Citation 50 Cal. 4th 1228, 242 P.3d 68, 117 Cal. Rptr. 3d 615
People v. Timothy Russell
Filed 11/15/10
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S075875
v.
TIMOTHY RUSSELL,
Riverside County
Defendant and Appellant.
Super. Ct. No. RIF72974
On September 4, 1998, a jury convicted Timothy Russell of the murders of
Riverside County Sheriff‟s Deputies Michael Haugen and James Lehmann (Pen. Code,1
§ 187). The jury found true a sentencing enhancement allegation that defendant had used
a rifle during the commission of the murders (§§ 12022.5, subd. (a), 1192.7, subd. (c)(8));
and found true a special circumstance allegation that defendant had intentionally killed
Deputies Haugen and Lehmann during the performance of their duties as peace officers
(§ 190.2, subd. (a)(7)), and a multiple-murder special-circumstance allegation (§ 190.2,
subd. (a)(3)). The first penalty phase resulted in a mistrial. After a penalty retrial, the
jury returned a verdict of death. The trial court denied defendant‟s motions for a new
trial and for modification of the sentence, and sentenced defendant to death on both
counts. The court also imposed four-year determinate sentences on both counts for
1
All further statutory references are to the Penal Code unless otherwise indicated.
1
defendant‟s personal use of a firearm, to run concurrent with the imposition of the death
sentences. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment.
I. BACKGROUND
A. Guilt Phase
1. Prosecution Evidence
Defendant and his wife, Elaine Russell, had a tumultuous and violent relationship.
Early in the couple‟s relationship, defendant had a particularly violent encounter with his
wife in which he threw furniture, ripped the phone cord from the wall, choked his wife,
and held a gun to her head. During this incident, defendant told his wife that if she called
the police, he would kill both her and the police.
In the early morning hours of Friday, January 3, 1997, following the years-long
deterioration of the marriage, Elaine confronted defendant with her suspicion that he was
using drugs. Defendant and Elaine had both previously used methamphetamine. Elaine
asked defendant to leave the house the couple shared with their two children; defendant
acquiesced. Defendant spent the rest of that night in the sign shop where he worked and
sought the advice of his old friend, Jeffrey Alleva, later that day. Defendant and Alleva
had not been in contact recently, although they had formerly been close friends.
Alleva testified that defendant appeared sad and concerned and indicated to Alleva
that he needed to make changes and get his life in order. Defendant returned the next day
and they discussed what defendant needed to do to get his life “back on track.”
Defendant left Alleva‟s home the evening of January 4, 1997, between 8:00 and 10:00
p.m. A bartender at the Red Barn bar in Palm Desert recalled defendant‟s arriving
around 10:30 or 11:00 p.m. that same night. Defendant was quiet, drank three or four
beers, and left the bar a few hours later. At 2:30 a.m. on January 5, 1997, defendant
returned to the home he shared with Elaine, waking his sister-in-law, Beverly Brown,
who was staying at the house. He asked Brown if he could talk with her; she agreed.
2
Brown noted that defendant was “a little” intoxicated and appeared angry or disturbed,
but defendant‟s affect did not cause Brown concern.
During his 10-minute conversation with Brown, defendant drank from a large
bottle of beer. Brown later testified that defendant became more agitated, raised his
voice, made large gestures, and made statements about his wife that Brown viewed as
inappropriate. Defendant‟s conversation with Brown eventually woke Elaine and the
couple‟s two children. Elaine emerged from her bedroom and asked defendant to leave,
which caused defendant to become more agitated. Elaine left the room briefly; upon her
return, defendant kicked her and threw her to the floor. Elaine begged for defendant to
leave the house. Defendant finally agreed to leave. He tore the telephone wire out of the
wall on his way out, yelling at Elaine and Brown “not to f--k with his job, his life, and not
to call the cops.”
After defendant left, Elaine quickly went to the house of her neighbors, John and
Twilla Gideon, to call the police. Shortly thereafter, defendant returned to his house with
an unloaded M-1 rifle, asking Brown where the bullets to the gun were located. Brown
initially told defendant that she did not know, but after defendant threatened to kill
Brown, she relented and told defendant where to find the bullets. Defendant had a
history of recreational gun use and was proficient with the guns he owned, which
included a .22-caliber Uzi firearm and the M-1 rifle. Defendant used the guns in target
practice, and was described as a “very good shot.”
Defendant threatened to hold Brown hostage because he knew Elaine was calling
the police. He said that he would kill Brown if necessary. Defendant walked outside and
fired his gun four or five times. Brown testified that defendant came back inside, telling
her to get out because the police were on their way and he was “going to kill [the
police].” Brown testified that defendant told her to take the kids and run. Brown took
the children to the Gideons‟ house.
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Brown noticed a police car arriving as she ran across to the Gideons‟ home. She
took the children to the safety of the master bedroom at the rear of the Gideons‟ home,
and shortly she thereafter heard around six shots fired. After the shooting ceased, she and
the Gideons crept to the front of the house to see what had happened. They looked
through the kitchen window and saw lying in the street the bodies of Riverside County
Sheriff‟s Deputies Michael Haugen and James Lehmann, who had been dispatched to
respond to Elaine‟s call.
Deputy Lehmann had been shot in the head. Deputy Haugen had been shot in the
chest and toe. Both men were dead by the time the next responding officer, Deputy Mark
Smith, arrived at the scene. Both still had their weapons holstered.
Following the shooting, defendant ran into the desert; in the morning, between
7:00 and 7:30 a.m., he emerged from the desert and was arrested without incident.
Defendant admitted firing shots in the air in front of the deputies, but said that he only
shot to “scare” them.
Defendant made a number of statements to police concerning the shooting.
Defendant first spoke with Senior Detective Eric Spidle the morning of January 5, 1997.
Defendant offered to show Detective Spidle where he had dropped his gun, and the two
drove into the desert where defendant showed Detective Spidle where he had placed the
gun and ammunition. The weapon and other evidence were recovered, and defendant
was taken to the Riverside County Sheriff‟s station, where his clothing was taken, his
blood analyzed, and his body tested for gunshot residue. When defendant was taken into
custody, he had no methamphetamine, cocaine, opiates, alcohol or lithium in his blood.
He had an injury and blood on the right side of his face. An expert presented testimony
that the gunshot residue found on defendant‟s hand and face at that time had a “very
similar chemical composition” to the residue on the expended cartridges found at the
4
scene of the crime. The gunshot residue found on defendant‟s face indicated the gun had
been held close to his face when it was being fired.
Defendant initially declined to be interviewed, but later changed his mind and
gave a videotaped interview after waiving his Miranda rights. (Miranda v. Arizona
(1966) 384 U.S. 436.) Defendant spoke at length about his deteriorating relationship with
his wife, who had admitted to cheating on defendant and had left the couple‟s home with
their children. About six months prior to the shootings, Elaine called defendant and
asked if she and the children could return to the couple‟s home; defendant agreed. Prior
to Elaine‟s return, defendant had been attending Alcoholics Anonymous meetings and
felt like he was “able to handle life”; following Elaine‟s return home, defendant began
drinking again.
Defendant explained that he was intoxicated on the night of the shooting, having
consumed about a 12-pack of beer. After fighting with his wife, defendant had left, then
returned to his house with his unloaded gun and coerced Brown into giving him the
ammunition she and Elaine had hidden. Defendant looked out the window and saw that
the police were coming; he thought he was a “dead man” and “just felt it was all over.”
Defendant turned the lights off and left the house, hoping he could “sneak past” the
officers. He was surprised that he could see the silhouettes of the officers, and was
concerned that they could also see him. Defendant planned to fire shots in front of the
officers to “scare ‟em off” so that they would “run back the other way.” Defendant fired
several shots from a crouched position without sighting through the rifle scope, then ran
into the desert. He did not know he had killed the officers until he was told by the
interrogating officer.
Officers investigating the scene found defendant‟s gun in the location he had
pointed out, with one live round in it and three magazines lying underneath it. While
examining the scene, investigators found two groupings of 30-caliber shell casings
5
around the same location, indicating that four rounds had been discharged at one target
and eight rounds had been fired at a second target. Five more shell casings were found in
the front yard of defendant‟s home.
The prosecution presented testimony from a forensic pathologist, who stated that
the entrance trajectories of Deputy Lehmann‟s and Deputy Haugen‟s wounds were
inconsistent with a hypothesis that the injuries resulted from ricocheted bullets. The
trajectory of the bullet that killed Deputy Lehmann was slightly front-to-back, left-to-
right, and slightly downward. Deputy Haugen‟s wound was consistent with the bullet‟s
passing through his bulletproof vest before entering his chest, which only high-velocity
projectiles are capable of doing.
2. Defense Evidence
The defense presented three witnesses during the guilt phase of the trial. Riverside
County Sheriff‟s Sergeant David Wilson, a forensic supervisor who was at the crime
scene when defendant reenacted the shootings, testified that he heard defendant state that
he had been running southbound on a dirt road, had seen the deputies walk into the
intersection and approach his home, and that he pointed his gun at the ground near the
deputies and started shooting. Defendant said that he saw sparks, which might have been
his shots ricocheting off the asphalt, and that he did not see the deputies after he fired the
shots.
Charles Darnell, a retired army officer with 22 years of service, reviewed
defendant‟s military record, and testified that defendant, who had been training to be a
medic, had received only the basic level of weapons training that all soldiers receive.
Defendant had the qualification of “marksman,” the lowest qualification level a soldier
could receive, and would have been trained using an M-16 rifle, rather than an M-1,
which was used in the shooting. Darnell, who was familiar with the M-1, testified that
the M-1 skews to the right when shot by a right-handed person and is not regarded as a
6
sniper weapon, because it lacks the control and accuracy required for sniping. He also
stated that the more rapidly shots are fired after the first shot, the less control a shooter
has over the M-1. Kneeling or crouching would improve the accuracy of the shooter
compared to shooting while standing.
Detective Eric Spidle, the prosecution‟s investigating officer, testified for the
defense that in test-firing the M-1 for speed, he expended 12 rounds in 4.85 seconds and
2.9 seconds in two different tests. In a third test, he deliberately fired more slowly, and
expended 12 rounds in 10 seconds. The test measured timing, and not accuracy.
3. Rebuttal Evidence
The Riverside County Sheriff‟s Department tested defendant‟s M-1 rifle in the
condition it was in when received. Twelve shots were fired from a distance of 132 feet,
and the rounds hit the target slightly high and to the left.
B. First Penalty Phase
1. Prosecution Evidence
The prosecution presented victim impact evidence from friends of the deceased
officers and members of their families. Deputy Haugen‟s wife, Elizabeth, described the
devastating effect her husband‟s death had on her and their two children, Katy and
Stephen. The Haugens‟ niece, Jacqueline Mangham, provided more testimony relating to
the impact of the death on Elizabeth and Stephen Haugen. Deputy Haugen‟s father-in-
law, Geoffrey Mangham, stated that his wife grew ill after the funeral as a result of stress
surrounding the death.
Deputy Lehmann‟s wife, Valerie, described the effect of his death on her and their
children, six-year-old Ashley and 10-year-old Christopher. Deputy Lehmann‟s brother-
in-law, James Odam, gave further testimony as to the death‟s impact on Christopher, who
had become an angry child.
7
2. Defense Evidence
The defense presented several witnesses during the first penalty phase. Gordon
Young, a pastor at defendant‟s church who had provided counseling to defendant and his
wife, testified that defendant had made sincere efforts to reform his life and improve his
marriage. Melvin Wachs, who employed defendant as a sign painter, testified that
defendant had been one of his best employees. Wachs stated that defendant was
generally punctual and got along with the other employees. In the period leading up to the
homicides, Wachs testified that defendant seemed indecisive, and he appeared to be
reaching out for help.
Detective Spidle testified to defendant‟s actions at the time of the arrest. Spidle
stated that when he told defendant that the deputies were dead, defendant “tilted his head
back, closed his eyes, became a little teary-eyed [and his] emotion changed a bit.” He
confirmed that he had described defendant in his report as “visibly emotional.”
Defendant‟s mother, Lucille Williams, gave testimony as to the difficulties
defendant faced while growing up. Williams testified that defendant‟s father was an
alcoholic who died when defendant was 10 years old; Williams‟s subsequent husband
abused defendant. Defendant behaved poorly while in school, dropped out, and joined
the army at age 17. Williams testified that defendant was “totally changed” and began
having mood swings after being the victim of a beating and robbery in which he suffered
severe head trauma. Defendant had problems with alcohol after leaving the army.
Williams testified that defendant‟s arrest was difficult for her, and that the arrest
impacted his children. She stated that she did not believe defendant would intentionally
take a life.
C. Penalty Retrial
With respect to the circumstances of the crime, most of the evidence presented at
the penalty phase retrial was the same as the evidence presented during the original guilt
8
phase. At the retrial, however, defendant‟s videotaped statements made following the
shooting were not played. Instead, Detective Spidle testified about defendant‟s
statements and his demeanor following the shootings. Additional forensic evidence was
presented regarding the test-firing of defendant‟s M-1 rifle. Forensic scientist Richard
Whalley testified that the gun fired five inches high and to the left, and if the gun was not
lowered between each shot, the recoil caused the gun to elevate, increasing the angle of
each subsequent shot. Mr. Whalley also testified that he conducted firing tests from
heights of 32 and 42 inches from the ground, and the expended shell casings fell from the
weapon in a 20-inch circle and a 17- to 19-inch circle, respectively.
1. Prosecution Evidence
The prosecution again presented evidence regarding the impact of Deputies
Haugen‟s and Lehmann‟s deaths on their friends and family. Deputy Haugen‟s wife,
Elizabeth, again testified regarding her 15-year relationship with her husband, how hard
he had worked to gain acceptance into, and successfully complete, the police academy,
and his devotion to his career. Deputy Haugen‟s niece also testified for a second time,
relaying the contents of a letter Deputy Haugen had sent to her shortly before his death
about his experience as a police officer.
Elizabeth Haugen learned of her husband‟s death from her neighbor, whose
husband also worked for the sheriff‟s department. Stephen, Deputy Haugen‟s 10-year-
old son, was very upset following his father‟s death; his grades slipped, his behavior
became problematic, and eventually he decided to attend a boarding school to avoid
being at his house. At the time of the penalty retrial, Stephen had been seeing a
psychologist, taking antidepressants, and preferred living at a boarding school to living
at his former home.
Deputy Lehmann‟s wife, Valerie, also testified again about her over-20-year
relationship with her husband and the devastating impact of his death on her and their
9
two children. Upon learning of her husband‟s death, Valerie became hysterical, called
her family for help, and ran to a neighbor‟s house seeking assistance. When she
returned to her home a short while later, she found her children hysterical after they had
been told that their father was dead. Christopher, Deputy Lehmann‟s 10-year-old son,
became an angry and agitated child following his father‟s death, and began having
seizures shortly after his father‟s death. Ashley, Deputy Lehmann‟s six-year-old
daughter, also became a very emotional child following her father‟s death and would not
mention his name.
2. Defense Evidence
The defense presented evidence from Edward Verde, M.D., of the Veterans
Administration medical center, who had no recollection of defendant but testified
regarding his medical records. Dr. Verde testified that defendant was diagnosed with
drug and alcohol dependence in 1984, and was treated, off and on, for a period of five
months. Defendant failed to complete an addiction treatment program during that time.
He returned to the hospital for treatment in August 1984, but was not admitted. For a
three-month period between November 1986 and January 1987, defendant again
attempted to, but did not, complete an addiction treatment program at the hospital.
In March and April 1996, defendant returned to the Veterans Administration
medical center, where he was diagnosed with amphetamine, alcohol, and marijuana
dependency. Defendant complained of “feeling agitated” and having mood swings.
Defendant was prescribed a low dose of lithium to control his mood swings, but failure to
take the lithium would not have caused any adverse effects in light of the low dosage and
brief duration of use. Defendant‟s chart indicated that he had had “homicidal ideations
towards people who had betrayed him, but displayed no definite [plans]. He also
displayed impulsivity — a lack of planning.”
