Supreme Court of California Justia
Docket No. S065720
People v. Vines

Filed 5/19/11



IN THE SUPREME COURT OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

S065720

v.

SEAN VENYETTE VINES,

Sacramento County

Defendant and Appellant.

Super. Ct. No. 94F08352



A Sacramento County jury convicted defendant Sean Venyette Vines of the

first degree murder of Ronald Lee (Pen. Code, § 187; all further statutory

references are to the Penal Code unless otherwise indicated) and found true a

special circumstance allegation that defendant murdered Lee while engaged in the

commission of a robbery (§ 190.2, former subd. (a)(17)(i), now subd. (a)(17)(A)).

It also convicted defendant of eight counts of robbery (§ 211), five counts of

assault with a deadly weapon (§ 245, subd. (a)(2)), four counts of kidnapping to

commit robbery (§ 209, subd. (b)), four counts of false imprisonment (§ 236), and

two counts of being a felon in possession of a firearm (§ 12021, subd. (a)). As to

19 of the counts, the jury found true allegations that defendant personally used a

firearm during the commission of the crimes. (§ 12022.5, subd. (a).) The trial

court found true two prior conviction allegations, one within the meaning of

sections 667 and 1170.12, and one within the meaning of section 667.5,

subdivision (b).

1


The jury set the penalty for defendant‟s murder conviction at death, and the

trial court sentenced him accordingly. This appeal is automatic. (§ 1239, subd.

(b).)

I. GUILT PHASE

A. Facts

1. Introduction

On September 17, 1994, someone robbed the McDonald‟s restaurant on

Watt Avenue in Sacramento. Eleven days later, on September 28,1 another

McDonald‟s restaurant, on Florin Road in Sacramento, was robbed and employee

Ronald Lee was killed by a gunshot to the back of his head. Defendant was

employed at the Watt Avenue restaurant on the date it was robbed and previously

had worked at the Florin Road restaurant.

2. Watt Avenue Robbery

a. Prosecution case

In September 1994, defendant and William Deon Proby worked at the Watt

Avenue McDonald‟s restaurant. Two or three weeks before the robbery, while

working the closing shift, defendant asked one of the managers, Charles Ruby, Jr.,

about procedures in the event of a robbery. Ruby told him that employees and

managers were supposed to give the robbers the money without resistance.

Defendant chuckled and replied, “We are going to get robbed.”

On September 17, the day of the Watt Avenue robbery, defendant was

scheduled to work the closing shift at the restaurant, but called in to say he would

be unable to come to work. Manager Stanly Zaharko and employees John


1

Unless otherwise specified, all dates refer to 1994.

2

Burreson, Michael Baumann, and Leticia Aguilar worked the closing shift that

evening. Only Zaharko had access to the safe.

The restaurant was scheduled to close at midnight. About 11:45 p.m.,

Baumann saw someone enter the restaurant and go into the bathroom. Although

he got only a quick glimpse of the side of the person‟s face, Baumann was certain

it was defendant.

Just after midnight, Zaharko closed the restaurant and began to lock the

doors and make sure that no one other than the employees was still on the

premises. Checking the men‟s restroom, Zaharko saw that someone was in a stall.

He realized it was not an employee when he saw all the employees in the front

counter and grill area of the restaurant a few moments later. About 12:15 a.m.,

Zaharko headed toward the restroom to tell the person to leave. As he rounded the

corner of the lobby, he saw a man walking out of the restroom with a gun in his

hand. The man was a dark-skinned African-American between the ages of 18 and

25, about six feet tall and weighing about 200 pounds.2 He was wearing faded

jeans, a green jacket with a hood over his head, and a green scarf wrapped around

his face.

Believing the restaurant was being robbed, Zaharko raised his hands. The

robber raised his gun and pointed it at Zaharko. The robber approached to within

three feet of Zaharko, who, still facing the robber, walked backward to the counter

area where the safe was located. Although he was not absolutely certain, Zaharko

believed the robber was defendant.


2

Defendant, who is African-American, stands six feet three inches tall and

was 21 years old at the time of the offenses.

3

When they reached the safe, defendant, using an unnaturally low, gravelly

voice, ordered Zaharko to open it. He had the gun pointed at the back of

Zaharko‟s head. After Zaharko opened the safe, defendant ordered him to hand

over the keys. Zaharko complied by placing both the store keys and his personal

keys on top of the safe. Defendant then directed Zaharko to the back of the

restaurant, where the other employees were standing beside a sink. Still disguising

his voice, defendant told all the employees to go downstairs. As they proceeded

single file down the basement stairway, which was not visible from the customer

side of the front counter, defendant kept his gun pointed at them. Aguilar

recognized defendant, with whom she had worked as many as a dozen times, most

recently the preceding day, as the robber. Defendant instructed them to enter the

walk-in freezer. Before doing so, Baumann turned to face defendant, thinking of

trying to take his gun. Baumann recognized defendant and, after looking into the

robber‟s eyes, was even surer it was defendant.3 Once the employees were inside

the freezer, defendant slammed the freezer door and locked it; although the

freezer‟s lock was inoperable, a metal bar had been fabricated to connect with an

eyelet mounted on the wall to permit locking the freezer. Defendant had several

times previously locked the freezer using this prefabricated latch.

