both prosecutorial remarks
touched on defendant’s lack of sincere and genuine remorse, and the second
followed immediately after the trial court overruled defendant’s objection to the
first. Defendant has preserved his claims for review with regard to both
There was, however, no misconduct. The prosecutor’s remarks constituted
fair argument regarding the lack of evidence of remorse. As noted, such argument
is proper to show the absence of remorse as a mitigating factor. (People v.
Pollock, supra, 32 Cal.4th 1153, 1184-1185.) The prosecutor was arguing that
defendant had shown no remorse, not commenting on defendant’s failure to testify.
j. Alleged Pattern of Misconduct Warranting Reversal
Defendant contends that the foregoing occurrences, considered together,
established a pattern of misconduct that warrants reversal. His claims fail for want
of a sufficient factual predicate: there was no misconduct.
5. Procedure for Replacing Excused Juror
At the penalty phase, it became necessary to replace a sitting juror with an
alternate. The court did so by choosing one of the alternates by random draw.
(See § 1089.) Defendant asserts that the prosecutor should have agreed to depart
from the statutory procedure for replacing an ill seated juror and stipulate that the
trial court could select the sole female alternate juror. He claims that the
prosecutor’s failure to do so violated the federal constitutional guaranty of equal
protection of the laws (Batson v. Kentucky (1986) 476 U.S. 79 (Batson)), the state
constitutional right to a jury drawn from a representative cross-section of the
community (People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler)), and his rights to
a reliable and fundamentally fair trial under the Eighth and Fourteenth
On the morning of March 13, 1995, after the parties had rested their cases at
the penalty phase, but before closing arguments began, the trial court learned that
one of the seated jurors was ill and could not return to court for several days. The
defense initially agreed that the seated juror likely could be excused for cause, but
ultimately asked the court to ask the juror’s doctor how long he would be absent.
The prosecutor agreed.
During the discussion about the juror’s health the prosecutor asked about the
method that would be used to pick an alternate if it proved to be necessary.
Defense counsel replied, “I did not know it was open for discussion. My
experience has always been that jurors or alternates are selected in the order in
which they are numbered.” The court replied, “Well, actually the Code says you
are to draw, unless there’s an agreement to the contrary.” The prosecutor asked
about the order in which the alternates were numbered, and the court replied that
the first alternate was “Miss [C.],” and the other three, in order, were “Mr. [M.],
. . . Mr. [C.] and . . . Mr. [S.]. Alternate Number 1 is the only lady among the
alternates.” Without commenting on the gender of any of the alternates, the
prosecutor said, “We would vote for following the procedure in the Code that we
just select them out of the hat. That’s the way it has been done in, I think, every
trial that I have ever had.” The court replied, “Well, the law is that you do that
unless there’s an agreement to do something else. Unless there is an agreement to
do something else, that’s what we will do.”
After lunch that day the trial court announced that it had been informed the
juror could not return for a week and suggested he be replaced. The prosecution
agreed, but defense counsel objected, asking that the trial be continued until the
juror could return and commenting that the continuance would be for only three
court days. The prosecution again said it preferred to replace the juror by random
draw from among the alternates, and the court ruled against defendant, finding
good cause to replace the ill juror (see § 1089). The clerk drew at random from a
box the name of alternate juror Keith C., a male. When trial resumed the next day,
Keith C. took his seat as a member of the jury and the parties proceeded with
In replacing the ill juror by random drawing, the trial court was following the
mandate of section 1089. As relevant here, section 1089 provides: “If at any time,
whether before or after the final submission of the case to the jury, a juror dies or
becomes ill, or upon other good cause shown to the court is found to be unable to
perform his or her duty, or if a juror requests a discharge and good cause appears
therefore, the court may order the juror to be discharged and draw the name of an
alternate, who shall then take a place in the jury box, and be subject to the same
rules and regulations as though the alternate juror had been selected as one of the
original jurors.” (Italics added.)
We turn to defendant’s Batson-Wheeler claim. A prosecutor’s use of
peremptory challenges to strike prospective jurors on the basis of group bias
violates a defendant’s right to trial by a jury drawn from a representative cross-
section of the community under the state Constitution (Wheeler, supra, 22 Cal.3d
258, 276-277; People v. Griffin, supra, 33 Cal.4th 536, 553) and the defendant’s
right to equal protection under the Fourteenth Amendment. (Batson, supra, 476
U.S. 79, 88) Defendant argues that the Batson-Wheeler prohibitions logically
apply to a prosecutor’s decision (as he views the prosecutor’s action) to exclude an
alternate juror from joining the jury based on gender.
Defendant did not raise a Batson-Wheeler challenge at trial, and has forfeited
the claim. “A defendant who believes the prosecution is improperly using
peremptory challenges for a discriminatory purpose is required to ‘raise a timely
objection and make a prima facie showing that jurors are being excluded on the
basis of racial or group identity.’ ” (People v. Morrison (2004) 34 Cal.4th 698,
709, italics added.) The foregoing rule also applies when a party invokes a
Batson-Wheeler claim based on a novel theory that the protection conferred by
those cases extends to the method of replacing an excused juror with an alternate.