10
Jeffrey Alleva, who originally testified for the prosecution, testified for defendant
at the penalty phase retrial. Alleva‟s testimony, concerning defendant‟s demeanor in the
days leading up to the shootings, did not deviate from his previous testimony.
Defendant‟s previous employer, David Wakefield, testified that defendant was a
normal, trustworthy employee. Wakefield testified that Elaine Russell had a verbal
altercation with defendant while he was at work, and defendant called shortly thereafter
and quit. Defendant‟s employer at the time of the shooting, Melvin Wachs, testified
again on defendant‟s behalf, providing much the same testimony as he did at the first
penalty phase trial. On the Friday before the shootings, while discussing his marital
problems, defendant mentioned that he felt as though his wife had been putting “speed”
in his coffee.
Defendant‟s mother testified on defendant‟s behalf at the second penalty phase
trial; her testimony was consistent with her earlier statements. Pastor Gordon Young
again testified on defendant‟s behalf, largely reiterating his earlier testimony, and adding
that once defendant gave Pastor Young an army rifle for safekeeping. Pastor Young also
stated that he felt defendant made himself look better during counseling sessions by
“fudging” the truth.
Detective Spidle offered testimony regarding defendant‟s statements to police
following the shootings. Detective Spidle testified that defendant became “a little teary
eyed” upon learning that Deputies Lehmann and Haugen were dead. Detective Spidle
testified concerning the extent of defendant‟s cooperation with police — that defendant
showed police the location where he had dropped the rifle, and agreed to be interviewed
at the scene and at the police station. Detective Spidle stated that defendant was
cooperative, and appeared regretful.
11
II. DISCUSSION
A. Guilt Phase
1. Alleged Instructional Error on Lying in Wait as Theory of Murder
Defendant alleges that the trial court erroneously instructed the jury on the lying-
in-wait theory of murder. He further alleges that the prosecutor improperly suggested
that the jury could convict defendant of first degree murder based upon a lying-in-wait
theory even if the jury believed defendant‟s account of the facts, which showed that no
substantial period of watching and waiting occurred prior to the shooting. Defendant
claims the prosecutor‟s suggestion, coupled with instructional error, violated defendant‟s
rights to due process and a fair trial under the state and federal Constitutions. Defendant
suggests his conviction is based potentially upon an erroneous theory of murder and must
be reversed because it cannot be determined whether the jury relied on a legally adequate
or inadequate theory to convict him of first degree murder.
During his interviews with Detective Spidle following the shootings, defendant
explained that he saw the officers approaching, “saw the silhouette of them, and I thought
well if I shoot in front of [them] . . . they‟ll run back the other way.” Defendant then
claims he “took off” running. When pressed later in the interview regarding the
circumstances surrounding the shooting, defendant explained that his initial plan was to
sneak past the officers. Defendant revised his plan when he realized he could see the
officers and became concerned that they could also see him. Acknowledging that his
initial plan of running past the officers would not help him evade detection, defendant
explained that he crafted a new plan to run away from the officers and “put a line of fire
down in front of [the officers] to turn them back.” Defendant either slowed down or
stopped while running away from the officers, aimed “in the general direction” of the
officers‟ silhouettes, and shot at them a number of times.
12
The jury was instructed on the elements of first degree murder by lying in wait
pursuant to CALJIC No. 8.25, and received a special instruction regarding lying-in-wait
murder pursuant to defendant‟s request. CALJIC No. 8.25 defines murder by lying in
wait “as a waiting and watching for an opportune time to act, together with a concealment
by ambush or by some other secret design to take the other person by surprise [even
though the victim is aware of the murderer‟s presence]. The lying in wait need not
continue for any particular period of time provided that its duration is such as to show a
state of mind equivalent to premeditation or deliberation. [¶] [The word „premeditation‟
means considered beforehand.] [¶] [The word „deliberation‟ means formed or arrived at
or determined upon as a result of careful thought and weighing of considerations for and
against the proposed course of action.]” (CALJIC No. 8.25, brackets in original.)
Defendant requested that the jury receive a special instruction regarding lying in
wait. The court incorporated two paragraphs of defendant‟s requested special instruction
into the instructions given to the jury; the court found that the remaining portion of the
requested instruction was not a correct statement of the law.2 Accordingly, the jury was
instructed that “[i]n order to establish First Degree Murder based upon lying-in-wait, the
perpetrator must exhibit a state of mind equivalent to, but not identical to, premeditation
and deliberation. This state of mind is the intent to watch and wait for the purpose of
gaining an advantage in taking the victim unawares in order to facilitate the act which
constitutes murder. The concealment which is required is that which puts the defendant
2
The rejected portion of defendant‟s requested instruction stated, “To establish
murder by lying-in-wait the prosecution must prove the elements of concealment of
purpose together with „a substantial period of watching and waiting for an opportune time
to act, and . . . immediately thereafter, a surprise attack on an unsuspecting victim from a
position of advantage‟ ” (relying on and citing People v. Ruiz (1988) 44 Cal.3d 589, 615,
and People v. Mattison (1971) 4 Cal.3d 177, 183).
13
in a position of advantage from which one can infer that the principal act of lying-in-wait
was part of the defendant‟s plan to take the victims by surprise. It does not include the
intent to kill or injure the victim. In order to establish Lying in wait Murder, the
prosecution must prove the crime involved the unlawful killing of a human being with
malice aforethought. Malice may be express or implied.” (Italics added.) During its
deliberations, the jury requested clarification of the special instruction, noting that
CALJIC No. 8.25 defined the requisite mental state as one akin to “premeditation or
deliberation” while the special instruction defined the state of mind as equivalent to
“premeditation and deliberation.” (Italics added.) The court properly responded that the
instructions should both be in the disjunctive. Shortly thereafter the jury returned its
guilty verdicts on both counts of murder.
Defendant claims that there was insufficient evidence to establish that a substantial
period of watching and waiting, a necessary element of lying-in-wait murder, occurred in
this case. Defendant suggests that the prosecutor‟s argument that the jury could believe
defendant‟s story and nonetheless convict him of lying-in-wait murder was erroneous
because defendant would have had “at most a few seconds” to decide on his course of
conduct, which defendant suggests is insufficient to constitute a substantial period of
watching and waiting. Defendant also contends that the jury instructions concerning
lying-in-wait murder were inadequate because they did not convey that the period of
watching and waiting must be substantial. Because the jury may have convicted
defendant based on a legally erroneous theory of lying-in-wait murder, defendant
contends, his conviction must be reversed. We find no error concerning the sufficiency
of evidence or jury instruction; accordingly, reversal is not required.
As a preliminary matter, we conclude that the jury instruction concerning lying-in-
wait murder was adequate. Section 189 provides, in pertinent part, that “murder which is
perpetrated by . . . lying in wait . . . is murder of the first degree.” Lying-in-wait murder
14
3
consists of three elements: “ „ “(1) a concealment of purpose, (2) a substantial period of
watching and waiting for an opportune time to act, and (3) immediately thereafter, a
surprise attack on an unsuspecting victim from a position of advantage . . . .”
[Citations.]‟ ” (People v. Cruz (2008) 44 Cal.4th 636, 679.) We have repeatedly held
that CALJIC No. 8.25 adequately conveys to a jury the elements of lying-in-wait murder.
(People v. Moon, supra, 37 Cal.4th at p. 23; People v. Ceja, supra, 4 Cal.4th at p. 1139
[“we have repeatedly upheld the instruction, and continue to do so”]; see People v. Hardy
(1992) 2 Cal.4th 86, 161-163; People v. Ruiz, supra, 44 Cal.3d at pp. 613-615.)
Defendant argues that the instruction was inadequate because it failed to convey
that the period of watching and waiting must have been “substantial.” We considered
and rejected a similar claim in People v. Moon. There, we noted that “[a]lthough we
have held the period of watchful waiting must be „substantial‟ [citation], we have never
placed a fixed time limit on this requirement. Indeed, the opposite is true, for we have
previously explained that „[t]he precise period of time is also not critical.‟ (People v.
Ceja (1993) 4 Cal.4th 1134, 1145.) . . . [A] few minutes can suffice.” (People v. Moon,
supra, 37 Cal.4th at p. 23; see also People v. Edwards (1991) 54 Cal.3d 787, 823 [“We
have never required a certain minimum period of time, only a period not insubstantial.
The instructions sufficiently convey this meaning.”].)
3
We note that first degree murder committed by means of lying in wait, at issue
here, is distinct from intentional murder while lying in wait, as required by the related but
distinct special circumstance not alleged here. (People v. Ceja (1993) 4 Cal.4th 1134,
1140, fn. 2.) Because the requirements of the special circumstance are more stringent
than the requirements of lying-in-wait murder, we have concluded that where substantial
evidence supports the former, it necessarily supports the latter. (People v. Moon (2005)
37 Cal.4th 1, 23.) We may look to analyses of the law of special circumstance cases even
when addressing lying-in-wait murder. (People v. Ceja, supra, 4 Cal.4th at p. 1140,
fn. 2.)
15
Defendant acknowledges that “no particular words are necessary” to convey that
the period of watching and waiting must be substantial, and agrees that the period can be
quite short. He argues, however, that although a few moments may be adequate, we have
never concluded that a few seconds constitutes a substantial period of watching and
waiting. While we have not previously considered this particular factual scenario, we
have held on numerous occasions that “[t]he precise period of time is . . . not critical. As
long as the murder is immediately preceded by lying in wait, the defendant need not
strike at the first available opportunity, but may wait to maximize his position of
advantage before taking his victim by surprise. In People v. Edwards, supra, 54 Cal.3d at
page 825, we found that evidence from which the jury could infer that the „defendant
waited and watched until the [victims] reached the place of maximum vulnerability before
shooting‟ supported a finding of lying in wait.” (People v. Ceja, supra, 4 Cal.4th at
p. 1145.)
Here, the jury may have concluded that defendant, in a rather short period of time,
assessed his options and decided to shoot at the officers. Before he made his decision to
shoot, however, defendant spent ample time planning his crime. He found bullets and
loaded his weapon. He became agitated, went outside, and fired several rounds before
returning to the house. He told Brown that he planned to kill the arriving officers. He
formulated a plan to leave the house and sneak away, which he revised upon discovering
that he could see the officers‟ silhouettes and becoming concerned that he was also
visible. He shot at the officers from a position of advantage before the officers had time
to even draw their weapons. Even a short period of time is sufficient to overcome an
inference that a defendant acted rashly. (People v. Stevens (2007) 41 Cal.4th 182, 203.)
In People v. Stevens, the defendant committed a series of shootings at drivers of vehicles
while driving his own vehicle. Immediately after completing one such shooting, the
defendant set his sights on his next victim. He sped up to meet that victim, made a
16
gesture requesting that his victim slow down, and once the victim did so, he shot the
victim. “Once the intended victim slowed down, the time to act became opportune.
Defendant stopped watching and started shooting. Such behavior is completely
consistent with, and provides substantial evidence for, the watching and waiting
element . . . .” (Ibid.) Like the defendant in People v. Stevens, defendant here quickly
formulated a plan, and then he “stopped watching and started shooting.” Defendant did
not act rashly; he acted quickly once he had opportunity to do so.
We conclude that the evidence was sufficient to support the lying-in-wait theory of
first degree murder, and the instructions adequately conveyed the elements of the crime.
Because we find no error, we conclude that the jury‟s conviction was necessarily based
on a legally adequate theory of murder and reversal is not warranted.
2. Allegedly Erroneous Denial of Guilt and Penalty Phase Motions to Have
Jury View Scene of Shooting
Defendant alleges that the trial court erroneously denied his guilt and penalty
phase motions to have the jury view the scene of the murder, in violation of article I,
section 28 of the California Constitution as well as the Fifth, Sixth, and Fourteenth
Amendments to the United States Constitution. Before the beginning of the guilt phase,
defendant filed a motion requesting that the jury view the scene of the shooting at night.
Defendant contended that the “extreme darkness” at the scene was crucial to his defense
theory that he did not intend to kill the officers. Defendant raised the issue twice more,
and the prosecutor objected to the jury view. The prosecution contended that defendant‟s
own statements revealed that he could see the officers‟ silhouettes, and could see well
enough to note that there was a size discrepancy between the officers. Brown and Twilla
Gideon also testified about the lighting conditions at the scene, explaining that they could
see the officers‟ bodies lying in the intersection and that one of the officers had facial
17
hair. The prosecutor argued that a jury view of the scene was unnecessary because the
issue was not whether defendant could see the officers, but whether he aimed at them.
The trial court denied defendant‟s guilt phase motion, explaining that it would be
impossible to duplicate the lighting conditions of the scene because the trial was
conducted during the summer months, while the crime occurred in January.
Additionally, the court explained that there was ample evidence that it was “pitch black”
and “difficult to see” on the night of the murder. Finally, the court agreed with the
prosecutor‟s argument that the issue was one of aiming, not one of visibility.
Section 1119 provides that “[w]hen, in the opinion of the court, it is proper that the
jury should view the place in which the offense is charged to have been committed, . . . it
may order the jury to be conducted . . . to the place . . . .” We review a trial court‟s denial
of a motion to view the scene of a murder “for abuse of discretion [citation], i.e., whether
the court exercised its discretion in an arbitrary, capricious, or patently absurd manner
that results in a manifest miscarriage of justice.” (People v. Lawley (2002) 27 Cal.4th
102, 158, citing People v. Sanders (1995) 11 Cal.4th 475, 512.) Defendant argues that
none of the trial court‟s stated reasons for denying the jury-view motion withstand
scrutiny; we disagree. Defendant argues at some length that the court‟s concern that
lighting conditions would be difficult to duplicate is unfounded. In People v. Williams,
we concluded that the trial court‟s reasons for denying a jury view motion — “that
lighting and foliage conditions at the scene might be different than those prevailing at the
time of the offense” — were reasonable and correct. (People v. Williams (1997) 16
Cal.4th 153, 213.) “ „When the purpose of the view is to test the veracity of a witness‟s
testimony about observations the witness made, the trial court may properly consider
whether the conditions for the jury view will be substantially the same as those under
which the witness made the observations, whether there are other means of testing the
veracity of the witness‟s testimony, and practical difficulties in conducting a jury view.‟
18
(People v. Price (1991) 1 Cal.4th 324, 422.)” (People v. Lawley, supra, 27 Cal.4th at
p. 158.)
Defendant argues that testimony that the scene was “pitch black” was not
sufficient to “address the real issue of how that level of darkness affected visibility.”
Defendant also contends the trial “court failed to recognize that the visibility at the scene
was highly relevant to whether appellant aimed at the officers.” Defendant‟s arguments
are unavailing. Defendant admitted that he was able to see the officers‟ silhouettes; we
fail to see how a jury view of the scene would assist the jury in determining whether
defendant aimed at those silhouettes. We conclude that the court did not abuse its
discretion in denying defendant‟s request to have the jury view the scene of the murders.
As the court noted, testimonial evidence adequately informed the jury as to the lighting
conditions at the scene. The trial court reasonably concluded that a jury view —
conducted at a different time of night and a different time of year with very different
lighting conditions — was unnecessary.
Defendant again requested that the second penalty-phase jury be permitted to view
the scene of the murders at night; the trial court denied his request. Defendant claims the
court‟s denial violated his state law rights, as well as his Eighth and Fourteenth
Amendment rights under the United States Constitution, because a view of the scene
would have enabled defendant to rebut aggravating evidence and to establish lingering
doubt. As the People cogently explain, a “capital defendant has no federal constitutional
right to have the jury consider lingering doubt in choosing the appropriate penalty.”
(People v. Stitely (2005) 35 Cal.4th 514, 566.) In People v. Stitely, we explained that
“[e]vidence that is inadmissible to raise reasonable doubt at the guilt phase is
inadmissible to raise lingering doubt at the penalty phase.” (Ibid.) For the same reasons
we rejected defendant‟s guilt phase argument, we conclude that the trial court did not
abuse its discretion by denying defendant‟s penalty phase motion to have the jury view
19
the scene of the crime at night. Even assuming that the trial court erred in denying
defendant‟s guilt and penalty phase requests, considering the ample evidence of the
lighting conditions presented during both phases of the trial, we conclude that it is not
reasonably probable that the jury would have returned a verdict more favorable to
defendant (see People v. Watson (1956) 46 Cal.2d 818), and error, if any, was harmless
beyond a reasonable doubt (see Chapman v. California (1967) 386 U.S. 18, 24).
