Supreme Court of California Justia
Docket No. S026040

People v. Vieira



Filed 3/7/05



IN THE SUPREME COURT OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

S026040

v.

RICHARD JOHN VIEIRA,

Stanislaus County

Super. Ct. No. 261617

Defendant and Appellant.



A jury convicted defendant Richard John Vieira of four counts of murder

(Pen. Code, § 187).1 An enhancement for personal use of a deadly weapon was

found true for each count. (§ 12022, subd. (b).) Defendant was also convicted of

one count of conspiracy to commit murder. (§ 182.) The special circumstance of

multiple murder was found true as to each count. (§ 190.2, subd. (a)(3).) At the

penalty phase, the jury fixed the penalty for count one, the murder of Richard

Ritchey, at life imprisonment without parole. For the three other murders and the

conspiracy to commit murder, the jury returned a verdict of death. The trial court

denied defendant’s motion to modify the death verdict (§ 190.4, subd. (e)) and

sentenced defendant to life imprisonment without parole on the first count and to


1

All statutory references are to the Penal Code unless otherwise indicated.

1




death on the other four counts, with a one-year enhancement for each count, with

the terms all to run consecutively.

Defendant’s appeal is automatic. (§ 1239, subd. (b).) We reverse the death

sentence as to the conspiracy to commit murder count and remand so that

defendant may be resentenced to a term of 25 years to life imprisonment. We

uphold defendant’s death sentence as to the other three counts and in all other

respects affirm the judgment.

I. FACTUAL BACKGROUND

A. Guilt Phase

At the time the murders took place in 1990, defendant lived at a location

known as “the Camp” at 4150 Finney Road in Salida in Stanislaus County. The

Camp consisted of a number of houses and trailers. Defendant lived in a trailer

with codefendant David Beck, near a house occupied by codefendant Gerald Cruz

and his wife. Codefendant Jason LaMarsh lived in another nearby trailer. Cruz

was the acknowledged leader of this informal group. Beck was generally in

charge of discipline. Everyone in the group pooled their money. Ron Willey was

also associated with the group, but did not live at the Camp during the relevant

time period. Defendant held a low status within the group. Michelle Evans,2 who

was also involved in the group and was for a time LaMarsh’s girlfriend, testified

that defendant was a “slave” to the other members of the group, and was given

such tasks as cooking, bathing Cruz’s children, and undertaking various repairs.


2

Evans, who was charged with the same first degree murder and conspiracy

to commit murder charges as defendant, entered into a plea bargain in which she
received a one-year sentence in exchange for her trial testimony.

2



According to her testimony, defendant was beaten by Beck, at Cruz’s order, for

various deficiencies in his work. He was also given the task of guarding the camp

late into the night, as well as often spending days doing construction work.

Cruz and Beck bought assault weapons and several camouflage masks and

knives. Two weeks before the murders, they purchased a police-style baton.

One of the Camp residents, Franklin Raper, a man in his 50’s, was known

to be selling drugs from his trailer. The noise and other activities attendant upon

drug sale and use, as well as hypodermic needles and other drug paraphernalia left

by Mr. Raper’s customers, became a concern to Cruz and other Camp residents.

Also of concern was Raper’s treatment of an elderly man named Jiggs. Raper

used Jiggs’s electricity to power his trailer, refused to compensate him for it, and

threatened to kill Jiggs when the latter threatened to disconnect the former’s

power. Cruz, according to Evans’s testimony, looked out for people in the Camp,

and became upset by this behavior. He and others asked Raper to leave the Camp,

but Raper initially refused.

Then began a series of confrontations between Raper and Cruz’s group.

Cruz and others pushed Raper’s car across the street and set it on fire. Raper

agreed to leave the Camp and had his trailer towed to 5223 Elm Street. But Raper

returned soon after and destroyed a newly repaired fence near Cruz’s house. Cruz

had Raper arrested and taken to jail. Two weeks before the murders, Jason

LaMarsh and others in the group got into a physical altercation with Raper at the

latter’s Elm Street residence, accusing him of stealing one of their guns, until

others broke up the fight. Later the same evening, Dennis Colwell, one of the

people present at the Elm Street residence during the fight, drove slowly by the

Camp and was pursued by Cruz and other Camp residents. They dragged Colwell

3



from the car and beat him, seeking to have him tell them what was going on at the

Elm Street residence. Defendant watched as the beating took place.

Michelle Evans’s sister, Tanya, had lived at the Elm Street residence, but

was evicted around the same time as Raper moved his trailer there. Raper lived in

the residence and allowed others to stay there as a kind of “crash pad.” The

afternoon of the murders, Cruz asked Evans to prepare a diagram of the residence.

Later that day, Cruz met with Beck, LaMarsh, Evans, Willey and defendant in

LaMarsh’s trailer. Cruz announced that the plan was to go over to the Elm Street

residence “to do ‘em and leave no witnesses.” Cruz gave each person a plan of

entry and an assignment. Evans’s task was to enter the residence as a visitor, to

account for all the people at the residence and attempt to move them into the living

room, to open up the back window and then leave and wait in the car. LaMarsh

was to enter with her. Beck was to come in through the back window. Cruz,

Willey and defendant were supposed to come through the front door after Evans

had completed her assignment. Cruz told the group that whoever “messed up” in

carrying out their assignments would “join” the victims, and he looked directly at

defendant when he made the statement.

Cruz then handed out weapons to be used. There were two baseball bats, a

Ka-bar knife and an M-9 knife. Cruz took one of the knives, along with a police

baton. Defendant was given a baseball bat and also had his own .22-caliber

handgun. Before going to the Elm Street residence, defendant and Willey were

seen swinging their bats and “dancing around” to hard rock music. Defendant and

others put on camouflage masks.

The group then proceeded to the Elm Street residence just after midnight on

May 21, 1990, driving over together in a Mercury Zephyr. Raper, Colwell, and

two others present at the house at the time, Richard Ritchey and Darlene

4



(“Emmie”) Paris, were murdered. Donna Alvarez, who had been sleeping in one

of the bedrooms when the attack began, managed to escape to a neighbor’s house.

Ritchey ran through the front door and into the street. A neighbor (Earl

Creekmore) and Evans testified that Willey and Cruz caught up to Ritchey and

beat him. Cruz then slit his throat with his knife. Raper’s and Colwell’s throats

were also slit and they had multiple wounds, including severe skull fractures

inflicted by a baseball bat or police baton. In Raper’s case, the top of the head was

caved in and there were severe lacerations to the brain.

Defendant killed Emmie Paris. The day after the murder he told Evans that

Paris began screaming and Cruz ordered him to shut her up. Defendant hit her

with a baseball bat several times but did not succeed in silencing her. Cruz then

handed him his knife and he stabbed her. When this also failed, defendant

grabbed Paris’s hair and sawed at her throat till “it felt like her head was going to

come off.” Evans testified that he laughed when he told her this. According to

Dr. Ernoehazy, who performed the autopsy for the coroner, Paris died from a

slicing wound to the throat.

Two days later, in a conversation with his girlfriend, Mary Gardner,

defendant admitted having been at the murder scene but denied killing anyone. He

blamed LaMarsh for allowing Alvarez to escape, telling her that the plan had been

to leave no witnesses. Gardner became upset because she knew three of the

people who were killed and defendant said that they deserved to die, they had been

“warned” and should not have been there.

Police investigating the crime scene found a baseball bat and Ka-bar knife

with bloodstains matching those of the victims, as well as several masks that had

been worn by the killers. Sheriff’s detective Deckard, the principal investigator,

questioned Donna Alvarez and from her description of one of the men she had

5



seen, and with a help of passersby acquainted with LaMarsh, he was able to

assemble a photographic lineup that included LaMarsh. Alvarez identified him as

having been one of the assailants. Suspicion soon focused on the Camp residents.

Evans was arrested, and in subsequent statements, implicated her codefendants.

Defendant was initially interrogated and released the day after the murders,

acknowledging that he knew the codefendants but denying he had any role in the

murders and claiming he had been at the Oakdale Motel the night the homicides

occurred. Two days later, defendant was arrested and further interrogated. He

admitted he participated in planning the murders and that he was present at the

murder scene. Initially during the interview, he stated that it had been his function

to stand guard in the hall, but later in the interview he admitted that he had struck

one of the victims in the legs several times with a baseball bat. Defendant stated

that he “completely condoned” the murders.

The defense put on no witnesses disputing the role in the murders that

Evans and others attributed to him. As will be explained below, the core of the

defense was apparently testimony regarding defendant’s cult membership and his

incapacity to form the requisite criminal intent. For reasons discussed below, the

principal defense witness, Randy Cerny, was not permitted to testify at the guilt

phase.

B. Penalty Phase

At the penalty phase, the prosecution argued solely the circumstances of the

crime and did not allege past violent criminal activity or prior felony convictions

on defendant’s part.

The defense called several childhood friends, neighbors and family

members, who portrayed defendant as a fairly quiet and nonviolent youth. His

father introduced him to smoking marijuana when defendant was eight years old.

6



Since that time, defendant became a habitual marijuana user, smoking it at least

once a week. He also had trouble in school, having a condition his mother,

Barbara Vieira, identified as “lazy eye,” which caused him to have difficulty with

reading and to be held back a year in the sixth grade. Defendant did not complete

high school. He left his regular high school after failing to make the football team,

enrolling in a continuation high school which he left after being suspended for

possessing marijuana. Soon after, he found work hanging sheetrock with his

father and later his uncle. He never learned how to drive. His mother testified that

he was a good boy and eager to do chores around the house.

Defendant’s sister, Angela Young, testified that it was she who introduced

defendant to Cruz and his circle when defendant was 15. (He was 21 at the time

of the murders.) Defendant’s sister lived for a few months in 1987 and 1988 with

Cruz and others in a house in Modesto. Cruz led others in the study of the occult

and the performance of supposedly occult rituals that included candles, robes, and

chanting. Cruz told Young that “to sacrifice your first newborn was . . . the

greatest thing you can ever do” and that it was “for the satisfaction of Satan . . . ,”

although there was no evidence any such sacrifices had occurred. Young soon

moved out of the house, but arranged for her brother, who was seeking

independence from the family, to move in.

Defendant’s sister and mother testified to changes they noticed in defendant

after he went to live with Cruz. He required permission from Cruz to visit his

family, and when he did visit, he would telephone Cruz to ask permission to stay

for dinner or to have a beer. He always looked tired, with dark circles under his

eyes, and was thin, nervous and withdrawn. He often appeared to have been

beaten up, with black eyes, fat lips, and slashes on his arms.

7



A deputy sheriff assigned to the county jail testified that defendant had no

incidents of misconduct in his approximately one year and four months of

incarceration.

Randy Cerny, a retired deputy sheriff who had become an expert on cults,

and lectured on cults for law enforcement agencies, also testified for the defense.

Based on his general study of cults, his review of a diary defendant had written in

the 18 months before the murder while living with Cruz, and his interviews with

defendant, Cerny formed the opinion that defendant was involved in a “cult style

group” with Cruz as the leader. Defendant was subject to “a process of mind

control” that included sleep deprivation, regular physical punishment, and

minimization of contact with family and others outside the group. According to

the diary, the punishment included shock treatments with an exposed electric wire,

beatings from other members of the group, and various forms of sexual

humiliation. Cerny testified that it was apparent from the diary that defendant had

internalized many of Cruz’s values: in it he expressed the desire to sacrifice

himself so that Cruz’s health would improve and expressed gratitude for Cruz

being “merciful” in not having him beaten when he made a certain mistake. Cerny

also described the cult as having occult and satanic underpinnings, with Cruz

directing the members of the group to read and study the books of the English

occultist Alistair Crowley, of whom Cruz believed himself to be the reincarnation,

and to engage in various rituals.

On cross-examination, Cerny admitted he had no way of verifying that the

events described in the diary actually occurred. He also related, at the

prosecution’s behest, portions of the diary in which defendant wrote about

administering punishment to another member of the group, entertaining obsessive

8



and sometimes violent fantasies about a woman who had rejected him, and

participating in the group’s heavy use of drugs.

II. PRETRIAL ISSUES

A. Denial of Motion to Change Venue

Defendant contends his motion to change venue, made several times during

the proceedings, was wrongly denied, which he claims was error under state law

and a violation of his right to be tried by an unbiased jury under the Sixth, Eighth

and Fourteenth Amendments to the United States Constitution. We conclude the

trial court committed no error.

1. The

Law

“ ‘A change of venue must be granted when the defendant shows a

reasonable likelihood that in the absence of such relief, a fair trial cannot be had.

[Citations.] Whether raised on petition for writ of mandate or on appeal from

judgment of conviction, the reviewing court must independently examine the

record and determine de novo whether a fair trial is or was obtainable. [Citations.]

The factors to be considered are the nature and gravity of the offense, the nature

and extent of the news coverage, the size of the community, the status of the

defendant in the community, and the popularity and prominence of the victim.’ ”

(People v. Williams (1989) 48 Cal.3d 1112, 1125 (Williams).)