Turning to the merits, we see no Batson-Wheeler violation. The trial court
mentioned in an inconsequential aside (inconsequential because section 1089
specifies a random drawing of an alternate to replace a seated juror) that the first
alternate juror was the only woman among the four alternates. But the prosecutor
never said anything about the gender of any of the alternate jurors or did anything
to preclude her or reduce her chance of joining the seated jurors. Rather, the
prosecutor merely deferred to the provisions of the Penal Code. He simply asked
for an alternate juror to be picked at random because that is what section 1089
specifies and he had never heard of substituting a juror by any other method.
Defendant’s Eighth and Fourteenth Amendment claims are forfeited because
he did not present them to the trial court. (People v. Partida, supra, 37 Cal.4th
428, 435.) In any event, those claims lack merit. The court followed the rule set
forth in section 1089, and insofar as there were legal grounds to discharge the ill
juror and replace that juror with an alternate, no constitutional violation occurred.
(See People v. Boyette, supra, 29 Cal.4th 381, 461-463 & fn. 20.)
6. Evidence and Instructions Regarding Prior Crimes
Defendant claims he was “overcharged” under section 190.3, factor (b),
because the trial court (1) permitted the prosecution to introduce evidence under
factor (b) that fell outside its scope, and (2) gave a special instruction that (a) listed
individual instances of possible aggravating conduct under more than one criminal
statute, and (b) segmented single criminal courses of conduct (i.e., criminal
transactions) into separate offenses. He maintains that the court compounded the
errors by failing to instruct the jury not to double-count defendant’s misconduct
under separate penal provisions, by giving a biased instruction on his possessing a
contraband razor in jail, and by failing to give CALJIC No. 12.42. He claims that
the foregoing acts and omissions violated factor (b) and the reliable penalty
determination required by the Eighth Amendment to the federal Constitution.
Before the penalty phase began, defendant moved to exclude evidence of
certain alleged acts that in his view did not amount to “criminal activity by the
defendant which involved the use or attempted use of force or violence or the
express or implied threat to use force or violence.” (§ 190.3, factor (b).) As
relevant to this appeal, defendant argued at two hearings that the following acts
did not fall under factor (b): his struggle with Stephanie C. on September 10,
1993; his attempts to escape from the Reno police after his arrest on September
20, 1993; and his struggle with sheriff’s deputies in jail on January 14, 1994. The
trial court granted defendant’s motion in minor part, but, in the main, ruled that the
evidence of each incident fell within the ambit of factor (b).
On appeal, defendant renews his argument that the evidence of these events
should have been excluded because it did not lie within the scope of section 190.3,
factor (b). We disagree in each case. As noted, defendant showed up at
Stephanie C.’s workplace and pushed her to the ground. That was battery (§ 242).
He struggled with Reno police officers and they had to summon a van they use to
control combative prisoners. Those were violent (see § 69) and willful (see § 148,
former subd. (a); Stats. 1990, ch. 1181, § 1, p. 4930) physical acts of resistance
against the officers in the performance of their duties involving either violence or
the threat of it. In the January 14, 1994, in-custody incident, defendant had to be
subdued by sheriff’s deputies and told them, “I was looking to stick your ass.”
Each of the foregoing incidents constituted “criminal activity by the defendant
which involved the use or attempted use of force or violence or the express or
implied threat to use force or violence.” (§ 190.3, factor (b).) Because the
evidence was properly introduced under factor (b), there was no violation of
defendant’s right to a reliable penalty determination under the Eighth and
Fourteenth Amendments to the federal Constitution. (People v. Lewis and Oliver,
supra, 39 Cal.4th 970, 1051-1054.)
i. Claim of Inflating of Aggravating Criminal Conduct
The prosecution sought an instruction, based on CALJIC No. 8.87, listing 16
possible aggravating acts for the jury’s consideration under section 190.3, factor
(b). Defendant requested a different instruction which listed far fewer criminal
acts. After hearing argument, the trial court gave the prosecution’s instruction.
Defendant argues that the instruction improperly allowed the jury to double-count
the same conduct under more than one statutory provision.
We rejected a similar claim in People v. Davis (1995) 10 Cal.4th 463. In
Davis, “defendant was charged in [a] samurai sword incident with misdemeanor
battery and brandishing, [and] was convicted of brandishing only. At the
prosecutor’s request, and over defendant’s objection, the trial court instructed the
jury that it could consider the samurai sword incident in aggravation for
brandishing, battery, and assault with a deadly weapon. It instructed the jury on
the elements of all three offenses” (Id. at p. 543.) As here, the defendant argued
the court should have instructed the jury on only one crime per incident. We
disagreed. “Evidence of prior violent conduct is admitted under Penal Code
section 190.3, factor (b), ‘to enable the jury to make an individualized assessment
of the character and history of the defendant to determine the nature of the
punishment to be imposed.’ [Citation.] ‘ “ ‘[I]t is not [only] the fact of conviction
which is probative in the penalty phase, but rather the conduct of the defendant
which gave rise to the offense.” ’ ” [Citation.] Indeed, Penal Code section 190.3,
factor (b), ‘expressly permits proof of any violent “criminal activity” regardless of
whether it led to prosecution or conviction.’ [Citation.] [¶] It is thus irrelevant
that defendant was not convicted of, or formally charged with, the crime of assault
with a deadly weapon. The jury was properly permitted to consider defendant’s
conduct in aggravation if it determined that the elements of the crime of assault
with a deadly weapon were proved beyond a reasonable doubt.” (Id. at p. 544.)