3. Allegedly Erroneous Interference with Jury’s Deliberations and Improper
Coercion of Guilt Verdicts
Defendant argues that the court‟s questioning of a juror after allegations of
impropriety were made intruded upon the jurors‟ deliberations and coerced a guilty
verdict in violation of defendant‟s rights to due process, a fair trial, and a unanimous jury
verdict under the state and federal Constitutions. For the reasons addressed below, we
conclude that defendant‟s claims are not meritorious.
After two days of deliberations, the court received a note from Juror No. 2
expressing concern about Juror No. 8‟s ability to deliberate objectively. The note
explained that Juror No. 2 was concerned that Juror No. 8 was “unable to set aside her
empathy for the defendant,” “unable to set aside her own personal experience relating to
mental illness,” and that “she seems to be suffering personal angst during the process
stating „pick on somebody else, I can‟t do this anymore.‟ „I‟ve had it!‟ „Can I abstain?‟ ”
Upon receipt of this notification, the court asked counsel to address how it wished
to proceed. Defense counsel argued that if the court thought “it would be appropriate, to
call out the juror . . . referred to, which is Juror No. 8 and . . . make inquiry whether or
not she‟s able to continue or is she deliberating,” the court should do so. Because the
note was received from a juror who was not the foreperson, the court suggested instead
that it call the foreperson to see whether the issue raised by Juror No. 2 “is a problem and
then take it from there.” Counsel for both parties agreed. The court took a moment
20
before the foreperson entered the court to make clear that it “tread[s] very lightly on these
issues and [does not] want to intrude on the deliberations. . . . [B]y talking to the
foreperson first,” the court and parties will “get a better take on whether or not this is a
general perception of the other jurors.”
The court explained to the foreperson, Juror No. 12, that it had received a letter
suggesting that there was a juror experiencing difficulty “setting aside his or her
sympathy for the defendant and objectively deliberating on the case.” Juror No. 12
agreed that there was an issue with a juror, and independently named Juror No. 8 as the
individual experiencing the problem. The court clarified that it did not wish to intrude in
any way in the deliberative process, and requested that the foreperson not mention the
individual jurors‟ votes regarding guilt or innocence, but asked the foreperson to explain
how jurors were “deliberating or refusing to deliberate.”
The foreperson explained that Juror No. 8 was not refusing to deliberate because
she was actively discussing the case with the jurors, but was expressing sympathy for the
defendant, “[t]hat she feels sorry for him,” “identifies with his plight so much that
she . . . has projected,” and “she is describing an emotional state . . . that she feels that she
shares with the defendant . . . [and that] she used . . . as the basis of her decision.” Juror
No. 12 also explained that Juror No. 8 seemed particularly emotionally invested in, and
emotionally drained by, the deliberations. Noting that it is an emotional experience, the
foreperson explained that Juror No. 8 became so exhausted by the process that she
refused to participate at one point, saying, “ „I wasn‟t going to talk today. I just wasn‟t
going to say anything.‟ ” The foreperson told that court that Juror No. 8 discussed how
drained she felt, and seemed much more emotionally involved than the other jurors.
The court asked counsel how they wished to proceed in light of the foreperson‟s
statement. Counsel for defendant requested that the jury continue its deliberations
undisturbed. The People argued that it seemed, based upon the letter and the foreperson‟s
21
statement, that Juror No. 8 was basing her decision upon personal experience instead of
the evidence, against the court‟s instruction, and that she may be unable to set aside her
sympathy for defendant. The People argued, and the court agreed, that direct inquiry of
Juror No. 8 was mandated.
The court stressed with Juror No. 8 that it would not be asking how she or any
other jurors were voting, but only whether any “jurors are using pity or sympathy for a
defendant in any way in this case.” The court explained that the jury‟s instructions and
“black letter law [require] that a juror must not in any case allow pity or sympathy for a
defendant to interfere with the deliberation process or influence his or her vote in the jury
process.” The court asked if Juror No. 8 believed her feelings of sympathy for defendant
interfered with her deliberative process, to which she responded in the negative. Juror
No. 8 explained that she understood both that it would be unfair and against the law to
allow her sympathy for defendant to interfere with the deliberative process, and that she
understood that she could not allow a particular personal event in her background to
interfere with or influence her objectivity. The court directed Juror No. 8 not to allow
events in her past to “interfere with [her] objectivity in this case” and “direct[ed her] to
further deliberate with the jurors. That means to discuss the evidence. Objectively.”
Juror No. 8 explained that the jury had “gone over and over” the evidence, and the court
directed her to return to the deliberation room and continue to deliberate.
The People expressed concern that Juror No. 8‟s statements apparently conflicted
with the statements in the note and those made by the foreperson. The court stated that it
did not wish to further question jurors, but would do so if there were further problems.
Defense counsel offered no argument following Juror No. 8‟s questioning, nor did
defense counsel object to Juror No. 8‟s continued service on the jury. Defendant now
contends that the court made a number of errors — namely, that it erred by questioning
Juror No. 8, that the court‟s questions of Juror No. 8 were intrusive, that the court‟s
22
instructions to Juror No. 8 were coercive, and that the court made an unnecessary
comment to the foreperson — each of which, individually or collectively, mandate
reversal. We disagree.
As an initial matter, the People suggest that defendant‟s claims concerning Juror
No. 8 are barred because he invited the error by initially suggesting that the court
question Juror No. 8. As the People explain, the doctrine of invited error applies when a
defendant, for tactical reasons, makes a request acceded to by the trial court and claims
on appeal that the court erred in granting the request. (People v. Williams (2008) 43
Cal.4th 584, 629; People v. Wickersham (1982) 32 Cal.3d 307, 330, disapproved on other
grounds in People v. Barton (1995) 12 Cal.4th 186, 201.) Here, although defendant
initially suggested that the court question Juror No. 8, and acquiesced to the court‟s
alternate suggestion that it first question the foreperson, defendant ultimately reversed his
position, suggesting that the jury should continue deliberating without questioning Juror
No. 8. The court rejected defendant‟s later suggestion, and questioned Juror No. 8.
Accordingly, we conclude that defendant did not invite any error he now claims occurred.
The People suggest in the alternative that defendant‟s claims concerning Juror
No. 8 are forfeited. Defendant did not object to the trial court‟s decision to “bring out . . .
Juror No. 8” after the prosecution suggested that the court do so. After the court
admonished Juror No. 8, it engaged in a brief colloquy with the prosecutor regarding
whether any further steps were necessary. Defense counsel did not comment throughout
the duration of the court‟s exchange with Juror No. 8, nor did counsel join in the
conversation between the prosecutor and the court after Juror No. 8 left the courtroom.
Defense counsel did not object to Juror No. 8‟s continued service on the jury, and did not
request a mistrial based upon juror misconduct. A claim of prejudicial misconduct is
waived when the defendant fails to object to a juror‟s continued service and fails to seek a
mistrial based upon prejudice. (People v. Stanley (2006) 39 Cal.4th 913, 950.) Here,
23
defendant‟s claim that the court‟s questions of Juror No. 8 constituted reversible error
because they were improper, intrusive, and coercive is forfeited because defendant failed
to object. As discussed more fully below, defendant‟s claims additionally fail on the
merits.
As defendant aptly points out, “[t]he secrecy of deliberations is the cornerstone of
the modern Anglo-American jury system.” (United States v. Thomas (2d Cir. 1997)
116 F.3d 606, 618.) Courts must exercise care when intruding into the deliberative
process to ensure that the secrecy, as well as the sanctity, of the deliberative process is
maintained. (See People v. Cleveland (2001) 25 Cal.4th 466, 475.) “The need to protect
the sanctity of jury deliberations, however, does not preclude reasonable inquiry by the
court into allegations of misconduct during deliberations.” (Id. at p. 476.) In People v.
Keenan (1998) 46 Cal.3d 478, 532, we held that the court had a duty to investigate an
allegation of juror misconduct, “emphasiz[ing] that when a trial court learns during
deliberations of a jury-room problem which, if unattended, might later require the
granting of a mistrial or new trial motion, the court may and should intervene promptly to
nip the problem in the bud. The law is clear, for example, that the court must investigate
reports of juror misconduct to determine whether cause exists to replace an offending
juror with a substitute.”
Here, the court did nothing more than follow established law by investigating, to
as limited an extent as possible, allegations that a juror was unable to perform her duties.
Because the court has the power to discharge a juror who is unable to perform his or her
duties pursuant to section 1089, a court may also undertake less drastic steps to ensure
that a juror is able to continue in his or her role. (People v. Keenan, supra, 46 Cal.3d at
p. 533.) Defendant argues that the court interfered with the secrecy of the deliberations,
and asked improperly intrusive questions, when it interviewed Juror No. 8, based upon
what he characterizes as Juror No. 2‟s “unsubstantiated concerns.” Defendant‟s
24
arguments are demonstrably specious; indeed, defendant initially suggested that the court
question Juror No. 8 after being made aware of Juror No. 2‟s letter expressing concern
regarding the deliberative process. Moreover, the court was mindful of its potential
impact on the deliberative process, explaining before it questioned both the foreperson
and Juror No. 8 that it did not wish to know individual votes, that it wished to limit its
impact on the deliberative process, and that it sought only to ascertain the extent of any
potential misconduct.
In People v. Cleveland, we explained that “a trial court‟s inquiry into possible
grounds for discharge of a deliberating juror should be as limited in scope as possible, to
avoid intruding unnecessarily upon the sanctity of the jury‟s deliberations. The inquiry
should focus upon the conduct of the jurors, rather than upon the content of the
deliberations. Additionally, the inquiry should cease once the court is satisfied that the
juror at issue is participating in deliberations and has not expressed an intention to
disregard the court‟s instructions or otherwise committed misconduct, and that no other
proper ground for discharge exists.” (People v. Cleveland, supra, 25 Cal.4th at p. 485.)
Upon hearing that Juror No. 8 was not permitting her sympathy for defendant to interfere
with her deliberations, and that she understood that she could not permit events in her
personal life to obscure her objectivity in the case, the court directed her to adhere to her
oath as a juror and return to deliberations. The court intruded as minimally as possible to
satisfy its dual goals of investigating allegations of misconduct while preserving the
secrecy of the deliberative process. Accordingly, we conclude that the court did not
abuse its discretion when questioning Juror No. 8, either by improperly intruding upon
the secrecy of deliberations, or asking improperly intrusive questions.
Defendant next suggests that the court‟s comments to Juror No. 8 were coercive.
We disagree. “Any claim that the jury was pressured into reaching a verdict depends on
the particular circumstances of the case.” (People v. Pride (1992) 3 Cal.4th 195, 265.) In
25
People v. Pride, addressing the admittedly distinct circumstance of a deadlocked penalty-
phase jury, we explained that coercion was not present where the court did not comment
on the vote; suggested that the status of the vote was irrelevant; did not tell the jury to
reach a verdict within a particular period of time; and otherwise did not constrain the
jury. (3 Cal.4th at pp. 265-266.) Here, similarly, the court explained that it did not wish
to know Juror No. 8‟s personal vote, nor the votes of any other members of the jury, and
did not constrain Juror No. 8 or the jury except to require that the jury abide by the
instructions given.
More specifically, the court instructed Juror No. 8 that she could not permit her
feelings of pity and sympathy for defendant to influence her deliberative process and
directed her not to permit “a particular personal event in [her] life . . . to interfere with
[her] objectivity in this case.” It then directed her to resume deliberations. The court at
no time suggested that it favored any particular verdict; indeed, it stated, “I am not and
will not be asking you questions about how people are voting or how you are voting, one
way or the other. It doesn‟t make any difference to me.” We conclude that neither the
court‟s instruction to Juror No. 8 to follow the law, nor the court‟s express statement that
it did not wish to know the votes and that such knowledge made no difference, was
coercive. As in People v. Pride, the court‟s instruction that deliberations continue cannot
be construed as coercive. (People v. Pride, supra, 3 Cal.4th at p. 266.)
Defendant makes a few final arguments without reference to any authority. He
first contends the court‟s comment to the foreperson, “I‟ll discuss with the attorneys if we
have any recourse,” improperly invaded the secrecy of the jury‟s deliberations. He also
suggests that the court‟s colloquy with the foreperson was improper because the court
neither requested that the foreperson keep the exchange confidential, nor did the court
hold the conversation in front of the entire jury, as defendant contends it should have
done had it intended that the conversation be public. None of these contentions has
26
merit. The court‟s comment to the foreperson that it would discuss with the attorneys
how it wished to handle the allegations of misconduct raised against Juror No. 8 was
nothing more than an informative, offhand comment regarding the next step the court
planned to take. It did not invade the secrecy of the deliberations in any way. Moreover,
the court‟s decision not to hold the exchange between it and the foreperson before the
entire jury was not an abuse of its discretion. The sanctity of deliberations must be
protected, and courts must act reasonably when inquiring about potential misconduct.
(People v. Cleveland, supra, 25 Cal.4th at p. 476.) Conducting such an inquiry before the
entire panel, rather than discreetly questioning the foreperson regarding alleged
misconduct before taking further action, arguably would be more intrusive and less
reasonable than what occurred here. Accordingly, we conclude that the trial court did not
abuse its discretion when it minimally intruded upon the deliberative process to question
the foreperson regarding an allegation of misconduct.
Because we conclude that the trial court did not err by questioning the foreperson
or Juror No. 8 regarding allegations of misconduct, reversal is not warranted under either
the harmless error or the reasonable probability standards proposed by defendant.
(Chapman v. California, supra, 386 U.S. 18; People v. Watson, supra, 46 Cal.2d 818.)
4. Alleged Instructional Error on Consciousness of Guilt Consistent with
CALJIC No. 2.03
This claim concerns the inconsistencies in defendant‟s and Brown‟s statements
regarding whether or not defendant told Brown that he planned to kill the officers. On
the night of the murders, after firing several shots into the air, defendant returned to the
home he had shared with his wife and told Brown that police were coming and that “he
was going to kill them.” When asked whether he used those words, Brown replied in the
affirmative. Brown was later impeached on cross-examination when she was confronted
with her earlier grand jury testimony that defendant told her only that “the police were
27
coming and that he [defendant] was going down.” While being cross-examined, Brown
explained that when she gave her testimony before the grand jury she did not recall
precisely what defendant had said concerning his plans to kill the police officers, but that
the “gist” of defendant‟s comments was that “he was going to kill the cops.”
Immediately following his arrest, defendant agreed to be interviewed by Detective
Spidle regarding the shootings. During that first interview, defendant told Detective
Spidle that he “never told” Brown that he planned to shoot the responding officers, and
never said “anything about if the cops come I‟m gonna shoot ‟em.” Detective Spidle
returned the next day to continue defendant‟s interview, and asked defendant whether he
recalled saying, “ „The cops are comin‟, I don‟t care, I‟ll take them out too.‟ ” Defendant
replied that he didn‟t “remember saying that but it‟s very possible that I did, yes.”
Based on these inconsistent statements, the prosecutor asserted during closing
argument that the jury could “conclude that [defendant] was lying, [and that] he did, in
fact, threaten the police officers . . . [and] did what he told [Brown] he was going to do.
He was going to kill the cops. [¶] The judge is going to tell you that if you find that
[defendant] lied to [Detective] Spidle you can use what is called a consciousness of guilt.
He has something to hide.”
The jury was instructed based on CALJIC No. 2.03, which currently and as given
provides: “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 that statement as a circumstance tending to prove a consciousness of
guilt. However, that conduct is not sufficient by itself to prove guilt, and its weight and
significance, if any, are for you to decide.”
