Supreme Court of California Justia
Docket No. S046816
People v. Thornton

Filed 6/28/07



IN THE SUPREME COURT OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

S046816

v.

MARK SCOTT THORNTON,

) Ventura

County

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,

1

Unless otherwise indicated, all statutory references are to this code.

1


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

1. Overview

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.


2

In some cases, the statutory provisions have been renumbered or relettered

since 1993. We refer to the current statutory designations.

2

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

date.

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

staying.

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.

3

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

women.

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.

4

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

live together.

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.

5

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

6

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

7

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


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.)

8

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.”

4

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.

9

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

10

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

1. Overview

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

11

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.

12

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

ass.”

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

his bed.

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.

13

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.

b. Defendant’s

Stepfather

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

stepfather.

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

14

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

15

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

16

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.

e. Medical

Evidence

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

17

records he reviewed, he doubted that defendant’s birth caused him any brain

damage.

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

generally antisocial.

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

18

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

parent.”

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

average intelligence.

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.

19

II. DISCUSSION

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

review.

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

20

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

21

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

Constitutions.

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,

22

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

indictment.

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

23

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

(c).

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.”

24

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

25

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

26

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

27

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

conclusion.

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

28

checked that she would always vote for life imprisonment without possibility of

parole.

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

of parole.

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.

e. Conclusion

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

29

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

30

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

rehabilitate skeptics.

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


5

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.

31

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

32

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

the trial.

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

33

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

the record.

(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

34

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

35

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

defendant.

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

36

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.

37

The trial court found that she could not follow the law and granted the motion to

excuse her.

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

appeal.

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

38

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

section.

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

silencing O’Sullivan.

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

39

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

offense.

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

automobile.

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.

40

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.

5. Restricting

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

41

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

42

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

she did.

(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

43

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

witness’s recollection.

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.

44

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


6

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.)

45

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

defendant.

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

46

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

defendant.

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

47

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

48

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

same reason.

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

49

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-

50

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.

7. Instructions

Bearing

on Special Circumstances

Defendant claims that a series of instructional errors led to erroneous true

findings on the special circumstances. We disagree.7


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.)

51

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.)
8

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.

52

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

53

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

54

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.

55

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

56

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

57

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.

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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

59

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,

347.)

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

60

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.)

2. Ruling

Against

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

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described as “a panel of persons consisting of such people as parents and school

psychologists.”

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

62

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-

439.)

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

63

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-

examination.

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.

433-439).

We turn to each item of evidence at issue.

64

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

65

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

deficit disorder.

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.

66

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

disorder.”

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


9

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?

“Yes.
“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

assume.

“And did Mark also see Dr. Solow in regard to the dog bite in 1981?
“Yes.
“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.”

67

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

precise ground.

“ ‘ “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

68

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’s Presence

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

69

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

witness it.

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

old.

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

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Panelli, J.); People v. Medina (1990) 51 Cal.3d 870, 890.) We find no abuse of

discretion.

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

proffered evidence.

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

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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

medical opinion.

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.

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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

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S.’s own testimony, the trial court could reasonably have excluded the letters as

cumulative.

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.

f.

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.)

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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

him.

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

Siys:

“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.”

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“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.

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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.

i. Cumulative

Error

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

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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

was harmless.

4. Prosecutorial

Misconduct

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

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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].)

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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

testimony.

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.)

b. Purported

Sarcasm

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

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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

sympathy.

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.

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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.)

e. Adolescent

Misconduct

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

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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

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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,

635.)

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

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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.

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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

Penalty Phase

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

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followed immediately after the trial court overruled defendant’s objection to the

first. Defendant has preserved his claims for review with regard to both

prosecutorial remarks.

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

Amendments.

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

87

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,

88

Keith C. took his seat as a member of the jury and the parties proceeded with

closing argument.

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

89

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

90

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.

a. Evidentiary

Issue

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

91

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.)

b. Instructional

Issues

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

92

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.

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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.

1988).)

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

94

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.

95

“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.

96

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].)

97

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,

619.)

98

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,

221-222.)

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,

299.)

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

99

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

100

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.

III. CONCLUSION

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.

CHIN,

J.

WE CONCUR:

GEORGE, C.J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
MORENO, J.
CORRIGAN, J.