Defendant offers no convincing reason why we should depart from the
conclusion we reached in Davis. We reject his claim that the court’s action
improperly inflated the case in aggravation. His Eighth and Fourteenth
Amendment claim, predicated as it is on his state law claim, also fails. (People v.
Davis, supra, 10 Cal.4th 463, 544, fn. 40.) Finally, under the reasoning of Davis,
we do not discern any violation of defendant’s due process rights. The
instructions were permissible under state law.
ii. Possessing Deadly Weapon in Jail
Defendant contends that giving the following prosecution-proposed
instruction regarding the evidence of his possessing a contraband razor blade in
jail (see § 4574, subd. (a)) was unfairly tilted toward the prosecution’s case:
“Every person who while confined in a county jail possesses any deadly weapon is
guilty of a felony. [¶] An object should be evaluated as to its potential use when
determining whether it is a deadly weapon.” Defendant maintains that the
instruction was “one-sided” and argues that because section 4574 proscribes
possessing a deadly weapon in jail without any intent requirement (People v.
Grayson (2000) 83 Cal.App.4th 479, 486), either the trial court should not have
allowed an instruction on these incidents or, if it was to be given, CALJIC No.
12.42 should have been given to require the jurors to find that defendant intended
to use the razor blades within the meaning of section 190.3, factor (b).
Possessing a contraband razor in jail (§ 4574, subd. (a)) is a violent offense
for purposes of section 190.3, factor (b). (People v. Pollock, supra, 32 Cal.4th
1153, 1178.) Defendant’s claim regarding CALJIC No. 12.42 must be rejected.
At the time, CALJIC No. 12.42 provided as follows:
“In determining if the instrument or object in this case was a weapon of the
kind within the law as stated, you may consider the circumstances attending any
possession of the instrument or object by the defendant, such as the time and place
of its possession; the destination of the possessor; any alteration of the object from
its standard form; and evidence, if any, indicating its intended use by the possessor
for a dangerous rather than a harmless purpose.” (CALJIC No. 12.42 (5th ed.
CALJIC No. 12.42, however, is inapplicable to a charge under section 4574,
subdivision (a). The use note to CALJIC No. 12.42 accurately observes, “This
instruction is essential when the questioned object is an innocent-appearing utensil
capable of use as a dangerous object.” In such a case, the trier of fact must find
criminal intent on the part of the possessor before finding him or her guilty of the
offense. As we explained, discussing a statute proscribing possession of a
slugging weapon, “The Legislature here sought to outlaw the classic instruments
of violence and their homemade equivalents; the Legislature sought likewise to
outlaw possession of the sometimes-useful object when the attendant
circumstances, including the time, place, destination of the possessor, the
alteration of the object from standard form, and other relevant facts indicated that
the possessor would use the object for a dangerous, not harmless, purpose.”
(People v. Grubb (1966) 63 Cal.2d 614, 620-621.) “The Legislature thus decrees
as criminal the possession of ordinarily harmless objects when the circumstances
of possession demonstrate an immediate atmosphere of danger. Accordingly the
statute would encompass the possession of a table leg, in one sense an obviously
useful item, when it is detached from the table and carried at night in a ‘tough’
neighborhood to the scene of a riot. On the other hand the section would not
penalize the Little Leaguer at bat in a baseball game.” (Id. at p. 621.) The same
considerations do not apply to section 4574, which contains no intent requirement
(People v. Grayson, supra, 83 Cal.App.4th 479, 486; see also People v. Rubalcava
(2000) 23 Cal.4th 322, 325, 333-334). In sum, “CALJIC No. 12.42 . . . [is]
inapplicable . . . . Section 4574, subdivision (a) prohibits the unauthorized
possession of deadly weapons by confined inmates at all times, in all (confined)
places, at all destinations, regardless of alteration.” (People v. Savedra (1993) 15
Cal.App.4th 738, 743.)
7. Refusal to Give Special Age-related Factor (i) Instruction
Defendant claims the court erred in violation of various constitutional rights
by refusing to give this instruction he requested regarding his age:
“One of the factors for you to consider in determining the penalty is the age
of the defendant at the time of the offense(s).
“Defendant was 19 years [old] when he committed the crimes of which you
have found him guilty. You may consider that had he been under 18 years old
when the crimes were committed, he would not be subject to the death penalty.
“Chronological age, by itself, is a matter over which the defendant has no
control, and which is not relevant to the choice of penalty.
“However, the factor relating to ‘defendant’s age,’ as set forth in these
instructions, refers to any matter concerning defendant’s age, maturity, and
judgment that common experience or morality might indicate to be relevant to the
issue of penalty.
“You shall therefore give any such age-related factors consideration in
arriving at a judgment as to penalty.”
The trial court said it had a “problem” with defendant’s proposed instruction,
which it regarded as “argumentative.” “[I]f I gave this,” the court continued, “I
think I ought to give one for the People about the negative things they can dredge
up about the Defendant’s young age, and that is he had committed an awful lot of
crimes by the time he was 18.”
Accordingly, the trial court refused defendant’s proposed special instruction
and gave the standard section 190.3, factor (i) instruction regarding defendant’s
age, instructing the jury that it “shall consider,” “if applicable,” “[t]he age of the
defendant at the time of the crime.” (CALJIC No. 8.85 (5th ed. 1988).)