As we further stated in Williams: “Of course, the question presented on

appeal from a judgment of conviction is necessarily different from that on a

petition for writ of mandate. . . . [¶] . . . [B]ecause the prejudicial effect of

publicity before jury selection is necessarily speculative, it is settled that ‘ “any

doubt as to the necessity of removal . . . should be resolved in favor of a venue

change.” ’ [Citation.] After trial, any presumption in favor of a venue change is

unnecessary, for the matter may then be analyzed in light of the voir dire of the

9



actual, available jury pool and the actual jury panel selected. The question then is

whether, in light of the failure to change venue, it is reasonably likely that the

defendant in fact received a fair trial. [Citation.] [¶] Whether raised on petition

for writ of mandate or on appeal from a judgment of conviction, however, the

standard of review is the same. A showing of actual prejudice ‘shall not be

required.’ [Citations.] In a pretrial motion for change of venue, defendant need

only demonstrate a ‘reasonable likelihood’ that absent such relief a fair trial cannot

be had. [Citation.] On appeal after judgment, the defendant must show a

reasonable likelihood that a fair trial was not had. [Citations.] In either case,

‘[t]he phrase “reasonable likelihood” denotes a lesser standard of proof than “more

probable than not. [Citations.]” ’ ” (Williams, supra, 48 Cal.3d at pp. 1125-1126.)

2. The Trial Court’s Rulings

In ruling on the defense motion for change of venue, the trial court

reviewed the pertinent factors, comparing the case to the then-recent capital case

in which this court denied a change of venue, People v. Coleman (1988) 48 Cal.3d

112, 133-136 (Coleman). As to the gravity and nature of the offense, the court

admitted this factor weighed in favor of the change of venue, given the multiple

murders and the “sensational aspects” of the case.

The trial court concluded that the second factor, the nature and extent of the

news coverage, did not weigh in favor of a change of venue. There had been a

number of “large and sometimes pictorial and descriptive articles about the

murders” between May 22 and June 1, 1990, in the Modesto Bee, the newspaper

with the largest circulation in Stanislaus County. There was intensive coverage on

local television stations during the same period of time. But that coverage was

comparable to that in Coleman, i.e., it “quickly subsided” and was not “ ‘persistent

and pervasive’ ” as in other cases in which a change of venue was warranted.

10



(Coleman, supra, 48 Cal.3d at pp. 133, 134.) The trial court found that articles

that initially reported neo-Nazi activity and drug use in connection with the case

were tempered by later comments by law enforcement officials that the killings

were not drug or race related. Moreover, media coverage mentioned defendant by

name only once or twice during the news coverage.

The trial court also examined survey data regarding how well acquainted

the people of Stanislaus County were with the crime and the defendant. Defendant

had submitted a recent telephone poll conducted by private investigator Alan

Peacock. According to that survey, 263 out of 400 respondents, approximately

two-thirds, had recalled hearing about the killings and 117, or approximately 29

percent, had formed an opinion that the persons arrested for the crimes were

guilty. The prosecution, in arguing against the change in venue motion, disputed

Peacock’s expertise in conducting the survey. The prosecution submitted its own

telephone survey, showing that 72 out of 100 respondents could recall hearing

something about the case and 21 of those had opinions as to defendant’s guilt.

The trial court observed that in Coleman, only 46 percent had heard of the case,

but 31 percent thought the defendant to be guilty, and that this substantial

percentage was not by itself grounds for changing venue.

The third factor, the size of the community also did not weigh in favor of a

change in venue. “The size of the community is important because in a small rural

community, a major crime is likely to be embedded in the public consciousness

more deeply and for a longer time than in a populous urban area.” (Coleman,

supra, 48 Cal.3d at p. 134.) In Coleman, we concluded that Sonoma County, with

a population of approximately 300,000 in 1980, “[t]hough not one of the state’s

major population centers, . . . is substantially larger than most of the counties from

which this court has ordered venue changes.” (Ibid.) The trial court in the present

11



case concluded that the size of Stanislaus County, with a population of

approximately 370,000 according to the 1990 census, also did not compel a venue

change.

The trial court also found the fourth and fifth factors  the status of the

defendant and the popularity and prominence of the victim  also did not weigh

in favor of the change of venue, as both the defendant and the victims were

unknown. Based on its assessment of all the above factors, the court concluded

that “there’s a reasonable likelihood that [defendant] will receive a fair trial in this

County” but that the court reserved final judgment until voir dire revealed the

actual state of knowledge of the prospective jury pool.

Defendant renewed the motion for a change of venue on August 22, 1991,

after a review of questionnaires completed by the prospective jurors disclosed that

approximately two-thirds of the prospective jurors had heard of the case and about

13 percent said they had formed an opinion based on what they had read. The

court denied the motion, observing that there was a sufficient number of jurors

who had not yet formed opinions.

Defendant again renewed the motion for change of venue on August 26.

The defense pointed out that Prospective Juror H., before she was dismissed, had

indicated she overheard three persons, perhaps prospective jurors, in the

courthouse discussing their belief that appellant should receive the death penalty.

Defense counsel argued that this incident underscored the “ominous atmosphere”

in which the trial would be taking place. The court affirmed its earlier holding.

Finally, defendant raised the venue issue in his motion for a new trial. Kirk

McCallister, especially appointed to represent defendant in the new trial motion,

claimed that the pretrial survey of community prejudice conducted by Alan

Peacock for previous defense counsel was flawed and that Mr. Peacock lacked

12



professional qualifications. Dr. Stephen Schoenthaler, who had prepared a

community prejudice survey for the trial of defendant’s codefendants, Cruz, Beck,

LaMarsh, and Willey (hereafter the Cruz trial), was called on to testify. The same

trial judge who presided over defendant’s trial had granted the change of venue in

the Cruz trial, which commenced after defendant’s trial. Dr. Schoenthaler’s

survey showed among other things that the percentage of people who had heard of

the case and who had formed an opinion of the defendants’ guilt  60 percent

hearing of the case and 30 percent forming an opinion  was significantly higher

in the community prejudice survey than in the pool of prospective jurors and

among the actual jurors. Defense counsel argued that it was unrealistic to

suppose that of the nine jurors in the case who had prior knowledge of the case,

none had formed an opinion.3

The trial court denied the motion. It found the greater pretrial publicity in

the Cruz trial as a result of publicity about defendant’s trial justified the change in

venue in the former trial. The court also denied the motion “based on actual juror

answers to the voir dire [and] the failure to challenge any of them for cause . . . .”

3. Contentions on Appeal

Defendant claims on appeal that the trial court erred in not initially granting

the change of venue motion and not granting a new trial based on the failure to

change venue. In making these arguments, he compares this case to Williams,

3

This argument, as formulated in the new trial motion, was flawed for a

simple reason. The people polled in the community prejudice survey were
randomly chosen whereas the seated jurors were not, and prospective jurors who
admitted forming an opinion would not likely have been seated on the jury. The
argument has some force, however, when it comes to the entire panel of
prospective jurors, in which approximately 13 percent (23 of 173) admitted to
forming an opinion, significantly less than the community at large.

13



supra, 48 Cal.3d 1112, a capital case in which we reversed the judgment due to the

court’s failure to grant the change of venue motion. Defendant makes several

arguments based on the notoriety of the case. First, that approximately 66 percent

of prospective jurors had heard of the case, as opposed to 52 percent in the

Williams case. Second, 9 of 12 seated jurors had heard of the case, as compared to

8 of 12 in Williams. (Williams, supra, 48 Cal.3d at p. 1128.) The newspaper

reports in Williams were “frequently sensational,” describing the victim’s

“ ‘bullet-riddled body’ ” several times. Coverage of the quadruple murder,

defendant argues, was also frequently sensational, or at least likely to leave an

impression on the reader, with a number of front page and lead articles. The

articles referred to the defendants as part of a Nazi or White supremacist

organization. One article in the Modesto Bee, on the front page of the “B” Metro

section, reported on the preliminary hearing six months before trial, recounting

defendant’s description to Detective Deckard of how he had “nearly cut off the

head of Emmie Paris.” The confession was later suppressed as the product of an

illegal interrogation. Press coverage of incriminating evidence later deemed

inadmissible was also found significant in Williams. (48 Cal.3d at p. 1127.)

Defendant also claims that the extent of community prejudice may be

gauged by the comments and behavior of some of the excused jurors who had

overheard or had discussed the case and been exposed to the view that defendant

was guilty. Defendant further points to the fact that he exhausted all 20 of his

peremptory challenges, whereas the failure to do so would lead to the inference

that the defense is satisfied with the jury. (See People v. Dennis (1998) 17 Cal.4th

468, 524; People v. Daniels (1991) 52 Cal.3d 815, 853-854.)

There are nonetheless significant differences between Williams and the

present case that undermine defendant’s position. Of great significance in

14



Williams was the size of Placer County, which at the time of trial had a population

of 117,000. (Williams, supra, 48 Cal.3d at p. 1126.) As noted, Stanislaus County

had at the time of trial a population over three times greater, including the city of

Modesto with 80,000. The small size of the community in Williams was reflected

in the fact that over one-third of the number of potential jurors knew people

connected to the case, including the victim, members of her family, and the district

attorney or investigators, which was not the case here. (Ibid., at p. 1130.)

Moreover, although there was a flurry of publicity around the time of the

murders, and some prejudicial articles around the time of the preliminary hearing

in defendant’s case, six months prior to trial, in Williams “the publicity did not

cease but continued at a fairly steady pace until the start of trial.” (Williams,

supra, 48 Cal.3d at pp. 1127-1128.) We also found important in Williams the

status of defendant and the victim: the victim was a White woman whose family

had “ ‘prominence in the community,’ ” whereas defendant was from Sacramento,

an outsider, and a Black man in a county with less than 1 percent Blacks, resulting

in “social, racial and sexual overtones.” (Williams, supra, 48 Cal.3d at p. 1129.)

In such circumstances, “the risk is enormously high that the verdict may be based

on a desire for revenge, or the fear of social ostracism as the cost of a mitigated

verdict.” (Id. at p. 1131.) There were no such overtones in the present case, and

although defendant characterizes the victims, especially Emmie Paris, as a

“posthumous celebrity” (Odle v. Superior Court (1982) 32 Cal.3d 932, 940), this

case does not present the situation of an outsider defendant against a victim with

15



“long and extensive ties to the community.”4 (People v. Coffman and Marlow

(2004) 34 Cal.4th 1, 46 [distinguishing Williams on similar grounds].)

In sum, our independent review of the record in light of the relevant factors

discussed above does not support defendant’s contention that the trial court abused

its discretion in denying the change of venue motion.5


4

Defendant also argues that the Schoenthaler survey placed the percentage

of the community that had prejudged the case at 46 percent, more than the 29
percent in the earlier Peacock survey that had been found to have judged the
defendants guilty, on which the trial court’s decision was partly based. The 46
percent figure, however, is misleading. That figure comprises a percentage of
eligible jurors surveyed who prejudged the case because they either (1) were
categorically against the death penalty; or (2) had formed an opinion that if
defendants were guilty, they should get the death penalty; or (3) had formed the
opinion that defendants were guilty. But the first two categories are not pertinent
to a change in venue motion. As noted, the Schoenthaler survey reported 30
percent of eligible juror respondents had prejudged defendants’ guilt, a figure
virtually equal to the finding of the Peacock survey.
5

One shortcoming in the voir dire proceeding, which was conducted

exclusively by the trial judge, appears in the record. As noted above, nine of 12
jurors indicated some familiarity with the case in their questionnaires. The
questionnaires asked what details of the case the jurors remembered but a number
of jurors did not indicate the extent to which they were familiar with the case,
stating only that they “read about it” in the newspaper. The trial court did not voir
dire the jurors on the subject of their knowledge and whether they had formed an
opinion. Although the jurors professed in their questionnaires not to have formed
an opinion, “[a] juror’s declaration of impartiality . . . is not conclusive.”
(Williams, supra, 48 Cal.3d at p. 1129.)


As we stated in People v. Jennings (1991) 53 Cal.3d 334, 360: “[W]e

examine ‘the voir dire of prospective and actual jurors to determine whether
pretrial publicity did in fact have a prejudicial effect.’ ” The lack of such voir dire
in this case is therefore troubling, particularly in light of the fact that prospective
jurors indicated in preliminary questionnaires that they had heard of the case.
Given the totality of the circumstances, however,  the sporadic nature of the
pretrial publicity, the fact that the jurors professed to form no opinion, and the


(footnote continued on next page)

16



B. Voir Dire on Multiple Murder

Prior to the commencement of voir dire, defense counsel submitted a

proposed jury questionnaire that contained the following question: “Do you feel

you would automatically vote for death instead of life imprisonment with no

parole if you found the defendant guilty of two or more murders?” The

prosecution objected that the subject areas “should be covered by the Court” in its

death qualification voir dire. Defense counsel stated that he appreciated that “the

Court would be doing the questioning in all aspects on [death qualification voir

dire], but I think the Court will need something to get started on to get an idea of

. . . what questions to ask that would intelligently bring out” prospective jurors

views on the death penalty. The question was not included in the jury

questionnaire. Moreover, the judge’s questions to prospective jurors did not ask

this or a similar question.6 Defendant claims error for refusing his request to



(footnote continued from previous page)

other factors discussed above  it does not appear the trial court’s failure to
engage in this kind of voir dire led to an erroneous denial of the voir dire request.
6

A typical death qualification voir dire asked the following five questions:
“BY THE COURT: Q. Mrs. B., do you have any feelings about the death

penalty which are so strong that you would never find a person guilty of first
degree murder?