Defendant argues that the trial court erroneously instructed on consciousness of
guilt, and that the court‟s error in giving this instruction violated defendant‟s Sixth and
Fourteenth Amendment rights under the United States Constitution, as well as his rights
28
pursuant to article I, sections 7, 15, and 16 of the California Constitution. Defendant
primarily argues that the court erred in instructing the jury pursuant to CALJIC No. 2.03
because there was insufficient evidence supporting the instruction. Defendant also
contends that the instruction permitted the jury to draw an improper inference concerning
defendant‟s intent in committing the shootings, and contends that the instruction is
impermissibly argumentative. For the reasons explained below, we reject each of
defendant‟s contentions.
Defendant first contends that no evidence supported instructing the jury pursuant
to CALJIC No. 2.03. Defendant argues that his initial responses to Detective Spidle‟s
questions as to whether he told Brown he planned to harm the officers, namely, “I never
told [Brown] that” and “No,” do not constitute sufficient evidence of a false or
deliberately misleading statement to explain his conduct. CALJIC No. 2.03 is properly
given when there exists evidence that a defendant made a deliberately misleading or false
statement to explain his or her conduct. (See People v. Page (2008) 44 Cal.4th 1, 50-51.)
Here, defendant argues that his initial denial to Detective Spidle that he told Brown that
he planned to harm the officers and his later equivocation regarding the same statement
“cannot reasonably be considered a prefabricated story to explain his conduct” because
even if his earlier statement to Detective Spidle was untrue, the statement does not
demonstrate defendant‟s consciousness of guilt. Defendant does not dispute that he
made inconsistent statements regarding whether he told Brown he planned to kill the
officers, from which a jury could conclude that at least one of the statements was untrue.
“The jury could rationally infer that defendant made a false statement to deflect suspicion
from himself.” (People v. Barnwell (2007) 41 Cal.4th 1038, 1057.) Accordingly, the
trial court did not err by instructing the jury pursuant to CALJIC No. 2.03.
Moreover, we conclude that ample additional evidence was presented justifying
the court‟s decision to instruct the jury pursuant to CALJIC No. 2.03. In addition to the
29
inconsistent statements regarding defendant‟s stated intent to harm the officers, the
prosecution suggests that CALJIC No. 2.03 would have been appropriately given to the
jury to consider the conflicting evidence that defendant initially planned to sneak past the
officers as they approached and his later decision to run in the opposite direction; and
defendant‟s statement to Brown that he planned to “take out” the officers, and
defendant‟s later testimony that he intended only to shoot in front of the officers to scare
but not to injure them. Ample evidence of defendant‟s potentially false or deliberately
misleading statements was presented; accordingly, the trial court did not err by
instructing the jury with CALJIC No. 2.03.
Defendant also contends that his inconsistent statements do not demonstrate that
he was “being willfully false in any meaningful way.” Defendant relies on People v.
Mattson (1990) 50 Cal.3d 826, 872, in which we noted that the inference of
consciousness of guilt and the probative value of a denial are “tenuous” where a
defendant initially denies but later confesses to committing a crime. Defendant argues
that the connection between the inconsistent statements here is even more tenuous. We
disagree.
We recently clarified our earlier statement in People v. Mattson, explaining: “The
fact that a defendant initially denies involvement and later makes admissions certainly
supports a conclusion that the earlier statement was a lie made to avoid detection or
culpability. Even when a defendant confesses, his or her state of mind or other details of
a crime may remain in dispute. The fact that a defendant initially denied culpability and
later made admissions are relevant facts, which must be weighed in light of all the
evidence.” (People v. Carrington (2009) 47 Cal.4th 145, 188 (Carrington).) Here, as in
Carrington, “defendant admitted [his] role in . . . the crimes,” but his “counsel continued
to dispute [his] state of mind.” (Ibid.) We found no error in Carrington, and reach the
same conclusion here. Although defendant did not initially deny culpability and later
30
recant, his inconsistent statements concerning his intent to harm the responding officers,
like the inconsistent statements in Carrington, “certainly support[] a conclusion that the
earlier statement was a lie made to avoid detection or culpability.” (Ibid.)
Defendant argues that instructing the jury pursuant to CALJIC No. 2.03 allowed
the jury to improperly infer guilt from evidence that otherwise would not have properly
been susceptible of such an inference, and that the instruction was impermissibly
argumentative. Defendant acknowledges that we have repeatedly rejected these claims
and presents us with no reason to reconsider our earlier decisions. (See People v.
McWhorter (2009) 47 Cal.4th 318, 377; Carrington, supra, 47 Cal.4th at p. 188.)
Defendant argues that the court‟s error in instructing the jury pursuant to CALJIC
No. 2.03 requires reversal because it cannot be demonstrated that the error was harmless
beyond a reasonable doubt pursuant to Chapman v. California, supra, 386 U.S. at page
24. In light of defendant‟s numerous taped confessions, we conclude that error, if any, in
instructing the jury pursuant to CALJIC No. 2.03 was harmless.
5 . Alleged Instructional Error That Jury Need Not Agree Whether Defendant
Committed a Premeditated Murder or Lying-in-wait Murder
Defendant contends that the trial court‟s failure to require that the jury
unanimously decide which statutory form of first degree murder he committed —
deliberate and premeditated or by lying in wait — violated his rights under the state and
federal Constitutions to due process, to have the state establish proof of murder beyond a
reasonable doubt, and to a reliable determination of whether he committed a capital
offense. As defendant acknowledges, we have previously considered and rejected such
claims. (See People v. Nakahara (2003) 30 Cal.4th 705, 712; People v. Hardy supra,
2 Cal.4th at p. 162.) In Schad v. Arizona (1991) 501 U.S. 624, 636, the high court held
that a jury need not unanimously decide the theory of murder, felony or malice, upon
which it based its guilty verdict, because those theories are not distinct elements of the
31
crime but are instead merely distinct means of committing the offense. Defendant urges
us to distinguish Schad v. Arizona; we decline to do so.
Defendant argues that lying-in-wait murder requires proof of different elements
than for deliberate and premeditated murder, and accordingly requires that a jury
unanimously decide on the theory underlying its first degree murder verdict. To support
his argument, defendant relies on two high court cases, both of which address the legal
significance of distinguishing between elements of a crime and the means of committing
a crime. (Schad v. Arizona, supra, 501 U.S. at p. 637; Richardson v. United States (1999)
526 U.S. 813, 817.) The significance of the distinction between the elements of a crime
and the means of its commission is not lost on this court; however, defendant fails to cite
any authority suggesting that deliberate and premeditated murder has elements distinct
from lying-in-wait murder. Indeed, as the People point out, defendant‟s contention is
erroneous. We considered and rejected a similar argument in People v. Hardy, in which
we concluded “[t]his court . . . views lying in wait „as the functional equivalent of proof
of premeditation, deliberation and intent to kill.‟ ” (People v. Hardy, supra, 2 Cal.4th at
p. 162, quoting People v. Ruiz, supra, 44 Cal.3d at p. 614.) Because lying in wait and
deliberate and premeditated theories of murder are simply different means of committing
the same crime, juror unanimity as to the theory underlying its guilty verdict is not
required. Defendant presents us with no compelling reason to reconsider our sound prior
reasoning to that effect.
Finally, defendant argues that the trial court‟s erroneous failure to require juror
unanimity constituted structural error requiring reversal of the entire judgment. (Sullivan
v. Louisiana (1993) 508 U.S. 275, 282.) Because we find no error, structural or
otherwise, reversal is not warranted.
32
B. Penalty Retrial
1. Allegedly Erroneous Denial of Defendant’s Motion to Admit His Recorded
Statements to Police
Defendant argues that the court‟s denial of his request to introduce, as evidence of
the circumstances of the crime and of his character and background, the three videotaped
statements he made to police following his arrest violated his rights to due process and a
fair and reliable penalty determination under the state and federal Constitutions, as well
as section 190.3, factors (a) and (k).4 Defendant concedes that the statements constitute
hearsay but nonetheless argues that they were admissible under Green v. Georgia (1979)
442 U.S. 95 (Green) because the evidence was reliable and highly relevant, and its
exclusion violates defendant‟s right to due process. Defendant also argues that the tapes
were admissible character evidence as nonhearsay or as exceptions to the hearsay
exclusion. The trial court concluded that the statements were relevant to the issues of
lingering doubt and defendant‟s alleged remorse, but that they were self-serving
statements and therefore unreliable and inadmissible.
At the guilt phase, the taped statements were introduced by the prosecution as
party admissions pursuant to Evidence Code section 1220. Defendant suggests that
because the prosecution introduced the statements during the guilt phase of the trial, it
must be precluded from objecting to introduction of those same statements in a penalty
retrial. During the penalty retrial, the prosecution did not seek to introduce the taped
statements, and defendant was not able to avail himself of Evidence Code section 1220
4
Section 190.3, provides in pertinent part that “the trier of fact shall take into
account” “(a) [t]he circumstances of the crime of which the defendant was convicted in
the present proceeding and the existence of any special circumstances found to be true
pursuant to Section 190.1,” and “(k) [a]ny other circumstance which extenuates the
gravity of the crime even though it is not a legal excuse for the crime.” (§ 190.3, factors
(a), (k).)
33
because that provision applies only to statements offered against a party declarant, not
offered by that party. (Evid. Code, § 1220.) Defendant argued that the statements were
relevant and admissible as evidence concerning the circumstances of the crime and as
mitigating evidence, and were admissible pursuant to section 190.3, factors (a) and (k).
The prosecution argued that the statements should be excluded, even if relevant, because
they were unreliable, self-serving hearsay. The prosecutor argued that the statements
were made nearly 12 hours following the shootings and over four hours after defendant‟s
arrest — not immediately following defendant‟s being made aware of the officers‟
deaths. The prosecution also noted that defendant initially did not want to speak with law
enforcement officers, and that his eventual statements were inconsistent with the physical
evidence and lacked corroboration.
In Green, the high court held that due process requires that highly relevant
mitigating evidence may be introduced, though hearsay, where “substantial reasons
existed to assume its reliability.” (Green, supra, 442 U.S. at p. 97.) Here, no indicia of
reliability are present. Defendant‟s self-serving statements concerning the circumstances
of the crime were uncorroborated; indeed, the physical evidence suggests that defendant‟s
account of the shootings was false. For example, defendant claimed that he aimed
several yards in front of the officers, but the physical evidence suggested that the bullet
wounds could not have been the result of ricochet. The statement in Green, in contrast,
was a corroborated confession of the codefendant sufficient to produce a conviction and
capital sentence for that codefendant. (Ibid.) We conclude that the trial court did not err
by concluding that the statements, though relevant, were not as highly reliable as was the
statement in Green.
Defendant attempts to distinguish several cases in which we concluded that taped
statements made by a defendant could not be introduced for their truth during the penalty
phases of the trial. (See People v. Jurado (2006) 38 Cal.4th 72, 128-130; People v.
34
Weaver (2001) 26 Cal.4th 876, 980-981; People v. Stanley (1995) 10 Cal.4th 764, 838-
840.) In each of the cases cited by defendant, we concluded that the trial court did not err
under Green when it excluded, or provided limiting instructions concerning, self-serving
statements sought to be introduced by the defendants during the penalty phases of their
trials. (See People v. Jurado, supra, 38 Cal.4th at pp. 128-130; People v. Weaver, supra,
26 Cal.4th at pp. 980-981; People v. Stanley, supra, 10 Cal.4th at pp. 838-840.)
Defendant contends that his case is distinguishable because his statements were
introduced during the guilt phase of his trial, but excluded at the penalty phase. We see
no distinction; in all instances, the trial courts reasonably concluded that the due process
considerations underlying the high court‟s decision to permit the introduction of highly
reliable, relevant evidence in Green were not present in these cases involving self-
serving, uncorroborated statements made by defendants. (See People v. Jurado, supra,
38 Cal.4th at pp. 128-130; People v. Weaver, supra, 26 Cal.4th at pp. 980-981; People v.
Stanley, supra, 10 Cal.4th at pp. 838-840.)
We also reject defendant‟s contention that there exists an independent state law
basis to introduce his videotaped statements. Defendant argues that this court possesses
the inherent authority to recognize exceptions to the hearsay rule, though he
acknowledges that we “do so cautiously in light of the venerable policy against admitting
declarations by witnesses who cannot be cross-examined.” (People v. Demetrulias
(2006) 39 Cal.4th 1, 27.) Defendant suggests that the reliability of his statements,
coupled with the fact that the statements were introduced at the guilt phase of his trial,
compels this court to recognize a narrow exception to the hearsay rule. We disagree. As
previously explained, the statements are self-serving and uncorroborated by physical
evidence; defendant presents us with no reason to ignore our admonition to proceed
cautiously when recognizing exceptions to the hearsay rule.
35
Defendant also contends that the court must read sections 190.3 and 190.4 in
conjunction, to require that statements introduced by the prosecution during the guilt
phase of a trial must be introduced at the penalty phase of a trial if the defense so
requests. Not so. A plain reading of section 190.4 reveals the flaw of this argument.
Section 190.4, subdivision (d) provides in pertinent part: “In any case in which the
defendant may be subject to the death penalty, evidence presented at any prior phase of
the trial . . . shall be considered at any subsequent phase of the trial, if the trier of fact of
the prior phase is the same trier of fact at the subsequent phase.” (Italics added.) The
corollary of this rule is plain — where the trier of fact at a subsequent phase of a trial is
not the same as the trier of fact at a previous phase, it is not the case that evidence
presented at that prior phase “shall be considered” at the subsequent phase. The same
evidence certainly may be considered, but, to be considered, that evidence must be
admissible. As explained, ante, the videotaped statements were inadmissible hearsay
evidence, and no exception permitting their admission applies.
Finally, defendant suggests that his nonverbal conduct on the tapes was character
evidence of his remorse admissible under section 190.3, factor (k). The People argue that
defendant forfeited this claim by failing to argue in the briefing or argument before the
trial court that he sought to introduce the nonassertive conduct on the tapes as mitigating
character evidence. Assuming without deciding that the argument is not forfeited and is
meritorious, any error was harmless. Detective Spidle testified regarding defendant‟s
emotional state while defendant made the statements. Detective Spidle noted that he
used the word “remorse” in his report, though he believed it would be more accurate to
say that defendant felt regret. Detective Spidle also explained that defendant was
initially cooperative with the police, showing them where he had hidden the gun. Upon
learning that the officers were dead, Detective Spidle testified that defendant became
teary eyed and visibly emotional. We conclude that defendant was able to, and did,
36
present evidence of remorse; any error in failing to admit the nonassertive conduct
contained in defendant‟s taped statements was harmless beyond a reasonable doubt.
(Chapman v. California, supra, 386 U.S. at p. 24.)
2. Allegedly Erroneous Excusal of Prospective Jurors
Defendant argues that the trial court erroneously excused seven prospective jurors
prior to voir dire based upon their answers to jury questionnaires in violation of his rights
to a fair trial, due process, and a reliable penalty determination under the state and federal
Constitutions. For the reasons addressed below, we reject defendant‟s claim.
The trial court and the parties discussed and agreed upon the language of the
penalty retrial jury questionnaires. Prior to conducting voir dire, the court informed the
parties that it had reviewed all of the completed jury questionnaires and had made a
tentative ruling as to about 25 prospective jurors, which it reviewed with the parties. The
court explained that it wished to “solicit any opposition from counsel” before it excused
the jurors, and ensure that the parties had “an opportunity to be heard.” The court then
proceeded in numeric order to discuss the jurors about whom it had concerns or “red
flags” based upon the answers in the jury questionnaires. On a number of occasions,
either defense counsel or the prosecutor indicated his desire for the court to conduct
further inquiry of the prospective juror at issue, which the court agreed to do.
The court stated the remaining prospective jurors should be dismissed
immediately, to which defense counsel replied “no objection” or “submit it.” Defendant
now contends that seven prospective jurors were rejected because their responses to the
questionnaires suggested some objection to the death penalty, which violated the
Witherspoon-Witt rule that a prospective juror opposed to the death penalty may only be
excused when that juror‟s views would “ „prevent or substantially impair the performance
of his duties as a juror in accordance with his instructions and his oath.‟ ” (Wainwright
v. Witt (1985) 469 U.S. 412, 424; see Witherspoon v. Illinois (1968) 391 U.S. 510.)