The instruction was argumentative and the trial court properly refused to give
it. In People v. Brown, supra, 31 Cal.4th 518, we stated that the trial court
properly refused to give “the following instruction: ‘An individual under 18 is not
subject to the death penalty. You may consider the fact that Mr. Brown was 19 at
the time of this offense.’ ” (Id. at p. 564.) We stated that “the trial court correctly
refused the proffered instruction. ‘[T]he general rule is that a trial court may
refuse a proffered instruction if it . . . is argumentative, or is duplicative.’
[Citation.] ‘Although instructions pinpointing the theory of the defense might be
appropriate, a defendant is not entitled to instructions that simply recite facts
favorable to him.’ [Citation.] By instructing the jury that those younger than 18
years old are legally ineligible for the death penalty, the proffered instruction
highlighted a single, mitigating aspect of defendant’s age—that he had only
recently become eligible for the ultimate penalty—and was thus improperly
argumentative.” (Id. at pp. 564-565.) Defendant’s proposed instruction was
similarly argumentative and, hence, properly refused.
8. Failure to Instruct on Burden of Proof
Defendant argues that the trial court violated various constitutional rights
when it failed to instruct the jury that there was no burden of proof on either party.
“Jurors who believe[d] the burden should be on the defendant to prove mitigation
in [the] penalty phase would continue to believe that,” he contends.
There is no burden of proof or persuasion on either party at the penalty phase
of a capital trial. (E.g., People v. Hughes, supra, 27 Cal.4th 287, 394.)
Nevertheless, we reject defendant’s contention that the jury must expressly be so
instructed. To be sure, it is not error if a trial court chooses to instruct the jury in
the broad terms defendant would have preferred, i.e., that there is no burden of
proof on either party. (People v. Williams (1988) 44 Cal.3d 883, 960 [case tried
under 1977 death penalty law], cited with approval in People v. Ledesma (2006)
39 Cal.4th 641, 739 [case tried under 1977 death penalty law]; see also People v.
Ainsworth (1988) 45 Cal.3d 984, 1031 [in case tried under 1977 death penalty law,
“[b]y stipulation of the parties, the court had also instructed that ‘for this phase of
the proceeding there is no burden of proof on either side of the case’ ”].) But
defendant benefited from a more precise and helpful instruction regarding the
jury’s task: the court properly instructed the jurors that they were “free to assign
whatever moral or sympathetic value you deem appropriate to each and all of the
various factors you are permitted to consider,” and that “[t]o 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.” This satisfied instructional requirements regarding
the lack of a burden of proof or persuasion at the penalty phase. (See People v.
Hughes, supra, at p. 394 [quoting materially identical instructional language in
rejecting a claim that prosecutorial remarks shifted to the defendant the burdens of
proof and persuasion of showing that he deserved to live].)
C. Miscellaneous Issues
Defendant raises additional challenges to California’s death penalty statute
and to other aspects of California law, as interpreted by this court and as applied at
his trial. We adhere to the decisions that have rejected similar claims, and decline
to reconsider such authorities, as follows:
The death penalty law adequately narrows the class of death-eligible
offenders. (People v. Prieto (2003) 30 Cal.4th 226, 276.)
Section 190.3, factor (a), is not unconstitutionally overbroad, arbitrary,
capricious, or vague, whether on its face (People v. Guerra (2006) 37 Cal.4th
1067, 1165) or as applied to defendant.
The death penalty law is not unconstitutional for failing to impose a burden
of proof—whether beyond a reasonable doubt or by a preponderance of the
evidence—as to the existence of aggravating circumstances, the greater weight of
aggravating circumstances over mitigating circumstances, or the appropriateness
of a death sentence. (People v. Brown (2004) 33 Cal.4th 382, 401.) Except for
section 190.3, factor (b), no burden of proof is constitutionally required at the
penalty phase. (People v. Moon (2005) 37 Cal.4th 1, 43.) And is there no
constitutional requirement that the jury find aggravating factors unanimously.
(People v. Osband (1996) 13 Cal.4th 622, 709-710.)
Neither Apprendi v. New Jersey (2000) 530 U.S. 466, nor Ring v. Arizona
(2002) 536 U.S. 584, has changed our prior conclusions regarding burden of proof
or jury unanimity. (People v. Lewis and Oliver, supra, 39 Cal.4th 970, 1068.)
There is no requirement that the jury prepare written findings identifying the
aggravating factors on which it relied. (People v. Cook (2006) 39 Cal.4th 566,
The statutory scheme is not unconstitutional insofar as it does not contain
disparate sentence review (i.e., comparative or intercase proportionality review).
(People v. Lewis and Oliver, supra, 39 Cal.4th 970, 1067.)
Allowing consideration of unadjudicated criminal activity under section
190.3, factor (b) is not unconstitutional as a general matter; moreover, and
contrary to defendant’s argument, it does not render a death sentence unreliable.
(People v. Morrison, supra, 34 Cal.4th 698, 729.) Neither Apprendi v. New Jersey,
supra, 530 U.S. 466, nor Ring v. Arizona, supra, 536 U.S. 584, affects our
conclusion that factor (b) is constitutional. (People v. Ward (2005) 36 Cal.4th 186,
The use of such adjectives in the sentencing factors as “extreme” (§ 190.3,
factors (d), (g)) and “substantial” (id., factor (g)) is constitutional. (People v. Avila
(2006) 38 Cal.4th 491, 614.)