“Q. Do you have any feelings about the death penalty which are so strong

that you would never find a special circumstance to be true?

“Q. Do you have any feelings about the death penalty which are so strong

that you would never vote to impose the death penalty where it was a possible
sentence?

“Q. Do you have any feelings about the death penalty which are so strong

that you would always impose the death penalty in any case you had the
opportunity?


(footnote continued on next page)

17



inquire into the ability of prospective jurors to vote for life imprisonment without

parole in the case of multiple murder convictions. More specifically, he contends

reversal of the penalty phase judgment is compelled by our holding in People v.

Cash (2002) 28 Cal.4th 703, 718-723 (Cash). He further claims that these errors

violated his rights to equal protection, due process, a fair jury trial and protection

against cruel and unusual punishment found in the United States and California

constitutions. (U.S. Const., 5th, 6th, 8th, & 14th Amends.; Cal. Const., art. I, §§ 7,

15, 17.) We conclude there was no error.

In

Cash the defense, anticipating that the prosecution would introduce into

aggravation the defendant’s murder of his elderly grandparents at age 17,

attempted to ask a prospective juror during voir dire whether there were “ ‘any

particular crimes’ ” which would have caused the juror “ ‘automatically to vote for

the death penalty.’ ” (Cash, supra, 28 Cal.4th at p. 719.) The trial court ruled the

question improper, and also denied a subsequent motion to ask prospective jurors

whether there were any aggravating circumstances that would cause them to

automatically vote for the death penalty. (Ibid.)

We held the trial court erred. We began our analysis with an articulation of

the basic principles of voir dire in capital cases: “Prospective jurors may be

excused for cause when their views on capital punishment would prevent or

substantially impair the performance of their duties as jurors. (Wainwright v. Witt

(1985) 469 U.S. 412, 424.) ‘The real question is “ ‘ “whether the juror’s views



(footnote continued from previous page)


“Q. Do you have any feelings about the death penalty which in your mind

would substantially interfere with your ability to act as a juror?”

18



about capital punishment would prevent or impair the juror’s ability to return a

verdict of death in the case before the juror.” ’ ” ’ [Citations.] Because the

qualification standard operates in the same manner whether a prospective juror’s

views are for or against the death penalty (Morgan v. Illinois (1992) 504 U.S. 719,

726-728), it is equally true that the ‘real question’ is whether the juror’s views

about capital punishment would prevent or impair the juror’s ability to return a

verdict of life without parole in the case before the juror.” (Cash, supra, 28

Cal.4th at pp. 719-720.)

We therefore found error in the trial court’s refusal of the defense’s

proposed voir dire: “[T]he trial court’s ruling prohibited defendant’s trial attorney

from inquiring during voir dire whether prospective jurors would automatically

vote for the death penalty if the defendant had previously committed another

murder. Because in this case defendant’s guilt of a prior murder (specifically, the

prior murders of his grandparents) was a general fact or circumstance that was

present in the case and that could cause some jurors invariably to vote for the

death penalty, regardless of the strength of the mitigating circumstances, the

defense should have been permitted to probe the prospective jurors’ attitudes as to

that fact or circumstance. In prohibiting voir dire on prior murder, a fact likely to

be of great significance to prospective jurors, the trial court erred.” (Cash, supra,

28 Cal.4th at p. 721.)

Of particular importance for the present case was Cash’s discussion of

People v. Medina (1995) 11 Cal.4th 694, 745-746. “In Medina, on which the

Attorney General particularly relies, the trial court initially declined to permit voir

dire on whether prospective jurors could vote for life imprisonment if the

defendant had committed multiple murders, but later the trial court changed its

ruling and allowed such questioning. Despite dictum expressing doubt that the

19



court’s initial ruling was incorrect, we held that the initial ruling did not prejudice

the defendant because ‘after the trial court clarified its position with respect to the

multiple murder question, defendant failed to ask to reexamine any juror on this

topic.’ (People v. Medina, supra, 11 Cal.4th at p. 746.) Here, by contrast, the trial

court never altered its erroneous ruling, and defendant had no opportunity to

reexamine any juror with respect to the prior murder question.” (Cash, supra, 28

Cal.4th at p. 722.)

As our discussion of Medina in Cash suggests, a trial court’s categorical

prohibition of an inquiry into whether a prospective juror could vote for life

without parole for a defendant convicted of multiple murder would be error.

Multiple murder falls into the category of aggravating or mitigating circumstances

“likely to be of great significance to prospective jurors.” (Cash, supra, 28 Cal.4th

at p. 721.) The Attorney General does not dispute this point.7 Rather, the

Attorney General argues that defendant was not denied the opportunity to conduct

voir dire on the subject of multiple murder. We agree.

Although the trial court did not include the sought-after question on

multiple murder in the jury questionnaire, it never suggested that defense counsel

could not raise the issue in voir dire. The trial court never ruled that the question

was inappropriate, and the prosecutor did not object to the question itself, but only

opined that the question was “probably better asked by the court.” To be sure, as

7

The Attorney General argued in the respondent’s brief, filed before we

issued our opinion in Cash, that Medina made clear the trial court is not required
to permit defense counsel inquiry into prospective jurors’ views on the death
penalty for multiple murderers. In supplemental briefing filed at our request, the
Attorney General does not dispute defendant’s contention that denying the
opportunity to voir dire the jury on this subject is contrary to our holding in Cash
and would violate a defendant’s Fourteenth Amendment right to an impartial jury.

20



discussed more fully in the next part of this opinion, the trial court conducted voir

dire by itself and for the most part did not allow counsel to directly question

prospective jurors. But the trial court made clear that it would permit on voir dire

“supplemental questions that I would ask if you ask me to ask.” Defense counsel

never suggested to the court that it voir dire on the subject of multiple murder.

The court presented the questions he planned to ask prospective jurors regarding

the death penalty and defense counsel stated that he had “no legal objections.”

Defendant contends on appeal that the trial court’s invitation to ask

supplemental questions “was clearly for the limited purpose of allowing the

attorneys to suggest clarifying questions with respect to certain individual jurors,

not an invitation for counsel to suggest additional general questions to be directed

to the full jury panel.” But the record belies that contention. The trial court

incorporated into its general voir dire, for example, a question suggested by the

prosecution informing prospective jurors that the prosecution would be calling a

witness who had entered into a plea bargain and inquiring whether they believed

plea bargaining to be improper. Whether or not the trial court would have

approved an additional general question on voir dire asking about juror’s attitudes

toward multiple murderers is unclear. What is clear is that defendant did not

request such a question. Nor does he contend the trial court had a sua sponte duty

to ask the question on voir dire merely because it was informed that defense

counsel desired such a question be included in the questionnaire.

Thus, the question is not, as defendant contends, whether his claim of Cash

error was properly preserved, but rather whether any error was committed.

Although asking the multiple-murder question in the jury questionnaire would not

have been improper, refusal to include the question was not error so long as there

was an opportunity to ask the question during voir dire. Because defendant did

21



not attempt to have the trial court conduct a multiple murder inquiry during voir

dire, and the trial court was given no opportunity to rule on the propriety of that

inquiry, we conclude defendant cannot claim error. (See Cash, supra, 28 Cal.4th

at p. 722; People v. Medina, supra, 11 Cal.4th at p. 746.)

C. Failure to Conduct Individual Death Qualification Voir Dire

Defendant claims the trial court erred in conducting group voir dire,

particularly death-qualification voir dire, thereby violating his constitutional rights

to due process, an impartial jury and to be free of cruel and unusual punishment.

(U.S. Const., 5th, 6th, 8th, & 14th Amends.; Cal. Const., art. I, §§ 7, 15, 17.). We

conclude no error was committed.

In

Hovey v. Superior Court (1980) 28 Cal.3d 1, 80, we held that “[i]n order

to minimize the potentially prejudicial effects [of open-court voir dire], this court

declares, pursuant to its supervisory authority over California criminal procedure,

that in future capital cases that portion of the voir dire of each prospective juror

which deals with issues which involve death-qualifying the jury should be done

individually and in sequestration.” (Fns. omitted.) In People v. Waidla (2000) 22

Cal.4th 690, 713-714, we recognized that our holding in Hovey had been

abrogated by Code of Civil Procedure section 223, part of Proposition 115 enacted

by the voters in 1990. That section provides in pertinent part that in criminal cases

“including death penalty cases,” “[v]oir dire of any prospective jurors shall, where

practicable, occur in the presence of the other jurors.” (Code Civ. Proc., § 223.)

Defendant argues that Code of Civil Procedure section 223 is

unconstitutional because Hovey’s requirement of individual death qualification,

which this court has not overruled, is constitutionally based. He is incorrect. “In

Hovey . . . we clearly indicated that we adopted the rule pursuant to our

supervisory authority over California criminal procedure and not under

22



constitutional compulsion, and that we did so because the prejudicial effects

associated with death-qualifying voir dire in open court had not been shown to be

actual but only potential.” (People v. Anderson (1987) 43 Cal.3d 1104, 1135.)

Further, defendant contends that Code of Civil Procedure section 223 did

not overrule Hovey because it did not refer to that case, and because its caveat that

group voir dire take place “where practicable” can be taken as a codification of

Hovey. This was essentially the argument made by the defendant in Covarrubias

v. Superior Court (1998) 60 Cal.App.4th 1168. The court in Covarrubias

examined at length the language, purpose and ballot arguments behind Proposition

115 and concluded that “section 223 was intended to overrule Hovey’s holding

that individual sequestered voir dire is required during death qualification.”

(Covarrubias, supra, 60 Cal.App.4th at p. 1178.) We endorsed Covarrubias’s

holding in People v. Waidla, supra, 22 Cal.4th at pages 713-714, and do so again

here.

Finally, defendant claims that voir dire in his case was not “practicable”

within the meaning of Code of Civil Procedure section 223. “[S]ection 223 vests

the trial court with discretion to determine the advisability or practicability of

conducting voir dire in the presence of the other jurors.” (Covarrubias v. Superior

Court, supra, 60 Cal.App.4th at p. 1184.) A trial court that altogether fails to

exercise its discretion to determine the practicability of group voir dire has not

complied with its statutory obligation. (Ibid.) Our cases have suggested that

group voir dire may be determined to be impracticable when, in a given case, it is

shown to result in actual, rather than merely potential, bias. (See People v.

Anderson, supra, 43 Cal.3d at p. 1135.)

Defendant contends there was such indication of actual bias in the group

voir dire process in the present case. In defendant’s new trial motion, and again

23



here on appeal, defendant points to the voir dire of two prospective jurors, Robert

C. and Henry E., who answered affirmatively when asked “[a]re your feelings

about the death penalty such that in every case in which you have the opportunity

to impose the death penalty you would impose it?” In both cases, the trial court

responded in ways that indicated the answers were inappropriate and not in

conformity with the law. Defendant notes prospective jurors on the same panel

whose voir dire followed Robert C. and Henry E. did not give the same

unqualified affirmative response to that question. He surmises that these

prospective jurors, including several persons who were seated as jurors on the

case, were influenced by the trial court’s responses to Robert C. and Henry E. and

gave answers that conformed to law but may have been untruthful, i.e., they

understated their pro-death-penalty bias. Defendant in the new trial motion sought

to bolster this argument with testimony from Dr. Schoenthaler concerning the

Hawthorne effect, a phenomenon observed in social science research whereby the

act of observation changes the behavior of the subjects observed, as when research

subjects change their behavior to conform to what they perceive as the

expectations of the researchers. (See Risinger et al., The Daubert/Kumho

Implications of Observer Effects in Forensic Science: Hidden Problems of

Expectation and Suggestion (2002) 90 Cal. L.Rev. 1, 20, fn. 90.)

At the threshold, the Attorney General claims that defendant did not object

below to group voir dire and the issue is waived. It appears that defense counsel

objected to the repetitive questioning of the death-qualification voir dire, because

“I think . . . it’s creating . . . an atmosphere of guilt and death.” Defense counsel

did not, however, propose individual, sequestered voir dire as a solution to this

perceived problem, but rather sought to have the trial court conduct

death-qualification voir dire only when prospective jurors’ attitudes toward the

24



death penalty, as expressed in the questionnaire, were unclear. Defendant did not

raise the issue of individual voir dire until his motion for a new trial. Defendant’s

claim is therefore not preserved on appeal.

Even if it were, it is without merit. The possibility that prospective jurors

may have been answering questions in a manner they believed the trial court

wanted to hear identifies at most potential, rather than actual, bias and is not a

basis for reversing a judgment. The trial court did not abuse its discretion in

proceeding with group voir dire.

III. GUILT PHASE ISSUES

A. Refusal of Duress Instruction

Defense counsel requested the following instruction, which the trial court

refused to give: “If the defendant agreed and participated in the plan [to commit

murder] in the honest belief that his life or physical safety was in danger if he did

not agree and participate, he would not act with malice and could not be guilty of

conspiracy to commit murder.” Defendant contended, and contends now, that the

evidence supported such an instruction and that the trial court therefore erred in

refusing to give it. We consider in turn each of the two parts of the instruction, i.e,

whether in the present case the defense of duress can negate malice and whether it

can be a defense to conspiracy to commit murder.