101



See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Thornton
__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No.
S046816
Date Filed: June 28, 2007
__________________________________________________________________________________

Court:
Superior
County: Ventura
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
(858) 452-7121

Sharlene A. Honnaka
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
(213) 897-2356


Opinion Information
Date:Docket Number:
Thu, 06/28/2007S046816

Parties
1The People (Respondent)
Represented by Sharlene A. Honnaka
Attorney General's Office
300 S. Spring Street, Suite 500
Los Angeles, CA

2The People (Respondent)
Represented by Attorney General - Los Angeles Office
Michael Wise, Deputy Attorney General
300 S. Spring Street, Suite 500
Los Angeles, CA

3Thornton, 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

4Thornton, Mark Scott (Appellant)
San Quentin State Prison
Represented by Paul J. Spiegelman
Attorney at Law
P.O. Box 22575
San Diego, CA


Disposition
Jun 28 2007Opinion: Affirmed as modified

Dockets
May 15 1995Judgment of death
 
May 30 1995Filed certified copy of Judgment of Death Rendered
  5-15-95.
Aug 5 1999Filed:
  appellant's application for appointment of counsel (IFP form).
Aug 12 1999Compensation awarded counsel
  Atty Spiegelman
Aug 12 1999Counsel 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 1999Received letter from:
  Superior Court, dated 10/29/99, Advising Record Was mailed to Applt's Counsel on 10/29/99.
Jan 31 2000Application for Extension of Time filed
  By Applt to request Corr. of the Record.
Feb 4 2000Extension of Time application Granted
  To 3/31/2000 To Applt To request Corr. of the Record.
Mar 27 2000Application for Extension of Time filed
  By Applt to request Corr. of the Record.
Mar 28 2000Extension of Time application Granted
  To 5/30/2000 To Applt To request Corr. of the Record.
May 25 2000Application for Extension of Time filed
  By Applt to request Corr. of the Record.
May 26 2000Extension of Time application Granted
  To 7/31/2000 To Applt To request Corr. of the Record.
Jul 6 2000Counsel's status report received (confidential)
  from atty Spiegelman.
Jul 27 2000Application for Extension of Time filed
  By applt to request corr. of the record. (4th request)
Aug 1 2000Extension of Time application Granted
  to applt to 9-29-2000 to request correction of the record.
Sep 8 2000Counsel's status report received (confidential)
  from atty Spiegelman.
Sep 26 2000Application for Extension of Time filed
  By applt to request corr. of the record (5th request)
Sep 29 2000Extension 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 2000Counsel's status report received (confidential)
  from atty Spiegelman.
Nov 22 2000Application for Extension of Time filed
  By applt to request corr. of the record. (6th request)
Dec 18 2000Extension 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 2001Counsel's status report received (confidential)
  from atty Spiegelman.
Jan 22 2001Application for Extension of Time filed
  By apptl to request corr. of the record. (7th request)
Jan 29 2001Extension of Time application Granted
  To 3/30/2001 to applt to request corr. of the record.
Mar 8 2001Counsel's status report received (confidential)
  from atty Spiegelman.
Mar 27 2001Application for Extension of Time filed
  By applt. to request corr. of the record. (8th request)
Mar 29 2001Extension of Time application Granted
  To 5/29/2001 to applt. to request corr. of the record.
May 8 2001Counsel's status report received (confidential)
  from atty Spiegelman.
May 23 2001Application for Extension of Time filed
  By applt. to request corr. of the record. (9th request)
May 29 2001Extension 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 2001Counsel's status report received (confidential)
  from atty Spiegelman.
Aug 3 2001Received copy of appellant's record correction motion
  applt's motion for correction, augmentation and to settle the record on appeal. (53 pp.)
Aug 29 2001Compensation awarded counsel
  Atty Spiegelman
Sep 7 2001Counsel's status report received (confidential)
  from atty Spiegelman.
Nov 26 2001Counsel's status report received (confidential)
  from atty Spiegelman.
Jan 7 2002Counsel's status report received (confidential)
  from atty Spiegelman.
Mar 13 2002Counsel's status report received (confidential)
  from atty Spiegelman.
May 16 2002Counsel's status report received (confidential)
  from atty Spiegelman.
Jun 26 2002Compensation awarded counsel
  Atty Spiegelman
Jul 10 2002Counsel's status report received (confidential)
  from atty Spiegelman.
Jul 18 2002Note:
  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 2002Record 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 2002Appellant's opening brief letter sent, due:
  October 7, 2002.
Sep 11 2002Counsel's status report received (confidential)
  from atty Spiegelman.
Oct 4 2002Compensation awarded counsel
  Atty Spiegelman
Oct 11 2002Request for extension of time filed
  To file appellant's opening brief. (1st request)
Oct 17 2002Extension of time granted
  To 12/6/2002 to file appellant's opening brief.
Nov 14 2002Counsel's status report received (confidential)
  from atty Spiegelman.
Dec 3 2002Request for extension of time filed
  To file appellant's opening brief. (2nd request)
Dec 5 2002Extension of time granted
  To 2/4/2003 to file appellan't opening brief.
Jan 30 2003Request for extension of time filed
  to file AOB. (3rd request)
Jan 30 2003Counsel's status report received (confidential)
  from atty Spiegelman.
Feb 3 2003Extension 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 2003Request for extension of time filed