There is no requirement that the jury be instructed on which factors are
mitigating and which are aggravating. (People v. Vieira (2005) 35 Cal.4th 264,
The guaranty of equal protection of the laws does not require this court to
give capital defendants the same sentence review afforded other felons under the
determinate sentencing law. (People v. Cox, supra, 30 Cal.4th 916, 970.)
The judgment and sentence against defendant do not violate international
law. (People v. Lewis and Oliver, supra, 39 Cal.4th 970, 1066.) Nor does
California’s asserted status as being in the minority of jurisdictions worldwide that
impose capital punishment, or this jurisdiction’s asserted contrast with the nations
of Western Europe in that we impose capital punishment and they purportedly
either do not or do so only in exceptional circumstances, result in any violation of
the Eighth Amendment to the federal Constitution. (People v. Moon, supra, 37
Cal.4th 1, 47-48.) The record contains no suggestion that defendant is a foreign
national or a dual national.
D. Cumulative Error
Defendant argues that the cumulative effect of the asserted errors requires us
to reverse the judgment. We disagree. We have found no reversible error in any
particular instance, and any errors that may have occurred do not, separately or
together, entitle defendant to relief. His trial was fair.
E. Indeterminate Term Issue
As to count four, the jury found defendant guilty of kidnapping for robbery
under section 209, subdivision (b). With regard to this count, it also found true
that the victim “suffered bodily harm and death,” and that defendant intentionally
inflicted great bodily injury on her. The trial court sentenced defendant to a term
of life imprisonment without possibility of parole on this count. Defendant
contends the court erred. We agree.
At the time of the crime, section 209, subdivision (b), provided: “Any person
who kidnaps or carries away any individual to commit robbery shall be punished
by imprisonment in the state prison for life with possibility of parole.” (Stats.
1990, ch. 55, § 3, p. 394, italics added.) It appears the trial court relied on section
209, subdivision (a), for the sentence it imposed. Subdivision (a) provides that the
sentence for kidnapping for ransom is life without the possibility of parole when
bodily harm is involved. (See People v. Nguyen (2000) 22 Cal.4th 872, 884.)
However, as we explained in Nguyen, in 1976, “section 209 was reconfigured,
segregating the crime of kidnapping for ransom, extortion or reward into
subdivision (a) of the section and that of kidnapping for robbery into subdivision
(b).” (Ibid.) In contrast to section 209, subdivision (a), “[t]he new subdivision (b)
of section 209 . . . made no reference to bodily harm, nor did it retain the increased
penalty of life imprisonment without the possibility of parole.” (People v. Nguyen,
supra, at pp. 884-885.) “In other words, by its terms the statute did not carry over
[from the prior version of section 209] to the crime of kidnapping for robbery, now
set forth in new section 209, subdivision (b), a linkage of ‘bodily harm’ with an
increased penalty.” (People v. Nguyen, supra, at p. 885.)
Because defendant was convicted of kidnapping for robbery under section
209, subdivision (b), rather than kidnapping for ransom under section 209,
subdivision (a), the punishment for that count should have been life imprisonment
with the possibility of parole. Accordingly, we will modify the judgment to
change the sentence on count 4 from life imprisonment without possibility of
parole to life imprisonment with possibility of parole.
The judgment is modified to reflect a sentence of life imprisonment with
possibility of parole on count 4. The trial court is directed to send an amended
abstract of judgment to the Department of Corrections and Rehabilitation in
accordance with this modification. As so modified, the judgment is affirmed.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Thornton
Original Appeal XXX
Opinion No. S046816
Date Filed: June 28, 2007
Judge: Charles R. McGrath
Attorneys for Appellant:
Paul J. Spiegelman, under appointment by the Supreme Court, for Defendant and Appellant.
Attorneys for Respondent:
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney
General, Pamela C. Hamanaka, Assistant Attorney General, Keith H. Borjon, Michael J. Wise, John R.
Gorey and Sharlene A. Honnaka, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Paul J. Spiegelman
P.O. Box 22575
San Diego, CA 92192-2575
Sharlene A. Honnaka
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
|1||The People (Respondent)|
Represented by Sharlene A. Honnaka
Attorney General's Office
300 S. Spring Street, Suite 500
Los Angeles, CA
|2||The People (Respondent)|
Represented by Attorney General - Los Angeles Office
Michael Wise, Deputy Attorney General
300 S. Spring Street, Suite 500
Los Angeles, CA
|3||Thornton, Mark Scott (Appellant)|
San Quentin State Prison
Represented by Habeas Corpus Resource Center
Michael Laurence, Executive Director
303 Second Street, Suite 400 South
San Francisco, CA
|4||Thornton, Mark Scott (Appellant)|
San Quentin State Prison
Represented by Paul J. Spiegelman
Attorney at Law
P.O. Box 22575
San Diego, CA
|Jun 28 2007||Opinion: Affirmed as modified|
|May 15 1995||Judgment of death|
|May 30 1995||Filed certified copy of Judgment of Death Rendered|
|Aug 5 1999||Filed:|
appellant's application for appointment of counsel (IFP form).
|Aug 12 1999||Compensation awarded counsel|
|Aug 12 1999||Counsel appointment order filed|
Upon request of appellant for appointment of counsel, Paul J. Spiegelman is hereby appointed to represent appellant Mark Scott Thornton for the direct appeal in the above automatic appeal now pending in this court.