1. Duress and Malice

Penal Code section 26 declares duress to be a perfect defense against

criminal charges when the person charged “committed the act or made the

omission charged under threats or menaces sufficient to show that they had

reasonable cause to and did believe their lives would be endangered if they

refused.” That section also provides that this defense does not apply to crimes

“punishable with death.” We recently rejected the argument that duress could

25



negate the elements of malice or premeditation, thereby reducing a first degree

murder to manslaughter or second degree murder. (People v. Anderson (2002) 28

Cal.4th 767, 781-784.) We decline defendant’s invitation to reconsider the

holding in Anderson. Moreover, because duress cannot, as a matter of law, negate

the intent, malice or premeditation elements of a first degree murder, we further

reject defendant’s argument that duress could negate the requisite intent for one

charged with aiding and abetting a first degree murder. (See Anderson, supra, 28

Cal.4th at p. 784.)

2. Conspiracy to Commit Murder

Defendant

contends

that although duress may not be a defense to murder, it

is a defense to a conspiracy to commit murder. Even assuming he is correct, the

trial court committed no error, because the facts did not support a duress

instruction. (People v. Flannel (1979) 25 Cal.3d 668, 684-685 [trial court obliged

to instruct on a defense theory only when there is substantial evidence to support].)

“The common characteristic of all the decisions upholding [a duress

defense] lies in the immediacy and imminency of the threatened action: each

represents the situation of a present and active aggressor threatening immediate

danger; none depict a phantasmagoria of future harm.” (People v. Otis (1959) 174

Cal.App.2d 119, 125; see also People v. Bacigalupo (1991) 1 Cal.4th 103, 125.)

In arguing that the evidence supports a duress instruction, defendant points to

testimony of Michelle Evans that Cruz had told defendant and the others in the

group, in their meeting just before they went off to commit the murders, that if any

one of them “messed up” during the attack on Raper, that person would “join” the

intended murder victims. Evans testified that Cruz looked directly at defendant

when he made that threat. Evans also testified, as recounted above, that Cruz had

ordered defendant beaten and tortured on several occasions.

26



We disagree that substantial evidence supports a duress instruction in the

present case. Rather, the evidence points strongly to the fact that defendant’s

participation in the murders was not principally motivated by a fear for his life, but

rather stemmed from his belief in Cruz as a figure of authority. Defendant’s

behavior immediately after the murder plan had been formulated (swinging a bat

and dancing around to rock music), his energetic participation in carrying out the

murder plan, and his subsequent statements to Detective Deckard and Mary

Gardner that he condoned the murders and that the victims deserved to die, are not

consistent with a defense that he was compelled to commit the murders by an

immediate and imminent threat to his life. Nor did defendant hint in his

conversations with Deckard, Gardner or Evans in the immediate aftermath of the

murders that fear for his life was a primary motive. While the fact that defendant

was dominated by Cruz is, as discussed below, a factor the jury could consider at

the penalty phase of the trial, it did not constitute duress within the meaning of

section 26. The defense of duress was therefore not available to defendant as to

any crime.8

Defendant also claims that a sentence of death for someone who committed

a murder under duress would constitute cruel and unusual punishment in violation

of the United States and California Constitutions (U.S. Const., 8th Amend. 8; Cal.

Const., art. I, § 17) because such an outcome would impose a “penalty ‘. . . so

disproportionate to the crime for which it is inflicted that it shocks the conscience


8

Trial counsel himself came to recognize the inappropriateness of a duress

defense at the guilt phase. When discussing the modification of the duress
instruction, he stated: “I tend to agree that the state of the evidence that [the
prosecutor] alluded to earlier would not permit a logical argument to the jury that
[defendant] was in imminent fear of his life in the first place.”

27



and offends fundamental notions of human dignity.’ ” (People v. Frierson (1979)

25 Cal.3d 142, 183.) We need not decide whether an individual who kills because

he faces the imminent choice between taking a life or likely forfeiting his own can

be constitutionally sentenced to death. As explained immediately above, that is

not this case.

B. Exclusion of Cult Expert Testimony

Defendant contends the trial court erred in refusing to admit at the guilt

phase the testimony of Randy Cerny. Cerny was a former Stanislaus County

Sheriff’s detective who specialized in the study of cults. Defense counsel offered

Cerny’s testimony to establish that defendant, under the mind control techniques

of Cruz, was unable to form the mental state required for first degree murder. The

trial court excluded Cerny’s testimony because he was not a qualified expert on

whether defendant had a “mental defect, mental disorder, or mental disease” at the

time he committed the murders. Defendant claims the trial court erred, and that

the error deprived them of his rights to due process and compulsory process under

the Fifth, Sixth, and Fourteenth amendments to the United States Constitution.

We conclude there was no error.

A trial court’s decision to admit or exclude evidence is reviewable for

abuse of discretion. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.) No such

abuse occurred here. “Expert opinion on whether a defendant had the capacity to

form a mental state that is an element of a charged offense or actually did form

such intent is not admissible at the guilt phase of a trial. [Citation.] Sections 28[9]

9

Section 28 states: “(a) Evidence of mental disease, mental defect, or mental

disorder shall not be admitted to show or negate the capacity to form any mental
state, including, but not limited to, purpose, intent, knowledge, premeditation,
deliberation, or malice aforethought, with which the accused committed the act.


(footnote continued on next page)

28



and 29[10] permit introduction of evidence of mental illness when relevant to

whether a defendant actually formed a mental state that is an element of a charged

offense, but do not permit an expert to offer an opinion on whether a defendant

had the mental capacity to form a specific mental state or whether the defendant

actually harbored such a mental state.” (People v. Coddington (2000) 23 Cal.4th

529, 582, overruled on another point by Price v. Superior Court (2001) 25 Cal.4th

1046, 1069, fn. 13.) Here, the trial court concluded that Cerny, who was not a

psychologist or a psychiatrist, was not qualified to render an opinion as to whether

defendant suffered from a mental illness at the time he committed the murders that

would raise a doubt about whether defendant had the mental state requisite for

first-degree murder; nor was Cerny qualified to testify generally about the



(footnote continued from previous page)

Evidence of mental disease, mental defect, or mental disorder is admissible solely
on the issue of whether or not the accused actually formed a required specific
intent, premeditated, deliberated, or harbored malice aforethought, when a specific
intent crime is charged. [¶] (b) As a matter of public policy there shall be no
defense of diminished capacity, diminished responsibility, or irresistible impulse
in a criminal action or juvenile adjudication hearing. [¶] (c) This section shall not
be applicable to an insanity hearing pursuant to Section 1026. [¶] (d) Nothing in
this section shall limit a court’s discretion, pursuant to the Evidence Code, to
exclude psychiatric or psychological evidence on whether the accused had a
mental disease, mental defect, or mental disorder at the time of the alleged
offense.”
10

Section 29 states: “In the guilt phase of a criminal action, any expert

testifying about a defendant’s mental illness, mental disorder, or mental defect
shall not testify as to whether the defendant had or did not have the required
mental states, which include, but are not limited to, purpose, intent, knowledge, or
malice aforethought, for the crimes charged. The question as to whether the
defendant had or did not have the required mental states shall be decided by the
trier of fact.”

29



relationship between mental illness and certain types of behavior. (See id. at pp.

582-583.) We conclude the trial court did not abuse its discretion in determining

that Cerny’s testimony was not relevant to any guilt phase issue and should be

excluded.

C. Admission of Photographs

Before trial, defense counsel moved in limine to exclude “the gruesome

photographs of the injuries to Darlene Paris.” Counsel argued the photographs

should be excluded under Evidence Code section 352, because their prejudicial

effect was considerable and their probative value slight, and because there was “no

issue of the cause of the death of any of the victims or the location or extent of

their wounds.” The trial court did exclude some of the challenged photographs,

but allowed the admission of two that defendant now claims were admitted in

error. The first, People’s exhibit No. 46 showed a picture of Raper’s skull, which,

as the prosecutor described it, looked “much like . . . a hard-boiled egg shown

after it cracked.” The second, People’s exhibit No. 57, showed a view of Paris’s

slashed throat. Defendant now contends this was error, under Evidence Code

section 352 and the Fifth, Sixth, Eighth and Fourteenth Amendments to the United

States Constitution.

The Attorney General argues that exhibit No. 57, by showing the extent of

the wounds inflicted on Paris, and her near decapitation, graphically undermined

defendant’s defense that he did not intend any killing and did not act with malice

or premeditation. We agree the trial court did not abuse its discretion in admitting

that photograph and committed neither statutory nor constitutional error.

As for exhibit No. 46, defendant did not object to admission of the

photograph, and his claim of error is therefore forfeited. Even if an objection had

been made, no reversal is warranted. The rules governing the admissibility of

30



photographic evidence are settled: all relevant evidence is admissible, unless

excluded under the federal or state Constitution or by statute, and trial courts have

broad discretion in determining the relevance of evidence but lack discretion to

admit irrelevant evidence. (People v. Scheid (1997) 16 Cal.4th 1, 13-14, and cases

cited therein.) Photographs of a murder victim “are always relevant to prove how

the charged crime occurred, and the prosecution is ‘not obliged to prove these

details solely from the testimony of live witnesses,’ ” even in the absence of a

defense challenge to particular aspects of the prosecution’s case. (People v.

Pollock (2004) 32 Cal.4th 1153, 1170; see People v. Scheid, supra, 16 Cal.4th at

p. 15.) We are not prepared to say, after examining the subject photograph of

Raper’s skull, that the trial court abused its broad discretion in implicitly

concluding its probative value outweighed its prejudicial effect. Even were we to

assume the contrary, we would find admission of the photograph harmless given

the strength of the evidence of defendant’s participation in the four murders. (See

People v. Weaver (2001) 26 Cal.4th 876, 933-934.)

D. Cumulative Error

Because we find no valid claim of error on appeal, we reject defendant’s

contention that his guilt phase judgment must be reversed for cumulative error.

IV. SPECIAL CIRCUMSTANCES/DEATH ELIGIBILITY ISSUES

A. Multiple-murder Special Circumstance

Defendant

claims

that

the multiple-murder special circumstance violates his

Eighth Amendment rights because it fails to adequately narrow the class of

murderers who are eligible for the death penalty. We have rejected this argument.

(People v. Coddington, supra, 23 Cal.4th at p. 656; see also Lowenfield v. Phelps

(1988) 484 U.S. 231, 246.) Defendant advances no persuasive reason to

reconsider our position.

31



B. Conspiracy to Commit Murder Alone Cannot Make Defendant

Death Eligible

Defendant contends the trial court erred in imposing a separate death

sentence upon him for conspiracy to commit murder. As the Attorney General

concedes, defendant is correct, and we have held that conspiracy to commit

murder is not a death-eligible crime. (People v. Lawley (2002) 27 Cal.4th 102,

171-172.) As in Lawley, “[u]nder our statutory power to modify an unauthorized

sentence (see § 1260), we shall direct the trial court to issue an amended abstract

of judgment reflecting the appropriate sentence for conspiracy to commit murder,

which the Attorney General in this case agrees is imprisonment for 25 years to life

. . . .” (Id. at pp. 171-172, fn. omitted.)

V. THE PENALTY PHASE

A. Sustaining Objection to Defendant’s Mother’s Remark

At the penalty phase, the defense called defendant’s mother, Barbara

Vieira, to testify on his behalf. Toward the end of defense counsel’s direct

examination, he asked her: “What would [your son’s] death do to you?” She

replied: “His death would destroy me.” The prosecution moved to strike her

remark and the trial court sustained the motion. Defendant now claims the trial

court in so doing committed prejudicial error and violated defendant’s Eighth

Amendment right to present mitigating evidence.

A statement about how a defendant’s death would make the family member

suffer is not relevant to an individualized determination of defendant’s culpability

and may be properly excluded. (People v. Sanders (1995) 11 Cal.4th 475, 546.)

As we stated in Sanders: “The specific questions whether family members would

prefer that defendant not be executed or believe that a death sentence will

stigmatize them are not, however, strictly relevant to the defendant’s character,

record or individual personality.” (Ibid.) As we further clarified in People v.

32



Ochoa (1998) 19 Cal.4th 353, 456: “A defendant may offer evidence that he or

she is loved by family members or others, and that these individuals want him or

her to live. But this evidence is relevant because it constitutes indirect evidence of

the defendant’s character. The jury must decide whether the defendant deserves to

die, not whether the defendant’s family deserves to suffer the pain of having a

family member executed.”

In the present case, Barbara Vieira’s statement went beyond the expression

of her desire that defendant be spared the death penalty, which would have been

permissible character evidence, and spoke directly of the impact the execution

would have on her. Although the question is close, we conclude the trial court did

not abuse its discretion in striking her testimony. Moreover, even if it was error,

the error was harmless. It is evident that Barbara Vieira communicated to the jury,

by the whole of her testimony, that she loved and valued her son and that his

crimes were the result of his association with Cruz and his followers. Her

statement that his death would destroy her would not have significantly added to

the jury’s picture of defendant’s character. (See People v. Heishman (1988) 45

Cal.3d 147, 194.)