37
The People argue that defendant invited any error by agreeing with the questions
posed in the questionnaire and agreeing to the excusal of the seven prospective jurors.
Assuming without deciding that error was not invited and the claim is not forfeited, we
conclude that the court did not err by excusing the seven prospective jurors opposed to
the death penalty. We review de novo a trial court‟s decision to excuse a prospective
juror based solely upon that juror‟s written response to a questionnaire. (People v. Avila
(2006) 38 Cal.4th 491, 529.) In People v. Avila, we concluded that a trial court‟s excusal
of four prospective jurors based solely upon their written responses to the jury
questionnaire was proper because the jurors‟ responses demonstrated an inability to
perform their duties as jurors. (38 Cal.4th at pp. 529-533.) People v. Avila distinguished
our decision in People v. Stewart, in which we held that the trial court erred by excusing
for cause five prospective jurors based upon their answers to a jury questionnaire that
asked whether the prospective juror‟s views on the death penalty would prevent or make
it very difficult for him or her to impose the penalty. (People v. Stewart (2004)
33 Cal.4th 425, 442, 444-445; People v. Avila, supra, 38 Cal.4th at p. 530.) Based on the
“make it very difficult” language in the questionnaire, we concluded in People v. Stewart
that it was not possible to ascertain whether a juror‟s response supported disqualification
under the Wainwright v. Witt standard requiring that such person‟s views on the death
penalty would prevent or substantially impair that person‟s ability to perform his or her
duties. (People v. Stewart, supra, 33 Cal.4th at pp. 444-445; Wainwright v. Witt, supra,
469 U.S. at p. 424.)
Here, the questions did not suffer from the same deficiency present in People
v. Stewart; the questions probed whether a prospective juror would experience difficulty
imposing the death penalty, but also very directly asked whether a juror would “always”
vote for or against the death penalty no matter what the evidence demonstrated. From a
prospective juror‟s responses, it was possible to ascertain whether that juror would
38
automatically vote for or against the death penalty, and thus whether that juror would be
prevented from performing his or her duty. (See Wainwright v. Witt, supra, 469 U.S. at
p. 424.) Defendant attacks each of the questions individually but fails to consider that,
considered collectively, the questions here, like those in People v. Avila, “included . . .
expansive and detailed questions on capital punishment and gave jurors the clear
opportunity to disclose views against it so strong as to disqualify them for duty on a death
penalty case.” (People v. Avila, supra, 38 Cal.4th at p. 531.)
Defendant argues that the questionnaires inadequately queried whether the
prospective jurors‟ views regarding the death penalty would interfere with the
requirement that jurors follow the law. We disagree. As was also the case in People v.
Avila, the responses to questions posed to prospective jurors here suggest that the court
properly excused the prospective jurors for cause “based solely on [their] answers to the
written questionnaire [because] it is clear from the answers that [the prospective jurors
are] unwilling to temporarily set aside [their] own beliefs and follow the law.” (People v.
Avila, supra, 38 Cal.4th at p. 531.) “With respect to each of these excusals, we conclude
that the trial court‟s determinations, based solely on the questionnaire responses, were
correct.” (Ibid.)
Defendant challenges the court‟s excusal of Prospective Juror R.D., explaining
that R.D.‟s responses were not “clear, unequivocal, and internally consistent,” as were the
responses of the prospective juror in People v. Avila, R.V., who had “indicated she
strongly opposed the death penalty and would in every case automatically vote for life
imprisonment without the possibility of parole, regardless of the evidence that might be
produced during trial.” (People v. Avila, supra, 38 Cal.4th at p. 531.) We conclude
Prospective Juror R.D.‟s responses were analogous to those of Prospective Juror R.V.
discussed in People v. Avila. When asked if there existed “any religious or moral feeling
that would make it difficult or impossible for you to sit in judgment of another person,”
39
R.D. responded that he was “against capital punishment,” and went on to explain that he
would “not always” follow the law if it differed from his beliefs, that his “no on capital
punishment” feelings might prevent him from being a fair and impartial juror, that he
“strongly opposed” the death penalty, and that “no matter what the evidence was, [he
would] ALWAYS vote [against]5 the death penalty.”
Similarly, the responses provided by Prospective Jurors M.L., J.Q., and T.T. were
internally consistent, and demonstrated that the court properly excused these prospective
jurors based solely upon their written responses to the questionnaire. Prospective Juror
M.L. indicated that he would “probably” follow the law as the judge instructed, but that
he was “not absolutely certain [he] would.” He clarified, “I am strongly opposed to the
death penalty,” and stated he “simply would not vote for” death, and that no matter the
evidence, he would “ALWAYS vote for life without the possibility of parole.”
Prospective Juror J.Q.‟s responses to the questionnaire also unambiguously demonstrated
“unwilling[ness] to temporarily set aside . . . her own beliefs and follow the law.”
(People v. Avila, supra, 38 Cal.4th at p. 531.) She explained that she was “strongly
against” the death penalty, that “God alone controls our life or death,” that the death
penalty serves no purpose, and that she would “ALWAYS vote for life without the
possibility of parole.”
5
Although Prospective Juror R.D. ticked the box indicating he would always vote
for the “death penalty” regardless of what the evidence showed, the remainder of his
responses to questions posed in the jury questionnaire made it clear that he marked the
wrong box, and instead intended to respond that he would always vote for life
imprisonment. Defendant argues Prospective Juror R.D.‟s erroneous box-ticking, in
conjunction with his other responses, “created a conflict and ambiguity which needed to
be resolved through voir dire.” We disagree, and conclude that Prospective Juror R.D.‟s
one response favorable to capital punishment resulted from a misreading of the question,
not from an ambiguous position toward that penalty.
40
As in People v. Avila, although Prospective Juror T.T. responded “yes” when
queried whether he would follow the law as instructed even if those instructions differed
from his beliefs or opinions, “taken together, [T.T.‟s] answers to the jury questionnaire
professed an opposition to the death penalty that would prevent him from performing his
duties as a juror.” (People v. Avila, supra, 38 Cal.4th at p. 532.) Prospective Juror T.T.
stated he “could not condemn a person to receive the death penalty, under any
circumstance” (italics added), that he strongly opposed the death penalty, and that he
would always vote for a life sentence. In light of those answers, the trial court did not err
by excusing him for cause based solely upon his responses to the questionnaire.
Defendant argues that although the responses by Prospective Jurors M.G., D.F.,
and S.O. were not internally inconsistent, the court should have questioned them because
they might have held more nuanced views regarding the death penalty than their written
responses to the questionnaire suggested. We disagree. Prospective Juror M.G.
expressed a view strongly against the death penalty, stating, “I am against the death
penalty,” “[m]y religion does not allow me to pass judgment, especially in this case,” and
explaining he could never vote for death because he “could not be forgiven.” Prospective
Juror D.F.‟s responses were also unequivocally anti-death-penalty; he explained he did
“not believe in taking a human life for any reason,” and twice indicated his strong
opposition to abortion on the same grounds. Finally, Prospective Juror S.O. consistently
indicated a strong anti-death-penalty view, explaining, “I could not stand being
responsible for someone‟s death.” We conclude the court did not err by excusing these
seven prospective jurors based solely on their clear and unequivocal written responses to
the questionnaire.
Because we find that the court did not err, automatic reversal is not required.
(Gray v. Mississippi (1987) 481 U.S. 648, 659-668 (lead opn. of Blackmun, J.); People v.
Stewart, supra, 33 Cal.4th at pp. 454-455.)
41
3. Allegedly Improper Introduction of Victim Impact Evidence
Defendant argues that the presentation of victim impact evidence at his penalty
retrial violated section 190.3, Evidence Code section 352, and his state and federal
constitutional rights to due process, a fair trial, and a reliable penalty determination.
Specifically, defendant contends that evidence concerning the character of the victims
was excessive and partially inadmissible, that testimony of the victims‟ children was
cumulative and prejudicial, that victim impact evidence was irrelevant or inadmissible
under Evidence Code section 352, and that character evidence elicited from one victim‟s
daughter violated Booth v. Maryland‟s prohibition against the admission of certain victim
impact statements. (Booth v. Maryland (1987) 482 U.S. 496, 503, 508, overruled in part
by Payne v. Tennessee (1991) 501 U.S. 808, 825.) We find no error.
Deputy Lehmann‟s wife testified about the impact of her husband‟s death on her
and her children. His daughter testified about the fear she experienced as a result of her
father‟s death. Deputy Lehmann‟s father-in-law spoke about Deputy Lehmann‟s kind
nature. Deputy Lehmann‟s brother-in-law testified regarding the devastating impact of
the officer‟s death on his son, Christopher, and about Christopher‟s destructive behavior
following his father‟s death. Deputy Lehmann‟s mother testified about the heart attack
she suffered just weeks after her son was killed.
Deputy Haugen‟s wife testified regarding her relationship with her husband, and
testified as to the impact of his death on her and her children. Deputy Haugen‟s niece
testified about her correspondence with her uncle. Deputy Haugen‟s son testified about
grieving for his father, and the changes to his family following his father‟s death. Omar
Rodriguez described the reaction of Deputy Haugen‟s family when he informed them that
Deputy Haugen had been killed. In addition to the testimony described above, 57 images
of the victims and their families were introduced into evidence.
42
As we have repeatedly held, victim impact evidence is relevant and admissible
pursuant to section 190.3, factor (a) as a circumstance of the crime so long as it is not “so
unduly prejudicial” that it renders the trial “fundamentally unfair.” (Payne v. Tennessee,
supra, 501 U.S. at p. 825; see People v. Burney (2009) 47 Cal.4th 203, 258; see also
People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1056-1057.) Admission of testimony
presented by a few close friends or relatives of each victim, as well as images of the
victim while he or she was alive, has repeatedly been held constitutionally permissible.
(People v. Burney, supra, 47 Cal.4th at p. 258; People v. Boyette (2002) 29 Cal.4th 381,
444.)
Here, a few relatives of each victim testified concerning the character of the
victims and the impact of their deaths upon their families. Defendant‟s argument that
evidence regarding the victims‟ characters was excessive and irrelevant is unavailing.
Evidence regarding the character of the victim is admissible to demonstrate how a
victim‟s family is impacted by the loss and to show the “ „victim‟s “uniqueness as an
individual human being,” whatever the jury might think the loss to the community
resulting from his death might be.‟ ” (People v. Brown (2004) 33 Cal.4th 382, 398, citing
Payne v. Tennessee, supra, 501 U.S. at p. 823.)
Though the victims‟ wives did testify about the impact of their husbands‟ deaths
on their families, we reject defendant‟s claims that the victims‟ children were precluded
from providing testimony regarding their personal experiences resulting from the deaths
of their fathers. (See People v. Panah (2005) 35 Cal.4th 395, 495 [“There is no
requirement that family members confine their testimony about the impact of the victim‟s
death to themselves, omitting mention of other family members.”].) Testimony provided
by Deputy Lehmann‟s mother and daughter was similarly admissible because it was not
so prejudicial that it rendered the trial fundamentally unfair. (Payne v. Tennessee, supra,
501 U.S. at p. 825.) Assuming without deciding that any of the victim impact testimony
43
was erroneously admitted, any error was harmless beyond a reasonable doubt in light of
the overwhelming evidence in aggravation. (Chapman v. California, supra, 386 U.S. at
p. 24.)
4. Alleged Instructional Error Regarding Use of Victim Impact Evidence
Defendant alleges that the trial court erred by denying his request to instruct the
jury concerning victim impact evidence, and erred by failing to instruct the jury sua
sponte regarding victim impact evidence, in violation of his state and federal
constitutional rights to due process, a fair trial, and a reliable penalty determination.6 We
recently held in Carrington, supra, 47 Cal.4th at page 198, that the trial court need not
have instructed the jury sua sponte concerning the use of victim impact evidence. In
Carrington, the defendant did not request an instruction, but argued on appeal that the
court should have instructed the jury sua sponte consistent with an instruction proposed
but not mandated by the Pennsylvania Supreme Court. (Ibid.) The defendant in
Carrington argued that “raw emotion” would taint the jury absent an instruction
concerning its consideration of victim impact evidence; we rejected the defendant‟s
argument, concluding that CALJIC No. 8.85 adequately conveyed to the jury its duty,
that emotion may play a part in a juror‟s determination and an instruction to the contrary
would be erroneous, and that an instruction explaining that the law does not deem one life
6
Defendant‟s requested instruction provided: “Evidence has been introduced for
the purpose of showing the specific harm caused by the defendant‟s crime. Such
evidence, if believed, was not received and may not be considered by you to divert your
attention from your proper role of deciding whether defendant should live or die. You
must face this obligation soberly and rationally, and you may not impose the ultimate
sanction as a result of an irrational, purely subjective response to emotional evidence and
argument. On the other hand, evidence and argument on emotional though relevant
subjects may provide legitimate reasons to sway the jury to show mercy.”
44
more valuable than another does nothing to clarify the jury‟s understanding of the case.
(Carrington, supra, 47 Cal.4th at p. 198.)
In People v. Harris (2005) 37 Cal.4th 310, 358-359, and People v. Ochoa (2001)
26 Cal.4th 398, 445, two cases defendant attempts to distinguish, we concluded that the
trial court did not err by refusing to provide an instruction similar to the one requested by
defendant here. In People v. Harris, we explained that the requested instruction was
“unclear as to whose emotional reaction it directed the jurors to consider with caution —
that of the victim‟s family or the jurors‟ own.” (People v. Harris, supra, 37 Cal.4th at
p. 359.) Defendant‟s requested instruction here suffers from the same defect.
Defendant argues that People v. Harris is distinguishable because the trial court in
Harris provided the jury with an instruction concerning victim impact evidence requested
by the prosecution, and no such instruction was provided here. In People v. Ochoa,
however, we concluded that the jury was adequately instructed pursuant to CALJIC
No. 8.84.1. (People v. Ochoa, supra, 26 Cal.4th 398, 455.) Just as in People v. Ochoa,
the jury here was given an instruction broadly cautioning it to determine the facts from
the evidence presented, to follow the law, and to avoid being swayed by bias or prejudice
against defendant. (See CALJIC No. 8.84.1.) We have consistently concluded that
neither the trial court‟s refusal to provide a victim impact evidence instruction worded
similarly to defendant‟s proposed instruction, nor the trial court‟s refusal to sua sponte
provide a similar instruction, constitutes error. Defendant presents us with no reason to
reconsider our prior holdings.
5. Alleged Instructional Error Regarding Uncharged Acts as Aggravating
Factors
Defendant claims the court erred by admitting evidence of uncharged crimes as an
aggravating factor under section 190.3, factor (b) without instructing the jury sua sponte
that the commission of uncharged crimes under section 190.3, factor (b) must be proven
45
beyond a reasonable doubt pursuant to People v. Robertson (1982) 33 Cal.3d 21, 53-56.
Defendant correctly points out that People v. Robertson requires the prosecution to prove
beyond a reasonable doubt the commission of uncharged crimes when introduced as a
factor in aggravation, but defendant fails to acknowledge that a reasonable doubt
instruction is not required if evidence of uncharged crimes is admitted for other purposes.
(People v. Rich (1988) 45 Cal.3d 1036, 1121; People v. Robertson, supra, 33 Cal.3d at
p. 60 (conc. opn. of Broussard, J.).)
Here, defendant claims that evidence of uncharged crimes was introduced in
several ways. During his opening statement at the penalty retrial, the prosecutor
explained to the jury that defendant abused his wife and had gone to jail in the past when
his wife called the police. The prosecution elicited testimony from defendant‟s former
brother-in-law that defendant had “mistreated” his wife during their marriage. During
cross-examination of Dr. Verde from the Veterans Administration medical center, the
prosecutor elicited testimony concerning 12 incidents of domestic violence referred to in
defendant‟s medical records. The prosecution also elicited testimony from Pastor Young
that defendant‟s wife stated several weeks before the shootings that defendant had
threatened to shoot her. Finally, the prosecutor stated during his closing argument that
defendant was abusive towards his wife.