|Nov 1 1999||Received letter from:|
Superior Court, dated 10/29/99, Advising Record Was mailed to Applt's Counsel on 10/29/99.
|Jan 31 2000||Application for Extension of Time filed|
By Applt to request Corr. of the Record.
|Feb 4 2000||Extension of Time application Granted|
To 3/31/2000 To Applt To request Corr. of the Record.
|Mar 27 2000||Application for Extension of Time filed|
By Applt to request Corr. of the Record.
|Mar 28 2000||Extension of Time application Granted|
To 5/30/2000 To Applt To request Corr. of the Record.
|May 25 2000||Application for Extension of Time filed|
By Applt to request Corr. of the Record.
|May 26 2000||Extension of Time application Granted|
To 7/31/2000 To Applt To request Corr. of the Record.
|Jul 6 2000||Counsel's status report received (confidential)|
from atty Spiegelman.
|Jul 27 2000||Application for Extension of Time filed|
By applt to request corr. of the record. (4th request)
|Aug 1 2000||Extension of Time application Granted|
to applt to 9-29-2000 to request correction of the record.
|Sep 8 2000||Counsel's status report received (confidential)|
from atty Spiegelman.
|Sep 26 2000||Application for Extension of Time filed|
By applt to request corr. of the record (5th request)
|Sep 29 2000||Extension of Time application Granted|
To 11/28/2000 to applt to request corr. of the record. No further ext. of time are contemplated.
|Nov 9 2000||Counsel's status report received (confidential)|
from atty Spiegelman.
|Nov 22 2000||Application for Extension of Time filed|
By applt to request corr. of the record. (6th request)
|Dec 18 2000||Extension of Time application Granted|
Based on appointed applt counsel's representation that he expects to complete his review of the approximately 14,410-page record on appeal and file in the superior court applt's record corr. mtn. within six months, by the end of May 2001, it is ordered that applt is granted to and including 1/29/2001, to request corr. of the record. Counsel for applt shall continue to notify this court, in any further request for ext. of time to request corr. of the record, of his record review progress, his schedule for completion of record review, and his schedule to file applt's record corr. mtn. In the absence of a showing of exceptional circumstances, the court will not grant any ext. of time to request corr. of the record beyond May 2001.
|Jan 10 2001||Counsel's status report received (confidential)|
from atty Spiegelman.
|Jan 22 2001||Application for Extension of Time filed|
By apptl to request corr. of the record. (7th request)
|Jan 29 2001||Extension of Time application Granted|
To 3/30/2001 to applt to request corr. of the record.
|Mar 8 2001||Counsel's status report received (confidential)|
from atty Spiegelman.
|Mar 27 2001||Application for Extension of Time filed|
By applt. to request corr. of the record. (8th request)
|Mar 29 2001||Extension of Time application Granted|
To 5/29/2001 to applt. to request corr. of the record.
|May 8 2001||Counsel's status report received (confidential)|
from atty Spiegelman.
|May 23 2001||Application for Extension of Time filed|
By applt. to request corr. of the record. (9th request)
|May 29 2001||Extension of Time application Granted|
To 7/30/2001 to applt. to request corr. of the record. No further extensions of time are contemplated.
|Jul 9 2001||Counsel's status report received (confidential)|
from atty Spiegelman.
|Aug 3 2001||Received copy of appellant's record correction motion|
applt's motion for correction, augmentation and to settle the record on appeal. (53 pp.)
|Aug 29 2001||Compensation awarded counsel|
|Sep 7 2001||Counsel's status report received (confidential)|
from atty Spiegelman.
|Nov 26 2001||Counsel's status report received (confidential)|
from atty Spiegelman.
|Jan 7 2002||Counsel's status report received (confidential)|
from atty Spiegelman.
|Mar 13 2002||Counsel's status report received (confidential)|
from atty Spiegelman.
|May 16 2002||Counsel's status report received (confidential)|
from atty Spiegelman.
|Jun 26 2002||Compensation awarded counsel|
|Jul 10 2002||Counsel's status report received (confidential)|
from atty Spiegelman.
|Jul 18 2002||Note:|
Appendix to clerk's transcript, volumes A-L, are returned to Ventura County Superior Court, this date, for re-pagination and the preparation of an alpha. and chrono. index. Transcripts are to be returned no later than, 8/19/2002.
|Aug 27 2002||Record on appeal filed|
Clerk's transcript 65 volumes (15,347 pp.); reporter's transcipt 88 volumes (11,492 pp.) including material under seal. Clerk's transcript includes 4,462 pp. of juror questionnaires.
|Aug 27 2002||Appellant's opening brief letter sent, due:|
October 7, 2002.
|Sep 11 2002||Counsel's status report received (confidential)|
from atty Spiegelman.
|Oct 4 2002||Compensation awarded counsel|
|Oct 11 2002||Request for extension of time filed|
To file appellant's opening brief. (1st request)
|Oct 17 2002||Extension of time granted|
To 12/6/2002 to file appellant's opening brief.
|Nov 14 2002||Counsel's status report received (confidential)|
from atty Spiegelman.
|Dec 3 2002||Request for extension of time filed|
To file appellant's opening brief. (2nd request)
|Dec 5 2002||Extension of time granted|
To 2/4/2003 to file appellan't opening brief.