B. Prosecutorial Misconduct During Penalty Phase Closing Argument

Defendant claims three instances of prosecutorial misconduct during the

penalty phase, each of which he claims violated his Eighth Amendment right to a

fair determination at the penalty phase. These instances will be considered in turn.

1. Commenting on Defendant’s Lack of Remorse

During closing argument, the prosecutor commented briefly on defendant’s

lack of remorse. Defendant contends that such comment allowed the prosecutor to

argue a nonstatutory aggravating factor, lack of remorse, in contravention of the

death penalty statute. (See People v. Boyd (1985) 38 Cal.3d 762, 772-776.) We

33



have held that such comment is not misconduct when the prosecution calls

attention to the jury that the mitigating factor of remorse is not present, so long as

the prosecution does not comment on defendant’s failure to testify at the penalty

phase. (People v. Crittenden (1994) 9 Cal.4th 83, 147-148.) In the present case,

the prosecutor did not suggest lack of remorse could be used as an aggravating

factor and did not comment on defendant’s silence at the penalty phase. Nor could

the prosecutor’s argument be properly characterized as committing Davenport

error, i.e., arguing lack of mitigation as an aggravating factor (People v.

Davenport (1985) 41 Cal.3d 247, 288-290); see Crittenden, supra, 9 Cal.4th at pp.

148-149.) We therefore conclude the prosecutor did not commit misconduct in

this instance.

2. Statement Regarding Mercy for Defendant

The prosecutor told the jury that under section 190.3, factor (k), the jury

could consider sympathy and mercy for defendant in determining the appropriate

penalty. The prosecutor then added: “I’d be happy if you show [defendant] that

exact same mercy and sympathy that he showed those people on Elm Street that

night. It’s absolutely none.” Defendant contends this was misconduct. But as we

have held, it is proper for the prosecutor to argue, based on the evidence, that a

capital defendant did not deserve sympathy. (People v. Ochoa, supra, 19 Cal.4th

at pp. 464-465.) The prosecutor did no more than this.

3. Prosecutor’s Statements Regarding the Bible and Philosophical

Writings

Defendant contends that the prosecutor committed misconduct by referring

to the Bible and religion in order to persuade the jury to sentence defendant to

death. In particular, defendant points to the following, delivered somewhere in the

middle of the prosecutor’s argument:

34



“Something I want to touch on. And I want to tell you this is not an

aggravating factor. I only bring up the subject in the event any of you have any

reservations about it, then hopefully I can . . . help with that.

“That’s the subject of religion. This is not aggravating at all. People from

time to time have a problem because they say, ‘Gee, in the Bible it says “Thou

shall not kill,” and “Vengeance is mine sayeth the Lord. I will repay.” ’ That’s

found in Romans. But in the very next passage . . . , it goes on and calls for capital

punishment and says, ‘[t]he ruler bears not the sword in vain for he is the minister

of God, a revenger to execute wrath upon him that doeth evil.’ He’s talking about

the ruler, the government, whatever.

“Now, the Judeo-Christian ethic comes from the Old Testament I believe

the first five books  called the Torah in the Jewish religion. And there are two

very important concepts that are found there. And that’s, one, capital punishment

for murder is necessary in order to preserve the sanctity of human life, and, two,

only the severest penalty of death can underscore the severity of taking life.

“The really interesting passage is in Exodus, chapter 21, verses 12 to 14:

‘Whoever strikes another man and kills him shall be put to death. But if he did not

act with intent but they met by act of God, the slayer may flee to a place which I

will appoint for you.’ Kind of like life without possibility of parole, haven,

sanctuary. ‘But if a man has the presumption to kill another by treachery, you

shall take him even from my altar to be put to death’ There is no sanctuary for the

intentional killer, according to the Bible.

“Now, I’ll leave it at that. That was just in the event any of you have any

reservations about religion in this case.”

We recently considered a very similar prosecutorial argument in People v.

Slaughter (2002) 27 Cal.4th 1187, 1208-1209. We held this line of argument to be

35



improper (id. at p. 1209), but nonetheless upheld the defendant’s death sentence

for several reasons. First, we noted that the defendant had forfeited the issue by

failing to object at trial. (Ibid.) Second, we held that such forfeiture did not

necessarily constitute ineffective assistance of counsel, reaffirming that “ ‘ “the

choice of when to object is inherently a matter of trial tactics not ordinarily

reviewable on appeal.” ’ ” (Id. at p. 1210.)

Third, we held the prosecutor’s misconduct to be nonprejudicial. After

reviewing our case law on this issue, we stated: “Biblical references that rival in

length those in the present case were found harmless in People v. Wash [(1993)] 6

Cal.4th 215, 261, because after making the biblical references, ‘the prosecutor

embarked upon a lengthy and detailed argument devoted exclusively to the

evidence in aggravation . . . . He did not return to the subject of God or religion,

but instead urged a sentence of death based upon defendant’s moral culpability for

the crimes in light of the statutory factors. Thus, we do not believe the

objectionable remarks could reasonably have diminished the jury’s sense of

responsibility, or displaced the court’s instructions. [Citation.] There is no

possibility that the jury would have reached a more favorable verdict had the

misconduct not occurred. [Citation.]’ [¶] The same is true in the present case.

The prosecutor’s biblical references during his penalty phase argument were

improper but harmless.” (People v. Slaughter, supra, 27 Cal.4th at p. 1211.)

The same can be said in the present case. Defense counsel did not object to

the prosecution’s biblical argument, and we cannot say from an examination of the

appellate record that the lack of objection constitutes ineffective assistance of

counsel. Moreover, the biblical argument quoted above was only a small part of a

prosecutorial argument that primarily focused on explaining to the jury why it

36



should conclude that the statutory aggravating factors outweighed the mitigating

factors. We therefore conclude that the misconduct was not prejudicial.11

Defendant

also

claims

prosecutorial misconduct in the prosecutor’s

quotation of Lord Denning,12 which he identified to the jury as a judge “in the old

Court of Appeal in England.” That quotation, as stated by the prosecutor, was as

follows: “Punishment is the way in which society expresses its denunciation of

wrongdoing. In order to maintain respect for the law, it is essential that the

punishment inflicted for grave crimes should adequately reflect the revulsion felt

by the great majority of citizens for them. It is a mistake to consider the objects of

punishment as being deterrent or reformative or preventive and nothing else . . . .

The truth is that some crimes are so outrageous that society insists on adequate

punishment because the wrongdoer deserves it, irrespective of whether it is a

deterrent or not.”

There was no misconduct. The prosecutor in this case merely asked the

jury to make the individualized determination that this defendant deserved death

for these crimes because they were particularly outrageous, regardless of whether

11

We note that our statements clearly condemning prosecutorial reliance on

biblical authority in penalty phase closing argument were made in a series of cases
filed in late 1992 and 1993. (See People v. Wash, supra, 6 Cal.4th at pp. 260-
261; People v. Sandoval (1992) 4 Cal.4th 155, 193-194; People v. Wrest (1992) 3
Cal.4th 1088, 1107.) The prosecutor’s 1991 closing argument predated these
decisions. We do not decide whether prosecutorial biblical argument that
postdates and deliberately contravenes the holdings in those decisions constitutes a
more serious form of prosecutorial misconduct warranting reversal of the penalty
phase judgment.
12

In the transcript and in the briefs, the name is spelled Lord “Dinning,” but

apparently refers to Lord Alfred Thompson Denning, who served on the English
Court of Appeal, between 1944 and 1982, 20 years as Master of the Rolls. (Lord
Denning
, The Times of London (March 6, 1999) p. A-21.)

37



or not his execution would deter other crimes. There was no likelihood the

argument would have obscured the jury’s proper understanding of its role at the

penalty phase.

C. Alleged Instructional Error

Defendant alleges various types of instructional error which he claims

violates his right to a fair penalty determination under the Eighth and Fourteenth

Amendments to the United States Constitution. We find no merit in these claims.

Defendant claims various defects in CALJIC No. 8.85, which explains the

various aggravating and mitigating factors the jury must weigh, as set forth in

section 190.3. First, defendant contends that the trial court should have omitted

those mitigating factors for which there was no evidence, because including those

factors gave the prosecutor the opportunity to point to the lack of mitigating

evidence. At the very least, defendant contends, the trial court should have

instructed the jury, according to requested instruction No. 1, that absence of a

mitigating factor could not be considered an aggravating factor. But as we have

held, “a reasonable juror could not have believed . . . that the absence of mitigation

amounted to the presence of aggravation.” (People v. Benson (1990) 52 Cal.3d

754, 802.) And, contrary to defendant’s contention, nothing in the prosecution’s

argument noting the absence of various mitigating factors would have misled the

jury to consider them as aggravating factors. Nor need the instruction have

labeled which factors were mitigating and aggravating. (Id. at p. 801.) Nor was

the failure to delete inapplicable mitigating factors from the instruction

constitutional error. (People v. Osband (1996) 13 Cal.4th 622, 704.) Nor is

section 190.3, factor (a), asking the jury to consider “the circumstances of the

crime of which the defendant was convicted in the present proceeding,”

unconstitutionally vague. (People v. Sanders, supra, 11 Cal.4th at pp. 563-564.)

38



Defendant

contends

the

jury should have been instructed according to

requested instruction No. 2, which would have specified 16 types of penalty phase

evidence that could be considered in mitigation under section 190.3, factor (k),

permitting the jury to consider “any other circumstance which extenuates the

gravity of the crime.” For example, the requested instruction would have made

clear that the jury could consider “whether the defendant was solicited by others to

participate in the crimes” and “whether the defendant occupied a position of

leadership or dominance of the other participants in the crimes.” As we have

made clear, factor (k) is adequate for informing the jury that it may take account of

any extenuating circumstance, and there is no need to further instruct the jury on

specific mitigating circumstances. (See People v. Hines (1997) 15 Cal.4th 997,

1068 [rejecting the need for a “lingering doubt” instruction in addition to factor

(k)].) It is generally the task of defense counsel in its closing argument, rather

than the trial court in its instructions, to make clear to the jury which penalty phase

evidence or circumstances should be considered extenuating under factor (k).

Defendant claims error in the trial court’s failure to instruct according to

requested instruction No. 3, that the jury may consider that accomplice Michelle

Evans was permitted to plead guilty to a lesser offense although equally culpable.

The trial court refused to deliver the instruction and directed defense counsel not

to argue that point to the jury. The trial court did not err. “The sentence received

by an accomplice is not constitutionally or statutorily relevant as a factor in

mitigation. Such information does not bear on the circumstances of the capital

crime or on the defendant’s own character and record.” (People v. Bemore (2000)

22 Cal.4th 809, 857.)

Defendant also claims a defect in CALJIC No. 8.88. The jury was

instructed per that instruction that “[i]n weighing the various circumstances you

39



simply 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 evidence is so substantial in

comparison with the mitigating circumstances that it warrants death instead of life

without parole.” (Italics added.)

Defendant argues that the instruction’s language referring to the “totality”

of the aggravating and mitigating circumstances erroneously implied that a single

mitigating circumstance could not outweigh all aggravating circumstances and

hence could not serve as a basis for the more lenient sentence. We have rejected

that argument: “Certainly, [a reasonable] juror would not have interpreted . . .

language referring to the ‘totality’ of the aggravating and mitigating circumstances

in a ‘death oriented’ fashion to ‘relate[]’ solely to the ‘quantity . . . of the factors’

and not to their ‘quality,’ or to entail ‘ “a mere mechanical counting of factors on

each side of the imaginary scale . . . .” ’ . . . There is no reasonable likelihood that

the jury misconstrued or misapplied the challenged instruction in violation of the

Eighth or Fourteenth Amendment to the United States Constitution or any other

legal provision or principle.” (People v. Berryman (1993) 6 Cal.4th 1048, 1099-

1100, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn.

1.)

Defendant argues that the trial court’s failure to instruct the jury at the

penalty phase on a reasonable doubt standard, or indeed any standard of proof, for

finding that the aggravating evidence is true, or outweighs the mitigating evidence,

violated defendant’s Fifth, Eighth and Fourteenth Amendment rights. Not so.

“The federal Constitution does not require the jury to find beyond a reasonable

doubt that the prosecution proved each aggravating factor, that the circumstances

40



in aggravation outweigh those in mitigation, or that death is the appropriate

penalty.” (People v. Hawthorne (1992) 4 Cal.4th 43, 79.) “ ‘Unlike the guilt

determination, “the sentencing function is inherently moral and normative, not

factual” [citation] and, hence, not susceptible to a burden-of-proof

quantification.’ ” (People v. Box (2000) 23 Cal.4th 1153, 1216.)

Defendant contends that the jury should have been instructed that the

prosecution has the burden of persuasion to convince the jury that death was the

appropriate penalty. We have routinely rejected this argument. “[T]he

prosecution has no burden of proof that death is the appropriate penalty, or that

one or more aggravating factors or crimes exist, in order to obtain a judgment of

death.” (People v. Anderson (2001) 25 Cal.4th 543, 589.) Nor, contrary to

defendant’s argument, should the jury have been instructed on a presumption of a

life without parole sentence. “[N]either death nor life is presumptively appropriate

or inappropriate under any set of circumstances, but in all cases the determination

of the appropriate penalty remains a question for each individual juror.” (People

v. Samayoa (1997) 15 Cal.4th 795, 853.)