  to file appellant's opening brief. (4th request)
Apr 4 2003Extension 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 2003Counsel's status report received (confidential)
  from atty Spiegelman.
May 30 2003Request for extension of time filed
  to file appellant's opening brief. (5th request)
Jun 4 2003Extension 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 2003Request for extension of time filed
  to file AOB. (6th request)
Jul 28 2003Counsel's status report received (confidential)
  from atty Spiegelman.
Jul 31 2003Extension 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 2003Compensation awarded counsel
  Atty Spiegelman
Oct 6 2003Counsel's status report received (confidential)
  from attorney Spiegelman.
Oct 9 2003Request for extension of time filed
  to file appellant's opening brief. (7th request)
Oct 14 2003Compensation awarded counsel
  Atty Spiegelman
Oct 17 2003Extension 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 2003Request for extension of time filed
  to file AOB. (8th request)
Dec 11 2003Extension 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 2004Request for extension of time filed
  to file appellant's opening brief. (9th request)
Jan 16 2004Extension 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 2004Application 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 2004Order filed
  The application of appellant for leave to file appellant's opening brief in excess of the word count limit is granted.
Feb 18 2004Appellant's opening brief filed
  (134,569 words - 364 pp.)
Feb 25 2004Compensation awarded counsel
  Atty Spiegelman
Mar 15 2004Request for extension of time filed
  to file respondent's brief. (1st request)
Mar 17 2004Extension of time granted
  to 5/18/2004 to file respondent's brief.
May 6 2004Request for extension of time filed
  to file respondent's brief. (2nd. request]
May 12 2004Extension 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 2004Request for extension of time filed
  to file respondent's brief. (3rd. request)
Jul 15 2004Extension 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 2004Request for extension of time filed
  to file respondent's brief. (4th request)
Sep 10 2004Extension 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 2004Respondent's brief filed
  (83,793 words; 286 pp.)
Nov 17 2004Request for extension of time filed
  to file appellant's reply brief. (1st request)
Nov 18 2004Extension of time granted
  to 1/18/2005 to file appellant's reply brief.
Jan 13 2005Request for extension of time filed
  to file appellant's reply brief. (2nd request)
Jan 20 2005Extension 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 2005Request for extension of time filed
  to file appellant's reply brief. (3rd request)
Mar 22 2005Extension 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 2005Application to file over-length brief filed
  to file appellant's reply brief. (66,057 word brief submitted under separate cover)
Jun 2 2005Compensation awarded counsel
  Atty Spiegelman
Jun 3 2005Order filed
  Appellant's application for leave to file reply brief in excess of word count limit is granted.
Jun 3 2005Appellant's reply brief filed
  (66,057 words; 185 pp.)
Jun 6 2005Filed:
  Letter from atty Spiegelman advising pages 86 and 272 missing from original copies of AOB. (pages 86 and 272 attached)
Sep 6 2005Received:
  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 2005Filed:
  errata letter from appellant re: reply brief, dated 9-14-2005.
Feb 13 2007Oral 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 2007Received:
  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 2007Case ordered on calendar
  to be argued Wednesday, April 4, 2007, at 1:30 p.m., in Los Angeles
Mar 12 2007Received:
  letter from Deputy Attorney General Honnaka, dated March 8, 2007 re Augument II of respondent's brief.
Mar 15 2007Filed letter from:
  Deputy Attorney General Sharlene Honnaka, dated March 14, 2007 re focus issues for oral argument.
Mar 15 2007Received:
  letter from Deputy Attorney General Sharlene Honnaka, dated March 14, 2007 re "Supplemental authorities and corrections" for oral argument.
Mar 16 2007Filed 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 2007Motion filed (AA)
  appellant's "Application for Stay of Proceedings."
Mar 20 2007Filed:
  "Supplemental Declaration of Service by Mail" of appellant's focus issues letter.
Mar 28 2007Application for stay denied
  The application for stay of proceedings, filed on March 19, 2007, is denied.
Mar 29 2007Filed letter from:
  from atty Spiegelman, dated March 27, 2007, re typographical error in appellant's reply brief.
Apr 4 2007Cause argued and submitted
 
Apr 18 2007Compensation awarded counsel
  Atty Spiegelman
Jun 27 2007Notice of forthcoming opinion posted
 
Jun 28 2007Opinion 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 2007Rehearing petition filed
  by Petitioner. (6,993 words; 21 pp.)
Jul 17 2007Time 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 2007Rehearing denied
  The opinion is modified. The peittion for rehearing is denied.
Aug 15 2007Opinion modified - no change in judgment
 
Aug 15 2007Remittitur issued (AA)
 
Aug 20 2007Received:
  receipt for remittitur acknowledged by superior court.
Aug 29 2007Received:
  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 2007Order 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 2007Certiorari denied by U.S. Supreme Court
 
Nov 27 2007Related habeas corpus petition filed (post-judgment)
  case no. S158512.

Briefs
Feb 18 2004Appellant's opening brief filed
 
Oct 29 2004Respondent's brief filed
 
Jun 3 2005Appellant's reply brief filed
 
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