The People argue that none of the evidence concerning domestic abuse was
introduced as a factor in aggravation under section 190.3, factor (b), but instead was
introduced to show defendant‟s intent to commit the instant crimes. This was elicited
through defendant‟s brother-in-law‟s testimony concerning defendant‟s past statements
that defendant would not be bothered by shooting a police officer. Similarly, the People
claim that testimony elicited during the cross-examinations of Dr. Verde and Pastor
Young demonstrated defendant‟s unchanging nature (presumably to show that defendant
continued to believe he would not be bothered by shooting a police officer) and the
46
likelihood that defendant would act on threats made previously, or to show a factor in
mitigation, such as defendant‟s acting while under the influence of extreme mental or
emotional disturbance.
The People rely heavily on People v. Rich, in which we concluded that a court
need only give a Robertson reasonable doubt instruction “ „when evidence of other
crimes is introduced or referred to as an aggravating factor‟ ” under section 190.3, factor
(b). (People v. Rich, supra, 45 Cal.3d at p. 1121, quoting People v. Robertson, supra,
33 Cal.3d at p. 60 (conc. opn. of Broussard, J.).) The People contend that the contested
evidence was introduced here for purposes distinct from proving the commission of other
crimes as an aggravating factor under section 190.3, factor (b). We do not find People
v. Rich instructive here because in that case most of the contested other crimes evidence
was introduced by the defendant in the guilt phase of the trial to establish diminished
capacity. (People v. Rich, supra, 33 Cal.3d at pp. 1121-1122.) Here, the contested
evidence was introduced during the penalty retrial, and the purpose for which it was
introduced was not made as clear as in People v. Rich.
Nonetheless, we have concluded that a court‟s failure to provide a Robertson
instruction does not constitute error where, as here, “the prosecutor did not argue that any
evidence relating to . . . factor [(b)] had been presented” even when “the jury was
instructed that in determining penalty it could consider, among other things, the presence
or absence of criminal activity involving the use, attempted use, or threat of violence.”
(People v. Lang (1989) 49 Cal.3d 991, 1040.) In the present case, the prosecutor argued
only that factors (a) and (k) — circumstances of the crime and circumstances extenuating
the gravity of the crime, respectively — were relevant. Accordingly, no Robertson
instruction was required because the evidence was not introduced as evidence of
uncharged crimes under section 190.3, factor (b). (See People v. Lang, supra, 49 Cal.3d
at p. 1040; People v. Poggi (1988) 45 Cal.3d 306, 341.)
47
Even if the trial court‟s failure to provide sua sponte a Robertson instruction
constituted error, any error was harmless because it is not reasonably probable that
providing the omitted instruction would have altered the verdict. (People v. Brown,
supra, 46 Cal.3d at pp. 446-449; People v. Avena (1996) 13 Cal.4th 394, 433-435.)
Defendant did not argue during the penalty phase of his trial, and does not argue now,
that the evidence concerning the alleged domestic abuse was inaccurate. (See People
v. Avena, supra, 13 Cal.4th at p. 433 [uncontroverted other crimes evidence renders
failure to give Robertson instruction nonprejudicial].) Indeed, defense counsel alluded to
the domestic abuse in his own cross-examination of the People‟s witness, Pastor Young.
Pastor Young testified that defendant‟s wife would call seeking counseling because she
was fearful that defendant would harm her; Pastor Young also testified that defendant
brought Pastor Young a gun because he wanted to “remove [it] from [his] home, because
[he] want[ed] to work on [his] relationship with Elaine.” Far from arguing that evidence
concerning the domestic abuse was inaccurate, defendant elicited similar testimony from
the prosecution‟s witnesses during cross-examination. Accordingly, we conclude that the
court‟s error, if any, in failing to instruct the jury pursuant to People v. Robertson was
harmless because it is not reasonably probable that the verdict would have been different.
(People v. Avena, supra, 13 Cal.4th at p. 433.)
6. Alleged Instructional Error Regarding Lack of Prior Felony Convictions
Defendant requested that the jury be instructed that the absence of any prior felony
convictions is a factor in mitigation. The jury was instructed, pursuant to CALJIC
No. 8.85, that it must “consider, take into account, and be guided by the following
factors, if applicable . . . . C, the presence or absence of any prior felony conviction other
than the crimes for which the defendant has been tried in the present proceedings.”
48
Defendant alleges that the court‟s refusal to give a more specific instruction, stating in
particular that the absence of a prior felony conviction is a mitigating factor,7 violated
section 1093, subdivision (f)8, and his state and federal constitutional rights to due
process and a reliable penalty determination. Defendant also contends that the
prosecutor‟s argument that only factors (a) and (k) were relevant, and defendant‟s
counterargument that factors (b) and (c) should also be considered, added ambiguity to
the standard instruction, thus warranting a more specific instruction. We disagree.
We have consistently concluded that CALJIC No. 8.85 is “ „correct and
adequate,‟ ” and that no error results from a court‟s refusal to provide a more specific
instruction informing the jury that it may consider a defendant‟s lack of prior felony
convictions to be a factor in mitigation. (People v. Burney, supra, 47 Cal.4th at p. 262,
quoting People v. Valencia (2008) 43 Cal.4th 268, 309; see also People v. Monterroso
(2004) 34 Cal.4th 743, 788 [“ „[A] trial court need not instruct that the absence of prior
felony convictions is necessarily mitigating,‟ even if the defendant requests such an
instruction”], quoting People v. Pollock (2004) 32 Cal.4th 1153, 1194.) Defendant
presents us with no compelling reason to reconsider our prior holdings.
7. Alleged Instructional Error Regarding Double-Counting Special
Circumstances as Aggravating Factors
Defendant argues that the trial court erroneously refused his request to instruct the
jury that it “should not double count aggravating factors which are special
7
The instruction requested by defendant and rejected by the trial court provided:
“The absence of any felony convictions prior to the crime[s] for which the defendant has
been tried in the present proceedings is a mitigating factor.”
8
Section 1093, subdivision (f) provides, in pertinent part, “The judge may then
charge the jury, and shall do so on any points of law pertinent to the issue, if requested by
either party . . . .”
49
circumstances,” and that this error violated his rights to due process and a reliable penalty
determination under the Eighth and Fourteenth Amendments to the United States
Constitution. We disagree. Even if the court erred by failing to provide defendant‟s
requested instruction, we have repeatedly held that no prejudice results from such an
error where, as here, the prosecutor does not suggest that double-counting aggravating
factors is permissible and the jury receives the standard instruction concerning the
weighing of aggravating and mitigating factors. (People v. Melton (1988) 44 Cal.3d 713,
774-775; see People v. Ayala (2000) 24 Cal.4th 243, 289 [standard instruction does not
encourage double-counting of aggravating factors]; see also People v. Burney, supra,
47 Cal.4th at p. 267.)
8. Alleged Instructional Error Regarding Jury’s Consideration of
Circumstances of Crime as Aggravating Evidence Under Section 190.3,
Factor (b)
Defendant argues that the jury was improperly permitted to consider the
circumstances of the crimes as uncharged violent crimes under section 190.3, factor (b)
(factor (b)) in violation of his state and federal constitutional rights to due process, a fair
trial, and a reliable penalty determination. Specifically, defendant contends that evidence
concerning the events leading up to the shootings of Deputies Lehmann and Haugen,
which formed the basis for the additional charged crimes of assault with a deadly weapon
of Brown (which was dismissed during trial) and misdemeanor spousal abuse of Elaine
Russell (to which defendant pleaded no contest before trial), were improperly considered
by the jury as factor (b) evidence. Defendant‟s claim fails.
Factor (b) permits a jury to consider “[t]he presence or absence 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 court
instructed the jury pursuant to CALJIC No. 8.85, which, with regard to factor (b),
informs the jury that it may consider evidence of criminal activity “other than the
50
crime[s] for which the defendant has been tried in the present proceedings.” Here, the
only evidence about which defendant complains concerns the circumstances of the
charged crimes, not criminal activity other than charged crimes and circumstances
surrounding them. Accordingly, defendant‟s claim that the jury was improperly
permitted to consider evidence regarding the circumstances of the charged crimes as
factor (b) evidence is belied by the language of the instruction provided to the jury that it
could only consider evidence of criminal activity other than the crimes for which
defendant was being tried.
Indeed, in the present case the prosecutor informed the jury that the only relevant
section 190.3 factors were factors (a) and (k) — the prosecution did not suggest to the
jury that factor (b) was relevant or that it should consider the circumstances of the instant
crimes as factor (b) evidence. Defense counsel argued to the contrary, informing the jury
that it could “also consider factor [(b)], presence and absence of other criminal activity.”
Defendant complains that instructing the jury with both factor (a) and factor (b)
improperly permits the jury to double count the same evidence. Defendant‟s claim is
forfeited to the extent that he did not object to the instruction being given, and even
argued to the jury that it could and should consider factor (b). (See People v. Valdez
(2004) 32 Cal.4th 73, 113; see also People v. Carpenter (1997) 15 Cal.4th 312, 390,
superseded by statute on other grounds as recognized in Verdin v. Superior Court (2008)
43 Cal.4th 1096.) Moreover, as previously explained, the language of the instruction
reveals the flaw in defendant‟s argument. Factor (a) permits the jury to consider the
circumstances of the charged offenses, and factor (b) permits the jury to consider a
defendant‟s violent crimes other than the crime(s) at issue in the proceeding before it.
Accordingly, we conclude that a reasonable jury would not conflate or confuse the
instructions concerning factors (a) and (b), and the trial court did not err by instructing
the jury consistently with factor (b). (See People v. Melton, supra, 44 Cal.3d at p. 763;
51
People v. Ashmus (1991) 54 Cal.3d 932, 998, abrogated on other grounds as recognized
in People v. Yeoman (2003) 31 Cal.4th 93, 117.) Even assuming the instruction was
erroneously given, no prejudice resulted because it was never suggested to the jury, or
even implied, that “circumstances of the murder should be considered both under factor
(a) and as criminal activity under factor (b).” (People v. Coleman (1989) 48 Cal.3d 112,
157.)
9. Penalty Phase Instructional Challenges
Defendant raises a host of federal constitutional challenges to the instructions
given during the penalty phase of the trial to preserve them, recognizing that this court
has repeatedly rejected similar contentions. Defendant argues that the court erred by
failing to instruct the jury that it must find beyond a reasonable doubt that aggravating
factors outweigh mitigating factors before it imposes a sentence of death. We have
repeatedly rejected this claim, and defendant presents us with no reason to reconsider our
prior holdings. (People v. Martinez (2009) 47 Cal.4th 399, 455.) Defendant urges us to
reconsider our holding in light of the high court‟s decisions in Apprendi v. New Jersey
(2000) 530 U.S. 466 and Ring v. Arizona (2002) 536 U.S. 584, which we have
consistently declined to do. (People v. Martinez, supra, 47 Cal.4th at p. 455 [“ „ “[u]nlike
the guilt determination, „the sentencing function is inherently moral and normative, not
factual‟ [citation] and, hence, not susceptible to a burden-of-proof quantification.” ‟ ”],
quoting People v. Manriquez (2005) 37 Cal.4th 547, 589.) Defendant claims his Eighth
and Fourteenth Amendment rights were violated because the jury was not told that it was
permitted to impose death only if it were persuaded beyond a reasonable doubt that
aggravating factors outweighed mitigating factors. We have repeatedly rejected this
claim. (People v. Cruz (2008) 44 Cal.4th 636, 681.) Defendant argues that the Sixth,
Eighth and Fourteenth Amendments to the United States Constitution require that the
state bear some burden of persuasion at the penalty stage, which the jury instructions
52
failed to provide. We have consistently rejected this contention. (See People
v. Manriquez, supra, 37 Cal.4th at p. 589.) We similarly reject defendant‟s claims that
the penalty phase instructions were constitutionally deficient because they did not
mandate juror unanimity concerning aggravating factors (People v. Martinez, supra, 47
Cal.4th at p. 455), and we reject defendant‟s claim that the jury should have been
instructed regarding a “presumption of life.” (People v. McWhorter, supra, 47 Cal.4th at
p. 379.)
10. Alleged Instructional Error Regarding Scope of Jury’s Sentencing
Discretion and Nature of Deliberative Process
Defendant argues that the concluding instruction given to the jury, a modified
version of CALJIC No. 8.88, was flawed because it failed to adequately convey
deliberative principles, was misleading and was vague.9 Defendant contends these
9
The instruction read to the jury provided: “It is now your duty to determine which
of the two penalties, death or confinement in the state prison for life without the
possibility of parole, shall be imposed on the defendant. [¶] After hearing — after
having heard all of the evidence and having heard and considered the arguments of
counsel, you shall consider, take into account, and be guided by the applicable factors of
aggravating and mitigating circumstances upon which you have been instructed. [¶] An
aggravating factor is any fact, condition or event attending the commission of a crime
which increases its guilt or enormity or adds to its injurious consequences which is above
and beyond the elements of the crime itself. [¶] A mitigating circumstance is any fact,
condition or event which does not constitute a justification or excuse for the crime in
question, but may be considered as an extenuating circumstance in determining the
appropriateness of the death penalty. [¶] The weighing of aggravating and mitigating
circumstances does not mean a mere mechanical counting of factors on each side of an
imaginary scale or the arbitrary assignments of weights to any of them. You are free to
assign whatever moral or sympathetic value you deem appropriate to each and all of the
various factors you are permitted to consider. [¶] In weighing the various circumstances
you determine under the relevant evidence which penalty is justified and appropriate by
considering the totality of the aggravating circumstances with the totality of the
mitigating circumstances. [¶] To return a judgment of death each of you must be
persuaded that the aggravating circumstances are so substantial in comparison with the
(footnote continued on next page)
53
defects violated his rights to due process, a fair trial by jury, and a reliable penalty
determination under the Sixth, Eighth and Fourteenth Amendments to the United States
Constitution. Not so.
Defendant argues that the phrase “so substantial” in the final paragraph of the
instruction — that jurors may return a verdict of death if each is “persuaded that the
aggravating circumstances are so substantial in comparison with the mitigating
circumstances that it warrants a judgment of death” (italics added) — created a vague and
directionless standard in violation of the Eighth and Fourteenth Amendments to the
United States Constitution. We disagree. As an initial matter, we note that defendant did
not request a clarifying instruction; accordingly, any objection he has to the instruction is
forfeited. (People v. Arias (1996) 13 Cal.4th 92, 171.) Defendant‟s claim also fails on
the merits. We have consistently held that the “so substantial” language in CALJIC
No. 8.88 “is not inadequate or misleading. By advising that a death verdict should be
returned only if aggravation is „so substantial in comparison with‟ mitigation that death is
„warranted,‟ the instruction clearly admonishes the jury to determine whether the balance
of aggravation and mitigation makes death the appropriate penalty.” (People v. Arias,
supra, 13 Cal.4th at p. 171; see also People v. Breaux (1991) 1 Cal.4th 281, 315-316.)
Defendant next contends that the instruction‟s use of the term “warrants” was
inadequate because jurors are called upon to decide whether death is the “appropriate”
penalty, not whether it is warranted. We rejected an identical argument in People v.
Breaux, concluding that the “contention is spurious.” (People v. Breaux, supra, 1 Cal.4th
(footnote continued from previous page)
mitigating circumstances that it warrants death instead of life without possibility of
parole.”
54
at p. 316; see also People v. Friend (2009) 47 Cal.4th 1, 90 [“The phrases „so substantial‟
and „warranted‟ in CALJIC No. 8.88 are not unconstitutionally vague.”].) Finally
defendant suggests that the instruction was inadequate because it failed to convey to the
jury that it must impose a life sentence if it did not find that aggravating factors
outweighed mitigating factors. We have consistently concluded otherwise. (People v.
Friend, supra, 47 Cal.4th at p. 90; People v. Coffman and Marlow (2004) 34 Cal.4th 1,
124.)