D. Trial Court’s Refusal to Modify Death Sentence

The trial court refused defendant’s motion to modify the jury verdict of

death pursuant to section 190.4, subdivision (e). Defendant contends the trial

court erred. We disagree.

Defendant focuses on a statement made by the trial court in the course of

explaining its refusal to modify the motion. The court stated: “The function of the

court in this motion is to review the evidence, consider and to take into account

and be guided by the aggravating and mitigating circumstances, and then make a

determination as to whether the jury’s finding and verdicts were or were not

contrary to law.” Defendant contends that the italicized portion of this statement

41



represents a misunderstanding on the trial court’s part of its proper function, and

that this misunderstanding undermines the validity of its ruling on the motion to

modify the verdict.

As we have stated: “ ‘In ruling on a verdict-modification application, the

trial judge is required by section 190.4 [subdivision] (e) to “make an independent

determination whether imposition of the death penalty upon the defendant is

proper in light of the relevant evidence and the applicable law.” [Citations.] That

is to say, he must determine whether the jury’s decision that death is appropriate

under all the circumstances is adequately supported. [Citation.] And he must

make that determination independently, i.e., in accordance with the weight he

himself believes the evidence deserves. [Citation.]’ ” (People v. Marshall (1990)

50 Cal.3d 907, 942.)

Although the italicized portion of the trial court’s statement quoted above

may leave some doubt about whether the trial court understood that it was to

independently review the jury verdict under section 190.4, subdivision (e), its very

next statement removes that doubt. The court stated: “Naturally, the court did

reweigh the evidence in making those determinations.” A review of the remainder

of the court’s statement of reasons for denying defendant’s motion, in which it

explained its independent assessment of each aggravating and mitigating factor

and the relative weight given to each, makes clear the trial court understood its

proper role and acted accordingly.

Defendant also contends trial court error can be found in the court’s

statement that a “strong argument could be made” that the death sentence would

not have been justified if Raper had been the sole victim, in light of defendant’s

lack of a criminal record and violent past, as well as his subservient status in

Cruz’s cult. Defendant argues that the murder of Raper alone would not have

42



made defendant death eligible, and that the trial court’s statement that it might

modify the death sentence only under a circumstance that would have made

defendant ineligible for the death penalty shows that the court “effectively

abrogated” its function under section 190.4, subdivision (e).

Defendant distorts the meaning of the trial court’s statements. The trial

court used the example of the sole murder of Raper as a means of explaining the

weight it gave the mitigating evidence. While the court concluded the mitigating

evidence was not inconsiderable, and could have led to a reversal of the death

sentence had a less aggravated crime been committed, the mitigating evidence did

not in the trial court’s judgment outweigh the four planned, gruesome murders in

which defendant participated as perpetrator and accomplice. The trial court did

not suggest, as defendant implies, that it would automatically affirm the verdict

because defendant was guilty of multiple murder. Taken in its proper context, we

find no error in the trial court’s statements.

E. Constitutional Challenges to the Death Penalty Law

Defendant

makes

various constitutional challenges to the state’s death

penalty law, contending that the law prevented him from obtaining a fair penalty

determination required by the Eighth and Fourteenth Amendments to the United

States Constitution. We conclude these challenges have no validity.

Defendant contends that the jury should have been required to make

explicit findings regarding the factors that it found in aggravation and mitigation.

We have rejected that claim. (People v. Kipp (1998) 18 Cal.4th 349, 381.)



Defendant contends that his death sentence is unconstitutionally arbitrary,

discriminatory and disproportionate. Specifically, defendant requests that his

sentence be reversed pursuant to intercase proportionality review, due to his lack

of prior convictions, his youth, and his contention that he acted out of fear for his

43



own life. Additionally, defendant requests an intracase proportionality review,

claiming that some of his codefendants who received less severe sentences were

more culpable than he was. It is well settled that neither are required. (People v.

Anderson, supra, 25 Cal.4th at p. 602.) For that reason, we reject also defendant’s

related claim that comparative appellate review is constitutionally compelled.

Defendant

contends

that the California death penalty statute violates due

process of law for failing to sufficiently channel or limit the sentencer’s discretion

to prevent wholly arbitrary and capricious death sentences because the jury is

neither told which factors are aggravating and mitigating, nor is given any

direction as to how to assign weight to those factors. Defendant is incorrect. “We

have rejected the contention that the sentencing factors [in section 190.3] are

unconstitutional because they do not specify which factors are aggravating and

which are mitigating. [Citations].” (People v. Cunningham (2001) 25 Cal.4th

926, 1041.) In addition, as the United States Supreme Court has held, a capital

sentencer need not be instructed how to weigh the sentencing factors and may be

given “unbridled discretion in determining whether the death penalty should be

imposed after it has found that the defendant is a member of the class made

eligible for that penalty.” (Tuilaepa v. California (1994) 512 U.S. 967, 979-

980.)13

Defendant

contends

that

the California death penalty statute fails to narrow

the class of offenders eligible for the death penalty and thus violates the Eighth

Amendment, and article I, section 17 of the California Constitution. In support of


13

We have also rejected the argument found in defendant’s reply brief that

Ring v. Arizona (2002) 536 U.S. 584, requires us to reassess the constitutionality
of the death penalty statute. (People v. Valdez (2004) 32 Cal.4th 73, 139.)

44



this contention, defendant offers a statistical analysis based on an examination of

published appeals of murder convictions for the years 1988 to 1992, claiming the

statistics show that the California statute fails to narrow the class of death-eligible

defendants, particularly because of the broad sweep of the lying-in-wait special

circumstance and the various felony murder special circumstances. We come to

the same conclusion as we did in People v. Frye (1998) 18 Cal.4th 894, 1029, that

California’s “special circumstances ‘are not overinclusive by their number or

terms.’. . . Defendant’s statistics do not persuade us to reconsider the validity of

these decisions.”

Defendant contends that the California death penalty scheme is

unconstitutional because it allows individual district attorneys unbridled discretion

as to which cases will be prosecuted as death penalty cases. This argument is

without merit. As we stated in People v. Lucas (1995) 12 Cal. 4th 415, 477:

“Prosecutors have broad discretion to decide whom to charge, and for what

crime. . . . Absent proof of invidious or vindictive prosecution, as a general matter

a defendant who has been duly convicted of a capital crime under a constitutional

death penalty statute may not be heard to complain on appeal of the prosecutor’s

exercise of discretion in charging him with special circumstances and seeking the

death penalty.” Because defendant has not raised a claim of invidious

discrimination or vindictive prosecution, his argument fails.

Defendant

contends

that section 190.3, factor (d), is constitutionally

defective because it directs the jury to consider only “extreme mental or emotional

disturbance” (italics added) and therefore, contrary to the Eighth Amendment,

does not permit the jury to consider all available mitigating evidence. Defendant

finds the same defect in factor (g), which directs the jury to consider “whether or

not defendant acted under extreme duress or under the substantial domination of

45



another person.” (Italics added.) But as we have held, these qualifying adjectives

in factors (d) and (g) do not, when read in conjunction with the catchall provisions

of factor (k), preclude the jury from considering less extreme forms of duress,

emotional disturbance, or domination. (See People v. Turner (1994) 8 Cal.4th

137, 208-209.)

Defendant

contends

that the methods of execution employed in California

violate the Eighth and Fourteenth Amendment and requests that his death sentence

be vacated. But the constitutionality of those methods bear “ ‘ “solely on the

legality of the execution of the sentence and not on the validity of the sentence

itself.” ’ ” (People v. Samayoa, supra, 15 Cal.4th at p. 864.)

F. Violations of International Law

Defendant

contends

that

various errors made at trial and various aspects of

the trial violate international law. As we have explained, the international treaties

and resolutions to which he points have not “been held effective as domestic law”

(People v. Ghent (1987) 43 Cal.3d 739, 779); see also People v. Hillhouse (2002)

27 Cal.4th 469, 511), and are therefore not a basis for reversing the judgment.

G. Cumulative Error

Defendant

contends

the

various penalty phase errors are, taken together,

prejudicial and require reversal of the death sentence. Because we identified only

one harmless error at the penalty phase — the prosecution’s biblical references —

the claim of cumulative error is without merit.

VI. RESTITUTION FINE

Defendant contends that the trial court erred in imposing a $5,000

restitution fine at the time of sentence pursuant to former section 1202.4 and

former Government Code section 13967, subdivision (a). Defendant points to an

amendment to the latter statute, effective September 14, 1992 (see People v.

46



Saelee (1995) 35 Cal.App.4th 27, 30), which added language that the imposition

of the restitution fine is “subject to the defendant’s ability to pay.”14 He contends

that he has no ability to pay the $5,000 fine and the fine should be reduced to the

statutory minimum.

Defendant’s sentence was pronounced on March 30, 1992, several months

before the amendment discussed above was enacted. Although statutes decreasing

punishment for criminal offenses may be applied retroactively, they generally

apply only to cases in which the law has changed between the time the crime has

been committed and the time the judgment becomes final. (See, e.g., In re

Estrada (1965) 63 Cal.2d 740,742; People v. Saelee, supra, 35 Cal.App.4th at p.

30.) When the Legislature intends a change in the sentencing law to apply to

sentences that have already become final, it generally states that intention

explicitly. (See, e.g., Holder v. Superior Court (1969) 269 Cal.App.2d 314, 318.)

Defendant does not contend any such intention can be discerned in the 1992

amendment to Government Code section 13967, subdivision (a). We conclude

defendant cannot benefit from that amendment and there is therefore no basis for

overturning or modifying the restitution fine.


14

Former Government Code section 13967, subdivision (a) provided in

pertinent part at the time defendant was sentenced that “[I]f the person is
convicted of one or more felony offenses, the court shall impose a separate and
additional restitution fine of not less than one hundred dollars ($100) and not more
than ten thousand dollars ($10,000).” (Stats. 1991, ch. 657, § 1, p. 3020.) The
1992 amendment stated in pertinent part: “[I]f the person is convicted of one or
more felony offenses, the court shall impose a separate and additional restitution
fine of not less than two hundred dollars ($200), subject to the defendant’s ability
to pay
, and not more than ten thousand dollars ($10,000).” (Italics added.) (Stats.
1992, ch. 682, § 4, p. 2922.)

47



VII. DISPOSITION

We reverse the death sentence as to the conspiracy to commit murder count

and remand to the trial court to issue an amended abstract of judgment reflecting a

sentence of imprisonment for 25 years to life for that count. The judgment of

death as to the three other counts, and the judgment in all other respects, is

affirmed.

MORENO, J.

WE CONCUR: GEORGE, C. J.
BAXTER,

J.

WERDEGAR,

J.

CHIN,

J.

BROWN,

J.

48










CONCURRING AND DISSENTING OPINION BY KENNARD, J.

I join the majority in upholding defendant’s conviction for murder (Pen.

Code, § 187) with the special circumstance of multiple murder (Pen. Code,

§ 190.2, subd. (a)(3)). I write separately, however, to point out a problem with the

analysis of one guilt phase issue: the trial court’s exclusion of the testimony of

cult expert Randy Cerny.

Because I disagree with the majority’s conclusion that the prosecutor’s

biblical argument calling for death did not prejudice defendant, I would reverse

the judgment of death.

I

At the time of the murder, defendant was 21 years old and a submissive

member of an occult, satanic cult headed by codefendant Gerald Cruz. Defendant

was subjected to a process of mind control that included regular sleep deprivation,

severe physical punishment, sexual humiliation, and minimization of contact with

his family. Defendant acted as the cult’s “slave,” doing household chores,

cooking, bathing Cruz’s children, acting as a handyman, and staying up at night to

guard the cultists’ camp. He sought Cruz’s permission for even the most trivial of

matters. Defendant’s diary showed that he had internalized many of Cruz’s

values: Defendant wrote of the desire to sacrifice himself so that Cruz’s health

would improve and he expressed gratitude for Cruz being “merciful” when Cruz

refrained from having him beaten.

Cruz was angry at Franklin Raper, whom Cruz accused of bringing in

illegal drugs and attracting drug users to the vicinity of the cultists’ camp. One

1



day, Cruz decided to kill everyone at Raper’s residence. Cruz gave the cultists,

including defendant, exact orders on what to do and threatened to kill anyone who

“messed up.” When victim Emmie Paris encountered defendant in Raper’s

kitchen, she began to scream. Cruz ordered defendant to shut her up, and he

handed defendant a knife. Defendant killed Paris with the knife. Defendant was

convicted of the murder of Paris. Other cult members killed three other people at

the house; defendant was convicted as an accomplice to those killings.

II

At the guilt phase of defendant’s capital trial, the trial court refused to let

retired deputy sheriff Randy Cerny testify “as an expert in the study of cults, in the

mind control of members of cults, how cults operate and what effect it has on the

members.” (Cerny later testified at the penalty phase.)