|Jan 30 2003||Request for extension of time filed|
to file AOB. (3rd request)
|Jan 30 2003||Counsel's status report received (confidential)|
from atty Spiegelman.
|Feb 3 2003||Extension of time granted|
to 4/7/2003 to file appellant's opening brief. After that date, only three further extensions totaling about 150 additional days are contemplated. Extension is granted based upon counsel Paul Spiegelman's representation that he anticipates filing that brief by 9/1/2003.
|Apr 2 2003||Request for extension of time filed|
to file appellant's opening brief. (4th request)
|Apr 4 2003||Extension of time granted|
to 6/6/2003 to file appellant's opening brief. After that date, only two further extensions totaling 90 additional days are contemplated. Extension is granted based upon counsel Paul J. Spiegelman's representation that he anticipates filing that brief by 9/1/2003.
|May 28 2003||Counsel's status report received (confidential)|
from atty Spiegelman.
|May 30 2003||Request for extension of time filed|
to file appellant's opening brief. (5th request)
|Jun 4 2003||Extension of time granted|
to 8/5/2003 to file appellant's opening brief. After that date, only one further extension totaling about 70 additional days is contemplated. Extension is granted based upon counsel Paul J. Spiegelman's representation that he anticipates filing that brief. by 10/15/2003.
|Jul 28 2003||Request for extension of time filed|
to file AOB. (6th request)
|Jul 28 2003||Counsel's status report received (confidential)|
from atty Spiegelman.
|Jul 31 2003||Extension of time granted|
to 10-15-2003 to file AOB. After that date, no further extension is contemplated. Extension granted based upon counsel Paul Spiegelman's representation that he anticipates filing the brief by 10-15-2003.
|Sep 30 2003||Compensation awarded counsel|
|Oct 6 2003||Counsel's status report received (confidential)|
from attorney Spiegelman.
|Oct 9 2003||Request for extension of time filed|
to file appellant's opening brief. (7th request)
|Oct 14 2003||Compensation awarded counsel|
|Oct 17 2003||Extension of time granted|
to 12/15/2003 to file appellant's opening brief. After that date, no further extension will be granted. Extension is granted based upon counsel Paul J. Spiegelman's representation that he anticiaptes filing that brief by 12/14/2003.
|Dec 8 2003||Request for extension of time filed|
to file AOB. (8th request)
|Dec 11 2003||Extension of time granted|
to 1/20/2004 to file appellant's opening brief. Extension is granted based upon counsel Paul Spiegelman's representation that he anticipates filing that brief by 1/20/2004. After that date, no further extensions will be granted.
|Jan 13 2004||Request for extension of time filed|
to file appellant's opening brief. (9th request)
|Jan 16 2004||Extension of time granted|
to 02/09/04 to file appellant's opening brief. After that date, no further extensions will be granted. Extension is granted based upon counsel Paul J. Spiegelman's representation that he anticipates filing that brief by 02/09/04.
|Feb 9 2004||Application to file over-length brief filed|
"To File Appellant's Opening Brief in Excess of Word Count Limit Established in Rule 36 of the California Rules of Court." (134,569 word brief submitted under separate cover)
|Feb 18 2004||Order filed|
The application of appellant for leave to file appellant's opening brief in excess of the word count limit is granted.
|Feb 18 2004||Appellant's opening brief filed|
(134,569 words - 364 pp.)
|Feb 25 2004||Compensation awarded counsel|
|Mar 15 2004||Request for extension of time filed|
to file respondent's brief. (1st request)
|Mar 17 2004||Extension of time granted|
to 5/18/2004 to file respondent's brief.
|May 6 2004||Request for extension of time filed|
to file respondent's brief. (2nd. request]
|May 12 2004||Extension of time granted|
to 7/19/2004 to file respondent's brief. After that date, only two further extensions totaling about 100 additional days will be granted. Extension is granted based upon Deputy Attorney General John R. Gorey's representation that he anticipates filing that brief by 10/29/2004.
|Jul 12 2004||Request for extension of time filed|
to file respondent's brief. (3rd. request)
|Jul 15 2004||Extension of time granted|
to 9/17/2004 to file respondent's brief. After that date, only one further extension totaling about 40 additional days will be granted. Extension is granted based upon Deputy Attorney General John R. Gorey's representation that he anticipates filing that brief by 10/29/2004.
|Sep 7 2004||Request for extension of time filed|
to file respondent's brief. (4th request)
|Sep 10 2004||Extension of time granted|
to 10/29/2004 to file respondent's brief. Extension is granted based upon Deputy Attorney General John R. Gorey's representation that he anticipates filing that brief by 10/29/2004. After that date, no further extension will be granted.
|Oct 29 2004||Respondent's brief filed|
(83,793 words; 286 pp.)
|Nov 17 2004||Request for extension of time filed|
to file appellant's reply brief. (1st request)
|Nov 18 2004||Extension of time granted|
to 1/18/2005 to file appellant's reply brief.
|Jan 13 2005||Request for extension of time filed|
to file appellant's reply brief. (2nd request)
|Jan 20 2005||Extension of time granted|
to 3/21/2005 to file appellant's reply brief. After that date, only one further extension totaling about 35 additional days will be granted. Extension is granted based upon counsel Paul J. Spiegelman's representation that he anticipates filing that brief by 4/27/2005.