11. Alleged Instructional Error Regarding Section 190.3
Defendant raises numerous challenges to the jury instructions concerning section
190.3 (CALJIC Nos. 8.85 & 8.88, as given), all of which this court has repeatedly
rejected. Defendant first contends that section 190.3, factor (a) violates the Fifth, Sixth,
Eighth, and Fourteenth Amendments to the United States Constitution because the
“circumstances of the crime” factor is applied in “a wanton and freakish manner”
resulting in arbitrary and capricious imposition of the death penalty. We have previously
considered and rejected this claim. (People v. Gutierrez (2009) 45 Cal.4th 789, 831.)
Defendant next contends that the trial court erred by failing to delete inapplicable factors
from CALJIC No. 8.85 as provided to the jury; we have consistently concluded
otherwise. (People v. McWhorter, supra, 47 Cal.4th at p. 378.) We have also
consistently rejected the claim that the failure to instruct the jury as to which factors were
mitigating constituted error. (Ibid.) We have likewise repeatedly rejected the claim that
adjectives such as “extreme” and “substantial” act as a barrier to the jury‟s consideration
of factors in mitigation. (Id. at pp. 378-379.)
Defendant also argues that the failure of CALJIC Nos. 8.85 and 8.88 to require
written findings deprived him of his rights to due process, meaningful appellate review,
and equal protection pursuant to the Eighth and Fourteenth Amendments to the United
States Constitution. We have consistently concluded otherwise. (People v. Geier (2007)
55
41 Cal.4th 555, 620.) Finally, defendant erroneously suggests that California‟s death
penalty scheme denies capital defendants equal protection of the laws; we have
repeatedly concluded to the contrary. (People v. Gutierrez, supra, 45 Cal.4th at p. 831;
People v. Zamudio (2008) 43 Cal.4th 327, 373.)
12. Intercase Proportionality Review
Defendant argues that the California capital sentencing scheme‟s lack of intercase
proportionality review violates his rights to be free from the arbitrary and capricious
imposition of a capital sentence pursuant to the Eighth and Fourteenth Amendments to
the United States Constitution. We have repeatedly rejected similar claims, and are
presented with no arguments compelling us to alter our long-standing rule. (People
v. Gutierrez, supra, 45 Cal.4th at p. 833; People v. Hoyos (2007) 41 Cal.4th 872, 927.)
13. Cumulative Error
Defendant argues that even if individual errors do not warrant reversal, the
cumulative effect of multiple errors resulted in prejudice to defendant mandating reversal.
We disagree. To the extent we concluded or assumed that the trial court erred, no single
error warranted reversal, and we are not persuaded that reversal is warranted when those
same nonprejudicial errors are considered collectively.
14. Alleged Violation of International Law, and of the Eighth and Fourteenth
Amendments to the United States Constitution
Defendant‟s final contention — that his death sentence and California‟s capital
sentencing scheme are inconsistent with international norms, and therefore violate the
Eighth and Fourteenth Amendments to the United States Constitution — has been
repeatedly rejected by this court. (People v. Curl (2009) 46 Cal.4th 339, 362-363.)
56
III. CONCLUSION
We affirm the judgment.
MORENO, J.
WE CONCUR:
GEORGE, C.J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
57
CONCURRING OPINION BY KENNARD, J.
The court‟s opinion, which I have signed, states that the waiting and watching
required to support a first degree murder conviction on a lying-in-wait theory need not
continue for any particular length of time. For this reason, it rejects defendant‟s
argument that the trial court should have instructed the jury that the period of waiting and
watching must be substantial. (Maj. opn., ante, at pp. 12-17.) I agree.
I write separately to explain why my concurrence here does not conflict with my
concurring and dissenting opinion in People v. Stevens (2007) 41 Cal.4th 182, 214
(Stevens). There, I expressed the view that a period of waiting and watching must be
substantial. But in Stevens I was addressing lying in wait as a special circumstance (Pen.
Code, § 190.2, subd. (a)(15)) rather than, as here, lying in wait as a form of first degree
murder.
As I explained in Stevens, California‟s death penalty law, which the voters enacted
in 1978, contains a list of special circumstances that make a first degree murder
punishable by death. (Pen. Code, § 190.2, subd. (a).) The list includes lying in wait, but
not premeditation and deliberation. In this way, the provisions of our death penalty law
reflect a determination by the voters that lying-in-wait murder is “more heinous than
premeditated murder.” (Stevens, supra, 41 Cal.4th at p. 215 (conc. & dis. opn. of
Kennard, J.).) Thus, I concluded, the voters must have intended that the lying-in-wait
1
special circumstance be defined “in a manner that differed significantly from
premeditated murder.” (Ibid.)
To make that important distinction, I concluded that the waiting and watching
required to support the lying-in-wait special circumstance must continue for a substantial
period of time. (Stevens, supra, 41 Cal.4th at p. 215 (conc. & dis. opn. of Kennard, J.).)
Because the issue defendant raises here concerns lying in wait as a form of first degree
murder, and not as a special circumstance, there is not the same need to distinguish
defendant‟s crime from other premeditated and deliberate murders. Indeed, this court has
held that, for establishing that a murder is of the first degree, “proof of lying-in-wait” is
“the functional equivalent of proof of premeditation, deliberation and intent to kill.”
(People v. Ruiz (1988) 44 Cal.3d 589, 614.) In other words, submitting evidence of lying
in wait is merely one of several ways of establishing premeditation and deliberation.
Therefore, I join in the court‟s opinion that, for purposes of establishing the degree of a
murder, waiting and watching need not continue for any particular length of time. (See
People v. Moon (2005) 37 Cal.4th 1, 23.)
KENNARD, J.
2
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Russell
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S075875
Date Filed: November 15, 2010
__________________________________________________________________________________
Court: Superior
County: Riverside
Judge: Patrick F. Magers
__________________________________________________________________________________
Counsel:
Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, Kent Barkhurst and Nina
Rivkind, Deputy State Public Defenders, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons,
Assistant Attorney General, Holly D. Wilkens, Rhonda Cartwright-Ladendorf and Annie Featherman Fraser, Deputy
Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Nina Rivkind
Deputy State Public Defender
221 Main Street, 10th Floor
San Francisco, CA 94105
(415) 904-5600
Annie Featherman Fraser
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 645-2106
Automatic appeal from a judgment of death.
Opinion Information
| Date: | Citation: | Docket Number: | Category: | Status: |
| Mon, 11/15/2010 | 50 Cal. 4th 1228, 242 P.3d 68, 117 Cal. Rptr. 3d 615 | S075875 | Automatic Appeal | submitted/opinion due |
Parties
| 1 | The People (Respondent) Represented by Annie Featherman Fraser Office of the Attorney General P.O. Box 85266 San Diego, CA |
| 2 | The People (Respondent) Represented by Attorney General - San Diego Office Rhonda Cartwright-Ladendorf, Deputy Attorney General P.O. Box 85266 San Diego, CA |
| 3 | Russell, Timothy (Appellant) San Quentin State Prison Represented by Office of the State Public Defender-S.F. Nina Rivkind, Deputy State Public Defender 221 Main Street, 10th Floor San Francisco, CA |
| 4 | Russell, Timothy (Appellant) San Quentin State Prison Represented by Office of the State Public Defender-S.F. Kent Barkhurst, Deputy State Public Defender 221 Main Street, 10th Floor San Francisco, CA |
| Dockets | |
| Jan 8 1999 | Judgment of death |
| Jan 11 1999 | Filed certified copy of Judgment of Death Rendered 1-8-99. |
| Jan 11 1999 | Penal Code sections 190.6 et seq. apply to this case |
| Apr 9 1999 | Record certified for completeness |
| Dec 22 2003 | Filed: appellant's application for appointment of counsel (IFP form). |
| Dec 22 2003 | Order appointing State Public Defender filed to represent appellant for the direct appeal. |
| Jan 2 2004 | Received: notice from superior court that record was transmitted to appellant's counsel on 12-30-2003. |
| Jan 5 2004 | Date trial court delivered record to appellant's counsel (6,665-page record) (see Calif. Rules of Court, rule 34(e)(1); the date of delivery is the date of mailing plus five days.) (Note: record was delivered on 12-30-2003). |
| Jan 5 2004 | Appellant's opening brief letter sent, due: August 2, 2004. |
| Feb 23 2004 | Counsel's status report received (confidential) from State P.D. |
| Apr 21 2004 | Counsel's status report received (confidential) from State P.D. |
| Jun 22 2004 | Counsel's status report received (confidential) from State P.D. |
| Aug 2 2004 | Request for extension of time filed to file appellant's opening brief. (1st request) |
| Aug 2 2004 | Counsel's status report received (confidential) from State P.D. |
| Aug 6 2004 | Extension of time granted to 10/1/2004 to file appellant's opening brief. |
| Sep 28 2004 | Received copy of appellant's record correction motion Motion to correct, complete and settle the record on appeal. (31 pp.) |
| Oct 1 2004 | Counsel's status report received (confidential) from State P.D. |
| Oct 1 2004 | Request for extension of time filed to file AOB. (2nd request) |
| Oct 13 2004 | Extension of time granted to 11/30/2004 to file appellant's opening brief. |
| Nov 24 2004 | Counsel's status report received (confidential) from State P.D. |
| Nov 24 2004 | Request for extension of time filed to file appellant's opening brief. (3rd request) |
| Dec 1 2004 | Extension of time granted to February 1, 2005 to file appellant's opening brief. After that date, only nine further extensions totaling about 490 additional days will be granted. Extension is granted based upon Deputy State Public Defender Kent Barkhurst's representation that he anticipates filing that brief by June 2006. |
| Feb 2 2005 | Counsel's status report received (confidential) from State P.D. |
| Feb 2 2005 | Request for extension of time filed to file appellant's opening brief. (4th request) |
| Feb 4 2005 | Extension of time granted to 4/1/2005 to file appellant's opening brief. After that date, only eight further extensions totaling about 430 additional days will be granted. Extension is granted based upon Deputy State Public Defender Kent Barkhurst's representation that he anticipates filing that brief by 6/2006. |
| Mar 23 2005 | Note: record arrived from superior court. |
| Mar 25 2005 | Request for extension of time filed to file appellant's opening brief. (4th request) |
| Mar 25 2005 | Counsel's status report received (confidential) from State P.D. |
| Mar 30 2005 | Extension of time granted to 5/31/2005 to file appellant's oepning brief. After that date, only seven further extensions totaling about 370 additional days will be granted. Extension is granted based upon Deputy State Public Defender Kent Barkhurst's representation that he anticipates filing that brief by 6/2006. |
| May 25 2005 | Request for extension of time filed to file appellant's opening brief. (5th request) |
| May 25 2005 | Counsel's status report received (confidential) from State P.D. |
| May 31 2005 | Extension of time granted to 8/1/2005 to file appellant's opening brief. After that date, only six further extensions totaling about 310 additional days will be granted. Extension is granted based upon Deputy State Public Defender Kent Barkhurst's representation that he anticipates filing that brief by 6/2006. |
| Jul 22 2005 | Counsel's status report received (confidential) from State P.D. |
| Jul 22 2005 | Request for extension of time filed to file appellant's opening brief. (6th request) |
| Jul 26 2005 | Extension of time granted to 9/30/2005 to file appellant's opening brief. After that date, only five further extensions totaling about 250 additional days will be granted. Extension is granted based upon Deputy State Public Defender Kent Barkhurst's representation that he anticipates filing that brief by 6/2006. |
| Aug 10 2005 | Counsel's status report received (confidential) (supplemental) from State P.D. |
| Sep 27 2005 | Counsel's status report received (confidential) from State P.D. |
| Sep 27 2005 | Request for extension of time filed to file appellant's opening brief. (7th request) |
| Oct 3 2005 | Extension of time granted to 11/29/2005 to file appellant's opening brief. After that date, only four further extensions totaling about 190 additional days will be granted. Extension is granted based upon Deputy State Public Defender Kent Barkhurst's representation that he anticipates filing that brief by 6/2006. |
| Nov 29 2005 | Request for extension of time filed to file appellant's opening brief. (8th request) |
| Nov 29 2005 | Counsel's status report received (confidential) from State P.D. |
| Dec 9 2005 | Extension of time granted to 1/30/2006 to file appellant's opening brief. After that date, only three further extensions totaling about 130 additional days will be granted. Extension is granted based upon Deputy State Public Defender Kent Barkhurst's representation that he anticipates filing that brief by 6/2006. |
| Dec 13 2005 | Note: clerk's third supplemental transcript returned to trial court, not in compliance with rule 34.1(c). Transcript to be corrected and returned to this court and counsel on or before 1/6/2006. |
| Jan 27 2006 | Request for extension of time filed to file appellant's opening brief. (9th request) |
| Feb 1 2006 | Record on appeal filed clerk's transcript 30 volumes (6934 pp.) and reporter's transcript 56 volumes (3454 pp.), including material under seal; ASCII disks. Clerk's transcript includes 4194 pp. of juror questionnaires. |
| Feb 1 2006 | Letter sent to: counsel advising record on appeal, certified for accuracy, filed this date. |
| Feb 2 2006 | Counsel's status report received (confidential) from State P.D. |
| Feb 3 2006 | Extension of time granted to 4/3/2006 to file the appellant's opening brief. After that date, only two further extensions totaling about 70 additional days will be granted. Extension is granted based upon Deputy State Public Defender Kent Barkhurst's representation that he anticipates filing that brief by June 2006. |
| Apr 3 2006 | Request for extension of time filed to file appellant's opening brief. (10th request) |
| Apr 3 2006 | Counsel's status report received (confidential) from State P.D. |
| Apr 10 2006 | Extension of time granted to June 2, 2006 to file the appellant's opening brief. After that date, only two further extensions totaling about 73 additional days will be granted. Extension is granted based upon Supervising Deputy State Public Defender Kent Barkhurst's representation that he anticipates filing that brief by August 15, 2006. |
| Jun 1 2006 | Request for extension of time filed to file appellant's opening brief. (11th request) |
| Jun 1 2006 | Counsel's status report received (confidential) from State P.D. |
| Jun 8 2006 | Extension of time granted to August 1, 2006 to file the appellant's opening brief. After that date, only one further extension totaling about 14 additional days will be granted. Extension is granted based upon Supervising Deputy State Public Defender Kent Barkhurst's representation that he anticipates filing that brief by August 15, 2006. |
| Jul 28 2006 | Counsel's status report received (confidential) from State P.D. |
| Jul 28 2006 | Request for extension of time filed to file appellant's opening brief. (12th request) |
| Aug 2 2006 | Extension of time granted to October 2, 2006 to file the appellant's opening brief. After that date, only one further extension totaling about 16 additional days will be granted. Extension is granted based upon Supervising Deputy State Public Defender Ken Barkhurst's representation that he anticipates filing that brief by October 16, 2006. |
| Sep 28 2006 | Request for extension of time filed to file appellant's opening brief. (13th request) |
| Sep 29 2006 | Counsel's status report received (confidential) from State P.D. |
| Oct 5 2006 | Extension of time granted to November 16, 2006 to file the appellant's opening brief. After that date, no further extension will be granted. Extension is granted based upon Supervising Deputy State Public Defender Kent Barkhurst's representation that he anticipates filing that brief by November 16, 2006. |
| Nov 14 2006 | Request for extension of time filed to file appellant's opening brief. (14th request) |
| Nov 21 2006 | Extension of time granted to December 18, 2006 to file the appellant's opening brief. After that date, no further extension will be granted. Extension is granted based upon Supervising Deputy State Public Defender Kent Barkhurst's representation that he anticipates filing that brief by December 18, 2006. |
| Dec 13 2006 | Respondent's brief letter sent; due: April 11, 2007 |
| Dec 13 2006 | Appellant's opening brief filed (72,804 words; 258 pp.) |
| Apr 6 2007 | Request for extension of time filed to file respondent's brief. (1st request) |
| Apr 11 2007 | Extension of time granted to June 11, 2007 to file the respondent's brief. After that date, only two further extension totaling about 120 additional days are contemplated. Extension is granted based upon Supervising Deputy Attorney General Rhonda Cartwright-Ladendorf's representation that she anticipates filing that brief by October 11, 2007. |
| Jun 6 2007 | Request for extension of time filed to file respondent's brief. (2nd request) |
| Jun 11 2007 | Extension of time granted to July 9, 2007 to file the respondent's brief. After that date, only one further extension totaling about 60 additional days are contemplated. Exetension is granted based upon Supervising Deputy Attorney General Rhonda L. Cartwright-Ladendorf's representation that she anticipates filing that brief by October 11, 2007. |