After a hearing to determine Cerny’s qualifications as an expert, the trial

court acknowledged that Cerny was a qualified expert on cults, and that the subject

of cult behavior was one beyond common knowledge and could suitably be

addressed by an expert opinion. The court, however, barred Cerny from testifying

before the jury at the guilt phase, explaining: “Penal Code Section 28 requires that

such evidence regard a . . . mental disease, mental defect or mental disorder of the

defendant. The Court is not satisfied that Mr. Cerny has the expertise to testify

that mind control, if any, brought about by being a member of a cult is a mental

disease, mental defect, or mental disorder as to Mr. Vieira or as to any other

person.” Defense counsel then said, “I never intended to ask him if anyone had a

mental disease, disorder, or defect.” The trial court replied: “I understand. But to

get to [CALJIC No.] 3.32 [the jury instruction incorporating Penal Code section

28], the testimony has to relate to a mental defect, mental disorder, or mental

disease or it’s irrelevant.”

The trial court could well have concluded that defendant, notwithstanding

his disclaimer, was offering Cerny’s testimony as evidence of mental disease,

2



defect, or disorder, and that such testimony was inadmissible, either because

Cerny was not qualified to render an opinion on these mental states or because it

was testimony of diminished capacity barred by Penal Code section 28. The

problem is that the trial court did not decide whether defendant was offering

evidence of mental disease, defect, or disorder. Instead the court assumed that, to

be admissible, evidence relating to the mental elements of a crime must be

evidence of mental disease, defect, or disorder.

That assumption was incorrect. Penal Code section 28 limits only the use

of evidence offered to show mental disease, mental defect, or mental disorder;

such evidence may not be introduced to show that a defendant lacked the capacity

to form any mental state essential to a charged crime, but it is admissible on the

issue of whether or not the accused actually formed the required mental state.1

There is no rule that evidence offered to show the absence of a mental state

essential to first degree murder must be evidence of a mental disease, a mental

defect, or a mental disorder. To the contrary, a defendant who does not have a

mental disease, mental defect, or mental disorder may still lack the mental state

required to commit a specific intent crime, and is entitled to present evidence from

which the jury could infer the absence of the requisite mental state. Even if cult

expert Cerny was not qualified to testify as to mental disease, defect, or disorder,

he might still be qualified to testify about cult behavior, testimony from which the


1

Section 28, subdivision (a), reads: “Evidence of mental disease, mental

defect, or mental disorder shall not be admitted to show or negate the capacity to
form any mental state, including, but not limited to, purpose, intent, knowledge,
premeditation, deliberation, or malice aforethought, with which the accused
committed the act. Evidence of mental disease, mental defect, or mental disorder
is admissible solely on the issue of whether or not the accused actually formed a
required specific intent, premeditated, deliberated, or harbored malice
aforethought, when a specific intent crime is charged.”

3



jury could draw inferences about defendant’s mental state at the time of the

murders.

But even if the trial court erred in barring cult expert Cerny from testifying

for the defense at the guilt phase, that error was harmless. Although the jury could

have relied on Cerny’s testimony to infer absence of premeditation, in light of the

evidence that defendant was a willing participant in the killings – he agreed to the

plan to kill anyone found at the Raper residence, he laughed when he described the

murder of Emmie Paris, and he told his girlfriend that the victims deserved to die –

it is not reasonably probable that the jury would have done so. (See People v.

Watson (1956) 46 Cal.2d 818, 836.)

Moreover, the jury eventually heard defendant’s expert evidence when

Cerny testified at the penalty phase of the trial and explained how cults use

isolation, sleep deprivation, punishment, and occult ritual to dominate and control

the minds of their members. The jury nevertheless returned a death verdict.

III

At the penalty phase of defendant’s capital trial, the prosecutor argued to

the jury that certain biblical passages justified imposition of the death penalty:

“People from time to time have a problem because they say, ‘Gee, in the Bible it

says, “Thou shall not kill,” and “Vengeance is mine sayeth the Lord. I will

repay.” ’ That’s found in Romans. But in the very next passage . . . , it goes on

and calls for capital punishment and says, ‘[t]he ruler bears not the sword in vain

for he is the minister of God, a revenger or to execute wrath upon him that doeth

evil.’ He’s talking about the ruler, the government, whatever.

“Now, the Judeo-Christian ethic comes from the Old Testament I believe

the first five books  called the Torah in the Jewish religion. And there are two

very important concepts that are found there. And that’s, one, capital punishment

4



for murder is necessary in order to preserve the sanctity of human life, and, two,

only the severest penalty of death can underscore the severity of taking life.

“The really interesting passage is in Exodus, chapter 21, verses 12 to 14:

‘Whoever strikes another man and kills him shall be put to death. But if he did not

act with intent but they met by act of God, the slayer may flee to a place which I

will appoint for you.’ Kind of like life without possibility of parole, haven,

sanctuary. ‘But if a man has the presumption to kill another by treachery, you

shall take him even from my altar to be put to death.’ There is no sanctuary for

the intentional killer, according to the Bible.

“Now, I’ll leave it at that. That was just in the event any of you have any

reservations about religion in this case.”

In

People v. Slaughter (2002) 27 Cal.4th 1187, 1208-1209 (Slaughter), the

same prosecutor as involved here presented the same biblical argument for the

death penalty. This court unanimously held that in making this argument, the

prosecutor committed misconduct. But, according to the majority in Slaughter,

there was no prejudice to the defendant. It reasoned: “Biblical references that

rival in length those in the present case were found harmless in People v. Wash

[1993] 6 Cal.4th 215, 261, because after making the biblical references, ‘the

prosecutor embarked upon a lengthy and detailed argument devoted exclusively to

the evidence in aggravation . . . . He did not return to the subject of God or

religion, but instead urged a sentence of death based upon defendant’s moral

culpability for the crimes in light of the statutory factors.’ ” (People v. Slaughter,

supra, 27 Cal.4th at p. 1211.)

I dissented in Slaughter, joined by Justice Moreno. The dissent stated:

“The majority’s assertion that the prosecutor’s improper argument must be

considered harmless because it was ‘part of a longer argument that properly

focused upon the factors in aggravation and mitigation’ [citation] makes little

5



sense. Under that logic, prosecutors may freely refer to biblical authority when

making their penalty arguments to juries in capital cases, secure in the knowledge

that this court will never reverse a resulting death judgment for this misconduct,

provided only that the prosecutors also present an argument focusing on the

statutory aggravating and mitigating factors. Appeals to divine authority in jury

arguments in capital cases are prejudicial when jurors for whom the aggravating

and mitigating factors appear closely balanced use religious considerations to

resolve their doubts, as the prosecutor's improper argument invites them to do.”

(Slaughter, supra, 27 Cal.4th 1187, 1228 (conc. & dis. opn. of Kennard, J.).)

Like the majority in Slaughter, supra, 27 Cal.4th 1187, the majority here

considers the prosecutor’s improper biblical argument harmless because it was

only a part of the prosecutor’s total peroration, which focused primarily on the

aggravating and mitigating factors. (Maj. opn., ante, at pp. 36-37.) Even if I were

to agree that the improper argument in Slaughter, supra, 27 Cal.4th 1887, was

harmless – which I do not –the harmless nature of the Slaughter argument would

not demonstrate that the improper biblical argument here was harmless.

This is not as aggravated a murder as those in Slaughter, supra, 27 Cal.4th

1887. In Slaughter, the defendant, acting on his own initiative and for the purpose

of robbery, personally shot three people, killing two of them. Defendant here

personally killed one person. In doing so, he did not act on his own initiative or

for his own personal benefit, but as an obedient slave to cult leader Gerald Cruz.

Moreover, here there is a statutory factor mitigating the crime that was not

present in Slaughter, supra, 27 Cal.4th 1187. Acting “under extreme duress or

under the substantial domination of another person” is a mitigating factor which

the jury must take into account if relevant. (Pen. Code, § 190.3, factor (g).) In

this case, the evidence shows that defendant acted under the substantial

domination of cult leader Gerald Cruz, who controlled every aspect of defendant’s

6



life and threatened to kill anyone who did not follow his orders. Absent the

pernicious influence of a satanic cult leader, it is doubtful that defendant would

have committed murder.

The test of prejudice is whether it is reasonably possible (see People v.

Michaels (2003) 28 Cal. 4th 486, 538; People v. Jackson (1996) 13 Cal.4th 1164,

1232) that, without the prosecutor’s improper biblical argument, the jury would

not have returned a verdict of death. The circumstances here meet that test. Thus,

I would reverse the penalty of death.

KENNARD,

J.

7



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

Name of Opinion People v. Vieira
__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No.
S026040
Date Filed: March 7, 2005
__________________________________________________________________________________

Court:
Superior
County: Stanislaus
Judge: Edward M. Lacy, Jr.

__________________________________________________________________________________

Attorneys for Appellant:

Richard L. Rubin, under appointment by the Supreme Court, for Defendant and Appellant.




__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves,
Assistant Attorney General, J. Robert Jibson, John A. O’Sullivan, Julie A. Hokans and Catherine Chatman,
Deputy Attorneys General, for Plaintiff and Respondent.












Counsel who argued in Supreme Court (not intended for publication with opinion):

Richard L. Rubin
Law Office of Richard L. Rubin
4200 Park Boulevard, Suite 249
Oakland, CA 94602
(510) 339-9552

Catherine Chatman
Deputy Attorney General
1300 I Street
Sacramento, CA 94244-2550
(916) 324-5364


Opinion Information
Date:Docket Number:
Mon, 03/07/2005S026040

Parties
1The People (Respondent)
Represented by Attorney General - Sacramento Office
Catherine Chapman, Deputy Attorney General
P.O. Box 944255
Sacramento, CA

2Vieira, Richard John (Appellant)
San Quentin State Prison
Represented by Richard L. Rubin
Attorney at Law
4200 Park Blvd., Suite 249
Oakland, CA

3Vieira, Richard John (Appellant)
San Quentin State Prison
Represented by Wesley Andrew Van Winkle
Attorney at Law
P.O. Box 5216
Berkeley, CA


Disposition
Mar 7 2005Opinion filed

Dockets
Mar 30 1992Judgment of death
 
Apr 9 1992Filed certified copy of Judgment of Death Rendered
  3-30-92.
Nov 29 1995Counsel appointment order filed
  appointing Richard L. Rubin, Esq. to represent appellant on his automatic appeal, including any related habeas proceedings.
Nov 30 1995Compensation awarded counsel
 
Jan 19 1996Change of Address filed for:
  Atty Richard L. Rubin.
Feb 20 1996Application for Extension of Time filed
  To request correction of the Record
Feb 22 1996Extension of Time application Granted
  To May 3,1996 To request correction of the Record
Apr 25 1996Application for Extension of Time filed
  By Applt to request correction of the Record.
Apr 30 1996Extension of Time application Granted
  To Applt To 7-2-96 To request Corr. of Record.
Jun 26 1996Application for Extension of Time filed
  By Applt to request correction of the Record.
Jun 27 1996Extension of Time application Granted
  To Applt To 9-3-96 To request Corr. of Record.
Aug 28 1996Application for Extension of Time filed
  By Applt to request correction of the Record.
Aug 29 1996Extension of Time application Granted
  To Applt To 11-4-96 To request Corr. of Record.
Sep 3 1996Filed:
  Suppl Proof of Service of Request. for Eot.
Nov 4 1996Received copy of appellant's record correction motion
  Request for correction of transcripts, for additional record on appeal, to examine sealed transcripts, and to settle the record (53 pp.)
Nov 7 1996Compensation awarded counsel
 
Apr 10 1997Compensation awarded counsel
 
Jun 5 1998Compensation awarded counsel
 
Oct 15 1998Compensation awarded counsel
 
Oct 15 1998Compensation awarded counsel
 
Jan 20 1999Compensation awarded counsel
 
May 25 1999Compensation awarded counsel
 
Aug 6 1999Record on appeal filed
  C-10 (2,226 Pp.) and R-17 (2,243 Pp.) (Includes Material Under Seal). Clerk's Transcript includes 232 pages of Juror Questionnaires.
Aug 6 1999Appellant's opening brief letter sent, due:
  9-15-99.
Aug 16 1999Compensation awarded counsel
 
Sep 3 1999Application for Extension of Time filed
  To file Aob.
Sep 8 1999Extension of Time application Granted
  To 11/15/99 To file Aob.
Nov 10 1999Application for Extension of Time filed
  To file Aob.
Nov 12 1999Extension of Time application Granted
  To 1/14/2000 To file Aob.
Nov 17 1999Compensation awarded counsel
 
Jan 10 2000Application for Extension of Time filed
  To file Aob.
Jan 12 2000Extension of Time application Granted
  To 3/14/2000 To file Aob.
Mar 3 2000Application for Extension of Time filed
  To file Aob.
Mar 6 2000Extension of Time application Granted
  To 5/15/2000 To file Aob.
Mar 15 2000Compensation awarded counsel
  Atty Rubin
May 5 2000Application for Extension of Time filed
  To file Aob.
May 8 2000Extension of Time application Granted
  To 7/14/2000 To file Aob.
Jul 3 2000Application for Extension of Time filed
  to file AOB.
Jul 11 2000Extension of Time application Granted
  To 9/12/2000 to file AOB. No further ext. of time are contemplated.
Aug 17 2000Counsel's status report received (confidential)
 
Sep 8 2000Application for Extension of Time filed
  To file the AOB. (7th request)
Sep 12 2000Extension of Time application Granted
  To 11/13/2000 to file AOB. No further ext. of time will be granted.
Oct 20 2000Counsel's status report received (confidential)
 
Nov 3 2000Application for Extension of Time filed
  To file AOB. (8th request)
Nov 8 2000Extension of Time application Denied
  To file AOB.
Dec 18 2000Counsel's status report received (confidential)
 
Feb 9 2001Counsel's status report received (confidential)
 
Apr 9 2001Counsel's status report received (confidential)
 
Apr 11 2001Application for Relief from Default filed to file AOB.
 