|Mar 17 2005||Request for extension of time filed|
to file appellant's reply brief. (3rd request)
|Mar 22 2005||Extension of time granted|
to 5/27/2005 to file appellant's reply brief. Extension is granted based upon counsel Paul J. Spiegelman's representation that he anticipates filing that brief by 5/27/2005. After that date, no further extension will be granted.
|May 26 2005||Application to file over-length brief filed|
to file appellant's reply brief. (66,057 word brief submitted under separate cover)
|Jun 2 2005||Compensation awarded counsel|
|Jun 3 2005||Order filed|
Appellant's application for leave to file reply brief in excess of word count limit is granted.
|Jun 3 2005||Appellant's reply brief filed|
(66,057 words; 185 pp.)
|Jun 6 2005||Filed:|
Letter from atty Spiegelman advising pages 86 and 272 missing from original copies of AOB. (pages 86 and 272 attached)
|Sep 6 2005||Received:|
copy of videotape from superior court which, according to a cover letter from the clerk, was ordered by the superior court on 12-3-2001 to be made part of the record.
|Sep 16 2005||Filed:|
errata letter from appellant re: reply brief, dated 9-14-2005.
|Feb 13 2007||Oral argument letter sent|
to counsel advising that the court could schedule this case for argument as early as the April calendar, to be held the week of April 2, 2007, in Los Angeles. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument.
|Feb 23 2007||Received:|
letter from DAG Sharlene Honnaka, dated February 21, 2007, requesting oral argument not be scheduled for April 5, or April, 6, 2007 nor the week of May 7-11, 2007.
|Mar 6 2007||Case ordered on calendar|
to be argued Wednesday, April 4, 2007, at 1:30 p.m., in Los Angeles
|Mar 12 2007||Received:|
letter from Deputy Attorney General Honnaka, dated March 8, 2007 re Augument II of respondent's brief.
|Mar 15 2007||Filed letter from:|
Deputy Attorney General Sharlene Honnaka, dated March 14, 2007 re focus issues for oral argument.
|Mar 15 2007||Received:|
letter from Deputy Attorney General Sharlene Honnaka, dated March 14, 2007 re "Supplemental authorities and corrections" for oral argument.
|Mar 16 2007||Filed letter from:|
attorney Paul J. Spiegelman, dated March 14, 2007, re focus issues for oral argument and request for 45 minutes for argument.
|Mar 19 2007||Motion filed (AA)|
appellant's "Application for Stay of Proceedings."
|Mar 20 2007||Filed:|
"Supplemental Declaration of Service by Mail" of appellant's focus issues letter.
|Mar 28 2007||Application for stay denied|
The application for stay of proceedings, filed on March 19, 2007, is denied.
|Mar 29 2007||Filed letter from:|
from atty Spiegelman, dated March 27, 2007, re typographical error in appellant's reply brief.
|Apr 4 2007||Cause argued and submitted|
|Apr 18 2007||Compensation awarded counsel|
|Jun 27 2007||Notice of forthcoming opinion posted|
|Jun 28 2007||Opinion filed: Judgment affirmed as modified|
The judgment is modified to reflect a sentence of life imprisonment with possibility of parole on count 4. The trial court is directed to send an amended abstract of judgment to the Department of Corrections and Rehabilitation in accordance with this modification. As so modified, the judgment is affirmed. opinion by Chin, J. ----- joined by George, C.J., Kennard, Baxter, Werdegar, Moreno and Corrigan, JJ.
|Jul 12 2007||Rehearing petition filed|
by Petitioner. (6,993 words; 21 pp.)
|Jul 17 2007||Time extended to consider modification or rehearing|
The time for granting or denying rehearing in the above-entitled case is hereby extended to and including September 26, 2007, or the date upon which rehearing is either granted or denied, whichever occurs first.
|Aug 15 2007||Rehearing denied|
The opinion is modified. The peittion for rehearing is denied.
|Aug 15 2007||Opinion modified - no change in judgment|
|Aug 15 2007||Remittitur issued (AA)|
|Aug 20 2007||Received:|
receipt for remittitur acknowledged by superior court.
|Aug 29 2007||Received:|
copy of letter from U.S.S.C.- case no. 07-6080 dated August 24, 2007, docket date for petition for writ of certiorari.
|Sep 21 2007||Order appointing Habeas Corpus Resource Center filed|
Upon request of condemned prisoner Mark Scott Thornton for appointment of counsel, the Habeas Corpus Resource Center is hereby appointed to represent Mark Scott Thornton for habeas corpus /executive clemency proceedings related to the above automatic appeal now final in this court. Any "petition for writ of habeas corpus will be presumed to be filed without substantial delay if it is filed . . . within 36 months" of this date (Supreme Ct. Policies Regarding Cases Arising From Judgments of Death, policy 3, timeliness std. 1-1.1), and it will be presumed that any successive petition filed within that period is justified or excused (see In re Clark (1993) 5 Cal.4th 750, 774-782) in light of this court's delay in appointing habeas corpus/executive clemency counsel on behalf of condemned prisoner Mark Scott Thornton.
|Nov 26 2007||Certiorari denied by U.S. Supreme Court|
|Nov 27 2007||Related habeas corpus petition filed (post-judgment)|
case no. S158512.
|Feb 18 2004||Appellant's opening brief filed|
|Oct 29 2004||Respondent's brief filed|
|Jun 3 2005||Appellant's reply brief filed|