| Jul 2 2007 | Request for extension of time filed to file respondent's brief. (3rd request) |
| Jul 5 2007 | Extension of time granted to September 10, 2007 to file the respondent's brief. After that date, only one further extension totaling about 30 additional days are contemplated. Extension is granted based upon Supervising Deputy Attorney General Rhonda L. Cartwright-Ladendorf's represenatation that she anticipates filiing that that brief by October 11, 2007. |
| Sep 4 2007 | Request for extension of time filed to file respondent's brief. (3rd request) |
| Sep 11 2007 | Extension of time granted Good cause appearing, and based upon Supervising Deputy Attorney General Rhonda L. Cartwright-Ladendorf's representation that she anticipates filing the respondent's brief by October 11, 2007, counsel's request for an extension of time in which to file that brief is granted to October 10, 2007. After that date, no further extension is contemplated. |
| Sep 13 2007 | Order filed The order filed on September 11, 2007, is amended to read as follows: Good cause appearing, and based upon Supervising Deputy Attorney General Rhonda L. Cartwright-Ladendorf's representation that she anticipates filing the responsent's brief by October 10, 2007, counsel's request for an extension of time in which to file that brief is granted to October 10, 2007. After that date, no further extension is contemplated. |
| Oct 10 2007 | Respondent's brief filed (36,419 words; 115 pp.) |
| Oct 10 2007 | Note: appellant's reply brief due: December 10, 2007. |
| Oct 29 2007 | Filed: Letter from respondent dated October 29, 2007 re Errata to Respondent's Brief. |
| Dec 7 2007 | Request for extension of time filed to file appellant's reply brief. (1st request) |
| Dec 11 2007 | Extension of time granted Good cause appearing, and based upon Supervising Deputy State Public Defender Kent Barkhurst's representation that he anticipates filing the appellant's reply brief by June 9, 2009, counsel's request for an extension of time in which to file that brief is granted to February 8, 2008. After that date, only eight further extensions totaling about 480 additional days will be granted. |
| Feb 7 2008 | Request for extension of time filed to file appellant's reply brief. (2nd request) |
| Feb 13 2008 | Extension of time granted Good cause appearing, and based upon Supervising Deputy State Public Defender Kent Barkhurst's representation that he anticipates filing the appellant's reply brief by June 9, 2008, counsel's request for an extension of time in which to file that brief is granted to April 8, 2008. After that date, only one further extension totaling about 60 additional days is contemplated. |
| Apr 8 2008 | Request for extension of time filed to file appellant's reply brief (3rd request) |
| Apr 11 2008 | Extension of time granted Good cause appearing, and based upon Supervising Deputy State Public Defender Kent Barkhurst's representation that he anticipates filing the appellant's reply brief by August 8, 2008, counsel's request for an extension of time in which to file that brief is granted to June 9, 2008. After that date, only one further extension totaling about 60 additional days is contemplated. |
| Jun 9 2008 | Request for extension of time filed (AA) to file appellant's reply brief. (4th request) |
| Jun 17 2008 | Extension of time granted Good cause appearing, and based upon Supervising Deputy State Public Defender Kent Barkhurst's representation that he anticipates filing the appellant's reply brief by August 8, 2008, counsel's request for an extension of time in which to file that brief is granted to August 8, 2008. After that date, no further extension is contemplated. |
| Aug 7 2008 | Request for extension of time filed (AA) to file appellant's reply brief. (5th request) |
| Aug 12 2008 | Extension of time granted Good cause appearing, and based upon Supervising Deputy State Public Defender Kent Barkhurst's representation that he anticipates filing the appellant's reply brief by October 7, 2008, counsel's request for an extension of time in which to file that brief is granted to October 7, 2008. After that date, no further extension is contemplated. |
| Oct 7 2008 | Appellant's reply brief filed (17,143 words; 69 pp.) |
| Jan 6 2010 | Oral argument letter sent advising counsel that the court could schedule this case for argument as early as the March calendar, to be held the week of March 1, 2010, in San Francisco. 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. |
| Mar 3 2010 | Case ordered on calendar to be argued Tuesday, April 6, 2010, at 2:00 p.m., in Los Angeles |
| Mar 10 2010 | Received: appearance sheet from Deputy Attorney General Annie Featherman Fraser, indicating 30 minutes for oral argument for respondent. |
| Mar 15 2010 | Received: appearance sheet from Deputy State Public Defender Kent Barkhurst indicating 30 minutes for oral argument for appellant. |
| Mar 15 2010 | Filed: appellant's focus issues letter, dated March 15, 2010. |
| Mar 16 2010 | Filed: respondent's focus issues letter, dated March 12, 2010. |
| Mar 15 2010 | Received: appearance sheet from Deputy State Public Defender Kent Barkhurst, indicating 30 minutes for oral argument for appellant. |
| Mar 22 2010 | Exhibit(s) lodged People's exhibits 31 and 33 from superior court. (videos) |
| Mar 24 2010 | Filed: Letter, dated March 24, 2010, from Michael Hersek, State Public Defender, requesting oral argument be rescheduled for 90 days from April 1, 2010. |
| Mar 25 2010 | Argument rescheduled To be called and continued to a future oral argument calendar. |
| Apr 6 2010 | Cause called and continued continued to a future oral argument calendar |
| May 21 2010 | Received: Letter, dated May 19, 2010 from Deputy Attorney General Annie Featherman Frasier advising she will be unavailable on September 7, 2010 should oral argument for this case be calendared during the week of September 6, 2010. |
| May 25 2010 | Letter sent to: State Public Defender Michael Hersek regarding assignment of attorney for oral argument. |
| May 27 2010 | Received: letter from State Public Defender Michael Hersek, dated May 27, 2010, in response to court's letter of May 25, 2010. Supervising Deputy SPD Nina Rivkind has been assigned responsibility for oral argument, and will also be filing a supplemental brief on or before July 1, 2010. She will be prepared to argue the case in September. |
| Jul 1 2010 | Application to file over-length brief filed by appellant, "Motion for Leave to File Oversized Supplemental Opening Brief" |
| Jul 9 2010 | Order filed Good cause appearing, appellant's "Motion for Leave to File Oversized Supplemental Opening Brief" is granted. The supplemental respondent's brief must be served and filed on or before July 29, 2010. Appellant's supplemental reply brief will be due within 10 days of the filing of the supplemental respondent's brief. |
| Jul 9 2010 | Supplemental brief filed Appellant: Russell, TimothyAttorney: Office of the State Public Defender-S.F. by appellant, Supplemental Opening Brief (6,466 words; 24 pp.) |
| Jul 28 2010 | Supplemental brief filed Respondent: The PeopleAttorney: Attorney General - San Diego Office by respondent, Respondent's Supplemental Brief (4,991 words; 17 pp.) |
| Aug 2 2010 | Case ordered on calendar To be argued Wednesday, September 8, 2010, at 1:30 p.m. in San Francisco. |
| Aug 9 2010 | Supplemental brief filed Appellant: Russell, TimothyAttorney: Office of the State Public Defender-S.F. by appellant, "Appellant's Supplemental Reply Brief" (3,539 words; 14 pp.) |
| Aug 11 2010 | Received: appearance sheet from Deputy State Public Defender Nina Rvikind, indicating 30 minutes for oral argument for appellant. |
| Aug 12 2010 | Received: appearance sheet from Deputy Attorney General Annie Featherman Fraser, indicating 30 minutes for oral argument for respondent. |
| Aug 26 2010 | Exhibit(s) lodged People's exhibit 30 from superior court.(video tape) |
| Sep 8 2010 | Cause argued and submitted |
| Nov 12 2010 | Notice of forthcoming opinion posted To be filed on Monday, November 15, 2010 at 10 a.m. |
| Briefs | |
| Dec 13 2006 | Appellant's opening brief filed |
| Oct 10 2007 | Respondent's brief filed |
| Oct 7 2008 | Appellant's reply brief filed |
| Brief Downloads | |
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| Dec 23, 2010 Annotated by achong | Facts The deputies were responding to a domestic abuse report against the defendant placed by his wife. The defendant had a "tumultuous and violent relationship" with wife Elaine Russell. The day before the murders took place, the wife had asked the defendant to leave their marital home. The defendant left but returned the next day and tried to talk to the wife. He had been drinking and appeared a little intoxicated; he became more agitated in the confrontation, and then kicked the wife and threw her to the floor. He warned his wife not to call the police or he would kill her and the cops. He left the house to pick up a rifle, and obtained bullets for the gun, saying that he was "going to kill [the police]." When the officers arrived on scene, the defendant turned off the lights at the house and left, hoping to sneak past the officers. He saw the silhouettes of the officers, and was concerned that they would see him. He shot at the officers, hoping to "scare 'em off"; he fired several shots from a crouched position without sighting through the rifle scope, and fled. The officers died at the scene; their weapons were still holstered. Procedural History Holding Issues A. Guilt Phase 1. Did the trial court erroneously instruct the jury on the lying-in-wait theory of murder as, the defendant argued, there was no substantial period of watching and waiting prior to the shooting? 2. Did the Court violate his rights under the Fifth, Sixth and Fourteen Amendments by denying his motions to have the jury view the murder scene? 3. Did the court violate the defendant's rights to due process, a fair trial, and a unanimous jury verdict by questioning a juror after allegations of impropriety? 4. Did the court's jury instruction based on CALJIC No. 2.03 about making a willfully false or deliberately misleading statement as a circumstance tending to prove a consciousness of guilt, violate the defendant's sixth and fourteenth amendment rights and article I, sections 7, 15 and 16 of the California Constitution? 5. Did the court violate the defendant's right to due process by not requiring jury unanimity in its decision about which statutory form of first degree murder he committed -- deliberate and premeditated or lying-in-wait? B. Penalty Retrial 1. Did the court's denial of his request to introduce videotaped statements as evidence of the circumstances of the crime and of this character violate his rights to due process and a fair and reliable penalty determination? 2. Did the trial court erroneously excuse seven prospective jurors? 3. Was the presentation of victim impact statements at his penalty retrial violate his federal constitutional rights to due process, a fair trial, and a reliable penalty determination? Was the evidence about the character of the victims excessive and partially inadmissible, the testimony of the victims' children cumulative and prejudicial, or victim impact evidence irrelevant or inadmissible? 4. Did the Court err in refusing to instruct the jury and then failing to instruct the jury sua sponte concerning victim impact evidence? 5. Did the Court err in admitting evidence of uncharged crimes as an aggravating factor without instructing the jury sua sponte that the commission of uncharged crimes under section 190.3 factor (b) must be proven beyond a reasonable doubt? 6. Did the court err in denying the defendant's request for a jury instruction that the absence of any prior felony convictions is a factor in mitigation? 7. Did the court err in refusing the defendant's request for the jury to be instructed that it should not double-count aggravating factors, thus violating his rights to due process and a reliable penalty determination? 8. Did the fact that the jury was permitted to consider the circumstances of the crimes as uncharged violent crimes under section 190.3 factor (b) violate his state and federal constitutional rights to due process, a fair trial, and a reliable penalty determination? 9. Did the trial court's instructions to the jury present any constitutional challenges, for example, that the court must find beyond a reasonable doubt that aggravating factors outweigh mitigating factors before imposing the death penalty? 10. Did the phrase "so substantial" in the jury instruction -- that jurors may return a verdict of death if each is "persuaded that the aggravating circumstances are so substantial in comparison with the mitigating circumstances that it warrants [a judgment] of death" -- violate the defendant's Eighth and Fourteenth Amendments to the United States Constitution? Analysis A. Guilt Phase 1. The Court stated there are three elements to lying-in-wait murder under section 189: firstly, a concealment of purpose, secondly, a substantial period of watching and waiting for an opportune time to act, and thirdly, immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage. The Court found that the use of the jury instruction on elements of first degree murder by lying-in-wait pursuant to CALJIC No. 8.25 to be appropriate and adequate. While the period of watching waiting must be "substantial," the Court has held that the "precise period of time is also not critical," (People v Ceja (1993) 4 Cal.4th 1134) and that "a few minutes can suffice." (People v Moon (2005) 37 Cal.4th 1). 2. The Court held that denials of the defendant's motions to have jury view the crime scene was not erroneous, as it would be impossible to duplicate the exact lighting conditions of the scene, that there was already ample evidence that it was "pitch black" and "difficult to see" on the night of the murder, and that a jury viewing of the scene for its poor visibility conditions was irrelevant to the issue at hand which was whether the defendant aimed at the silhouettes that he admitted seeing. 3. The court must investigate allegations of juror misconduct to determine whether to replace him or her with a substitute. The power to discharge a juror who is unable to perform his or her duties means that a court may also take less drastic steps to make sure a juror is able to perform. In this case, the trial court had intruded as minimally as possible "to satisfy its duals goals of investigating allegations of misconduct while preserving the secrecy of the deliberative process," and it did not abuse its discretion. 4. Instructing the jury pursuant to CALJIC No. 2.03 is proper "when there exists evidence that the defendant made a deliberately misleading of false statement to explain his or her conduct." (People v Page (2008) 44 Cal.4th 1). In this case, there was ample evidence that a defendant made a deliberately misleading or false statement to explain his conduct to warrant the use of the jury instruction. 5. Jury unanimity is not required "to decide the theory of murder, felony or malice … because those theories are not distinct elements of the crime but are instead merely distinct means of committing the offense." B. Penalty Retrial 1. The court cited authority in Green v Georgia (1979) 442 U.S. 95 that due process requires that highly relevant mitigating evidence may be introduced, even if it is hearsay, where "substantial reasons existed to assume its reliability". In this case,however, no indicia of reliability were present. 2. The Court found that the court did not err by excusing the seven prospective jurors based solely upon the juror's written response to a questionnaire, as their views would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." 3. Victim impact evidence is relevant and admissible so long as it is not "so unduly prejudicial" that it renders the trial "fundamentally unfair." In any case, even if any of the victim impact testimony was erroneously admitted in this case, the court stated that any such error "was harmless beyond a reasonable doubt in light of the overwhelming evidence in aggravation." 4. Refusal to provide a victim impact evidence instruction and refusal to sua sponte provide a similar instruction do not constitute an error. 5. The Court states that People v Robertson (1982) 33 Cal.3d 21 requires the prosecution to prove beyond a reasonable doubt the commission of uncharged crimes when introduced as a factor in aggravation, but a reasonable doubt instruction is not required if evidence of uncharged crimes is admitted for other purposes. In this case, evidence of the defendant's abusive behavior towards his wife was used for the circumstances of the crime and circumstances extenuating the gravity of the crime, and not as a factor in aggravation. 6. The court affirmed prior holdings that "a trial court need not instruct that the absence of prior felony convictions is necessarily mitigating", even if the defendant requests such an instruction." People v Pollock (2004) 32 Cal.4th 1153. 7. The Court cited caselaw that states there is no prejudice from an error where the prosecutor does not suggest that double counting aggravating factors is permissible and the jury receives the standard instruction concerning the weighing of aggravating and mitigating factors. 8. The Court held that a trial court did not err by instructing the jury. 9. The Court referred to settled established caselaw that rejects the argument that the court must find beyond a reasonable doubt that aggravating factors outweigh mitigating factors before imposing the death penalty: People v Martinez (2009) 47 Cal.4th 399 10. The Court has consistently held that the "so substantial" and "warranted" langauge in CALJIC No. 8.88 "is not inadequate or misleading" or "constitutionally vague": People v Arias (1996) 13 Cal.4th 92; People v Breaux (1991) 1 Cal.4th 281. 11 - 14 The Court considered and rejected the defendant's arguments about jury instructions concerning Penal Code s 190.3, intercase proportionality review, cumulative error, and alleged violation of international law. Tags Cases Cited: People v Ceja (1993) 4 Cal.4th 1134 |