Apr 11 2001Application to file over-length brief filed
  (3 vol. - 514 Pp. AOB submitted under separate cover)
Apr 11 2001Request for judicial notice filed (AA)
  by appellant
Apr 11 2001Filed: Confidential document by attorney Richard Rubin.
 
Apr 12 2001Filed letter from:
  AG dated: 4/11/2001 re: opposition to applt.'s request for judicial notice.
Apr 16 2001Order filed:
  Applt.'s request for relief from defalut and application to file over length brief is granted.
Apr 16 2001Appellant's opening brief filed
  (3 vol. - 514 Pp.)
Apr 23 2001Compensation awarded counsel
  Atty Rubin
May 2 2001Application for Extension of Time filed
  To file respondent's brief. (1st request)
May 4 2001Extension of Time application Granted
  To 7/16/2001 to file respondent's brief.
May 22 2001Counsel's status report received (confidential)
 
Jul 9 2001Application for Extension of Time filed
  To file resp.'s brief. (2nd request)
Jul 13 2001Extension of Time application Granted
  To 9/14/2001 to file resp.'s brief.
Jul 16 2001Counsel's status report received (confidential)
 
Sep 4 2001Counsel's status report received (confidential)
 
Sep 5 2001Application for Extension of Time filed
  To file respondent's brief. (3rd request)
Sep 13 2001Extension of Time application Granted
  to 11/14/2001 to file resp.'s brief.
Nov 5 2001Request for extension of time filed
  To file resp.'s brief. (4th request)
Nov 9 2001Extension of Time application Granted
  To 1/14/2002 to file resp.'s brief.
Nov 9 2001Counsel's status report received (confidential)
 
Dec 19 2001Request for extension of time filed
  To file resp.'s brief. (5th request)
Dec 27 2001Extension of time granted
  To 3/15/2002 to file resp.'s brief. Dep. AG O'Sullivan anticipates filing the brief by 3/15/2002. No further extension is contemplated
Dec 31 2001Counsel's status report received (confidential)
 
Mar 6 2002Counsel's status report received (confidential)
 
Mar 7 2002Respondent's brief filed
  (112 pp.)
Mar 21 2002Request for extension of time filed
  To file reply brief. (1st request)
Mar 26 2002Extension of time granted
  To 5/28/2002 to file reply brief. The court anticipates that after that date only two further extensions totaling 120 additional days will be granted.
May 1 2002Counsel's status report received (confidential)
 
May 14 2002Request for extension of time filed
  To file reply brief. (2nd request)
May 16 2002Extension of time granted
  To 7/29/2002 to file reply brief. The court anticipates that after that date, only two further extensions totaling 120 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any seprate counsel of record of this schedule, and take all steps necessary to meet this schedule.
Jun 24 2002Counsel's status report received (confidential)
  from atty Rubin.
Jul 11 2002Request for extension of time filed
  To file applt.'s reply brief. (3rd request)
Jul 16 2002Extension of time granted
  To 9/27/2002 to file applt.'s reply brief. The court anticipates that after that date, only one further extension totaling 60 additional days will be granted. Counsel is ordered to inform his assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record of this schedule, and to take all steps necessary to meet it.
Sep 3 2002Counsel's status report received (confidential)
 
Sep 17 2002Request for extension of time filed
  To file appellant's reply brief. (4th request)
Sep 19 2002Extension of time granted
  To 11/26/2002 to file appellant's reply brief. The court anticipates that after that date, no further extension will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Oct 30 2002Counsel's status report received (confidential)
 
Nov 21 2002Request for extension of time filed
  To file appellant's reply brief. (5th request)
Nov 26 2002Extension of time granted
  To 1/27/2003 to file appellan'ts reply brief. After that date, no further extension will be granted. Extension is granted based upon counsel Richard L. Rubin's representation that he anticiapates filing that brief by 1/25/2003.
Dec 17 2002Counsel's status report received (confidential)
 
Dec 19 2002Compensation awarded counsel
  Atty Rubin
Jan 24 2003Request for extension of time filed
  to file appellant's reply brief. (6th request)
Jan 24 2003Compensation awarded counsel
  Atty Rubin
Jan 27 2003Filed:
  Declaration of attorney Richard L. Rubin re habas corpus investigation (confidential).
Jan 29 2003Extension of time granted
  to 3/26/2003 to file appellant's reply brief. Extension is granted based upon counsel Richard L. Rubin's representation that he anticipates filing that brief by 3/26/2003. After that date, no further extension will be granted.
Feb 13 2003Counsel's status report received (confidential)
 
Mar 17 2003Request for extension of time filed
  to file appellant's reply brief. (7th request)
Mar 19 2003Extension of time granted
  to 5/27/2003 to file appellant's reply brief. After that date, no further extension will be granted. Exension is granted based upon counsel Richard L. Rubin's representation that he anticipates filing that brief by 5/25/2003.
Apr 18 2003Counsel's status report received (confidential)
 
May 21 2003Request for extension of time filed
  to file appellant's reply brief. (8th request)
May 27 2003Extension of time granted
  to 7/28/2003 to file appellant's reply brief. After that date, no further extension will be granted. Extension is granted based upon counsel Richard L. Rubin's representation that he anticipates filing that brief by 7/26/2003.
Jul 15 2003Counsel's status report received (confidential)
 
Jul 18 2003Request for extension of time filed
  to file reply brief. (9th request)
Jul 23 2003Extension of time granted
  to 9-26-2003 to file reply brief. After that date, no further extension will be granted. Extension granted based upon counsel Richard Rubin's representation that he anticipates filing the brief by 9-26-2003.
Sep 10 2003Counsel's status report received (confidential)
 
Sep 11 2003Appellant's reply brief filed
  (81 pp.)
Oct 27 2003Counsel's status report received (confidential)
 
Feb 3 2004Motion filed (in AA proceeding)
  "Appellant's (pro se) Challenge to Appointed Counsel's Judgment and Diligence Amounting to Procedural Error." FILING STRICKEN PER LETTER FROM THE CLERK ON 2/23/2004
Feb 3 2004Compensation awarded counsel
  Atty Rubin
Feb 23 2004Counsel's status report received (confidential)
 
Feb 23 2004Letter sent to:
  appellant returning pro se document submitted and filed on 2/3/2004.
Apr 20 2004Counsel's status report received (confidential)
 
Jun 28 2004Counsel's status report received (confidential)
 
Jun 29 2004Compensation awarded counsel
  Atty Rubin
Aug 13 2004Counsel's status report received (confidential)
  from atty Rubin.
Aug 18 2004Supplemental briefing ordered
  The court requests the parties to file supplemental letter briefs addressing People v. Cash (2002) 28 Cal.4th 703, 718-723 with reference to Claim II in Appellant's Opening Brief. (AOB 121-130.) The Attorney General is directed to file a brief by September 1, 2004. Appellant is to respond by September 15, 2004. Chin, J., was absent and did not participate.
Aug 20 2004Request for extension of time filed
  by respondent to file supplemental letter brief. (1st request)
Aug 25 2004Extension of time denied
  to file respondent's supplemental letter brief.
Sep 2 2004Letter brief filed
  supplemental letter brief filed by respondent, pursuant to court's order of 8/18/2004. (9 pp.)
Sep 3 2004Received:
  letter from respondent, dated 9/1/2004, requesting that oral argument not be calendared on the dates of 10/20-10/26/2004, due to pre-exisiting vacation plans.
Sep 10 2004Letter brief filed
  supplemental letter brief filed by appellant, pursuant to the court's order of 8/18/2004. (14 pp.)
Sep 10 2004Received:
  Letter from appellant's counsel, dated 9/8/2004, requesting that oral argument not be scheduled for the following dates due to calendar conflicts: Oct. 5-8, Oct. 19-21, Nov. 5-8 and Dec. 13-16.
Sep 22 2004Exhibit(s) lodged
  People's: 31, 44, 45; People's 4 and 86 (from trial of People v. LaMarsh & Willey, Alameda Co. Superior Court no. 110467C&D).
Oct 13 2004Oral argument letter sent
  advising counsel that case could be scheduled for oral argument as early as December calendar, to be helad at special session at University of San Diego Law School week of Dec. 6, 2004. Any request for additional time (to argue), notification of requirement for two counsel, or advisement of "focus issues" must be made no later than 10 days after the case has been set for oral argument.
Nov 3 2004Case ordered on calendar
  12/8/04 @ 1:30pm, San Diego
Nov 15 2004Filed letter from:
  Appellant's counsel, dated 11/12/2004, re focus issues for oral argument.
Nov 17 2004Filed:
  respondent's focus issue letter, dated 11-15-2004.
Nov 22 2004Received:
  Letter from apellant's counsel, dated 11/19/2004, re additional authority for oral argument.
Nov 23 2004Received:
  letter from respondent, dated 11-22-2004, with additional authority.
Dec 1 2004Request for judicial notice denied
  Request for judicial notice, filed April 11, 2001, is denied.
Dec 3 2004Counsel's status report received (confidential)
 
Dec 8 2004Cause argued and submitted
 
Jan 4 2005Counsel's status report received (confidential)
 
Feb 24 2005Counsel's status report received (confidential)
 
Mar 7 2005Opinion filed: Affirmed in part, reversed in part
  Death sentence reversed as to the conspiracy to commit murder count and remanded to the trial court to issue an amended abstract of judgment reflecting a sentence of imprisonment for 25 years to life for that count. The judgment of death as to the three other counts, and the judgment in all other respects, is affirmed. Opinion by Moreno, J. ----- joined by George, C.J., Baxter, Werdegar, Chin and Brown, JJ. Concurring and Dissenting Opinion by Kennard, J.
Mar 18 2005Rehearing petition filed
  by appellant. (2492 words; 15 pp.)
Mar 21 2005Time extended to consider modification or rehearing
  to 6/3/2005, or the date upon which rehearing is either granted or denied, whichever occurs first.
May 24 2005Counsel's status report received (confidential)
 
May 26 2005Rehearing denied
  Petition for rehearing denied. Opinion modified. Kennard, J., is of the opinion the petition should be granted.
May 26 2005Opinion modified - change in judgment
 
Jun 15 2005Compensation awarded counsel
  Atty Rubin
Jun 16 2005Letter sent to:
  counsel with copy of correct modification of opinion.
Jun 28 2005Remittitur issued (AA)
 
Jul 1 2005Counsel's status report received (confidential)
 
Jul 14 2005Received:
  acknowledgment of receipt of remittitur.
Jul 25 2005Motion for appointment of counsel filed
  request to appoint associate counsel.
Aug 10 2005Counsel appointment order filed
  Good cause appearing, the application of appointed counsel Richard L. Rubin for the appointment of associate counsel, filed July 25, 2005, is granted. Wesley A. Van Winkle is hereby appointed as associate counsel of record for condemned prisoner Richard John Vieira. Counsel is appointed for purposes of all postconviction proceedings in this court, and for subsequent proceedings, including the preparation and filing of a petition for clemency with the Governor of California, as appropriate. (See Supreme Ct. Policies Regarding Cases Arising From Judgments of Death, policy 3, timeliness std. 1-1, & compensation std. 2-1.) Werdegar, J., was absent and did not participate.
Aug 23 2005Counsel's status report received (confidential)
 
Sep 6 2005Received:
  letter from U.S.S.C., dated 8/30/2005, advising cert petition filed on 8/23/2005 as No. 05-6075.
Oct 26 2005Counsel's status report received (confidential)
  from atty Rubin.
Nov 7 2005Certiorari denied by U.S. Supreme Court
 
Dec 7 2005Exhibit(s) returned
  People's 31, 44, 45, 41 and 83.
Dec 20 2005Received:
  acknowledgment of receipt of exhibits.
Dec 30 2005Counsel's status report received (confidential)
  from atty Rubin.
Feb 7 2006Counsel's status report received (confidential)
  from atty Rubin.
Apr 12 2006Counsel's status report received (confidential)
  from atty Rubin.
Apr 19 2006Compensation awarded counsel
  Atty Rubin
Jun 5 2006Counsel's status report received (confidential)
  from atty Rubin.
Aug 2 2006Counsel's status report received (confidential)
  from atty Rubin.
Aug 30 2006Compensation awarded counsel
  Atty Rubin
Oct 31 2006Related habeas corpus petition filed (post-judgment)
  No. S147688
Nov 3 2006Filed:
  declaration of atty Richard Rubin (confidential).
Nov 9 2006Filed:
  supplemental declaration of atty Richard Rubin (confidential).
Nov 15 2006Compensation awarded counsel
  Atty Rubin
Jan 24 2007Compensation awarded counsel
  Atty Rubin

Briefs
Apr 16 2001Appellant's opening brief filed
 
Mar 7 2002Respondent's brief filed
 
Sep 11 2003Appellant's reply brief filed
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website