After waiting about 10 minutes, Zaharko and the other employees used an

ax that was stored in the freezer to break through the door and escape. In the

course of escaping, Zaharko injured his hand. One of the employees called 911,

and they waited in the basement until the police arrived.


3

Although at one point in his direct examination Baumann indicated he did

not recognize defendant as the robber, he later testified he had not been truthful in
that part of his testimony because he feared losing his family. He affirmed his
certainty that defendant was the robber.

4

Upstairs, Zaharko saw that the safe had been ransacked. About $2,000 had

been stolen, and Zaharko‟s canvas attaché bag and Dodge Dakota truck, which he

drove to work every day and routinely parked in the same spot, also were missing.

About a month before the robbery, Zaharko had given defendant a ride home from

work in the truck. Zaharko told the officers he believed defendant was the robber

and described him as a dark-complected Black male, about 21 years old, six feet

tall, and weighing 210 pounds.

Vera Penilton, Proby‟s girlfriend, testified that after the robbery defendant

and Proby picked her up at her mother‟s house and drove to the Rodeway Inn on

Watt Avenue. She brought her newborn baby with her. Defendant and Proby

were driving a truck, and Penilton saw a nametag bearing the name “Stanly” on

the floor of the vehicle. Defendant and Proby previously had told her they

planned to rob the McDonald‟s restaurant where they worked, and now told her

about the robbery. Defendant said he committed the robbery by himself because

Proby got scared and waited in the car. Defendant described waiting in the

bathroom before robbing the restaurant and locking the employees in the freezer.

He also told Penilton he hated his manager, Zaharko, and was going to shoot him,

but did not do so. As he said this, he was laughing. Penilton saw that defendant

and Proby had “a lot of money” and defendant had a small silver handgun.

At some point, defendant and Proby tried to clean the truck and wipe off

any fingerprints. They threw some things from the truck into a trash can behind a

restaurant and tried to burn the truck. Finally, they left the truck near a Denny‟s

restaurant in the Target shopping center on Mack Road.

Defendant had taken the cellular phone that was in Zaharko‟s truck.

Between 4:53 and 4:57 a.m. on September 18, the phone was used to call Ulanda

Johnson‟s home telephone and pager numbers and Sonya Williams‟s home

telephone number. Defendant had relationships with both women.

5

That same night, defendant picked up Sonya Williams at her home and

brought her to the Rodeway Inn, where they met Proby and Penilton. Along the

way, Williams noticed defendant had a small silver gun on his lap. He told her

“he did what he said he was going to do or what he talked about,” and showed her

a wad of bills. (Two to three weeks earlier, defendant had told Williams that he

and Proby were going to rob the McDonald‟s restaurant where he worked.)

Defendant elaborated that he had committed the robbery with Proby; the two men

had shared the proceeds, with $900 going to defendant and $700 to Proby; and

they had used Proby‟s car. Defendant told Williams that during the robbery he

came out of the bathroom, put a gun to a man‟s face, put everyone in the freezer,

and took the money. When Williams asked defendant something to the effect of

“What if you had killed those people that were in the freezer?” he calmly replied,

“So?”4 After they checked into the motel, with defendant presenting his

identification, Williams counted the wad of bills defendant had shown her earlier;

it totaled about $260 in $5 and $1 bills.


4

On September 30, Detective Danny Minter of the Sacramento County

Sheriff‟s Department interviewed Williams regarding the Watt Avenue robbery.
Detective John Cabrera of the Sacramento Police Department, who was
investigating the Florin Road robbery murder, was also present. During the
interview, Williams recounted many statements defendant had made to her about
the Watt Avenue robbery as they drove to the Rodeway Inn. At trial, Williams
claimed she could not remember many of the details of that conversation, or
denied defendant had ever made such statements. The trial court allowed the
prosecution to play excerpts of the videotaped interview to impeach Williams with
her prior inconsistent statements. Even after seeing those excerpts, however,
Williams often claimed not to remember making the earlier statements. Detective
Minter also testified regarding statements Williams had made during the interview
that were inconsistent with her trial testimony. On cross-examination, Williams
asserted she had made up all of the statements she had attributed to defendant
concerning the robbery because she was angry at him.

6

Defendant and Williams stayed at the Rodeway Inn for three nights. When

they checked out on September 20, defendant paid the bill in cash.

The day after the robbery, defendant went to the Watt Avenue restaurant to

work the closing shift. Charles Ruby, Jr., who had learned of the robbery, told

Lisa Lee, the general manager of the restaurant, about his earlier conversation with

defendant in which defendant had predicted they would be robbed. Lee later said,

loudly enough for defendant to hear, that the police had an idea about who had

robbed the restaurant and would be coming back that night to talk to some people.

Defendant dropped a basket of fries and became very nervous. After that night,

defendant never worked at the restaurant again.

That same day, Zaharko‟s truck was found at the Target shopping center on

Mack Road. Defendant had worked at the Denny‟s restaurant at the same

shopping center while employed at the McDonald‟s restaurant on Florin Road.

When he got the truck back, Zaharko noticed that some items, including his

cellular phone, were missing, and he found a bullet behind the driver‟s seat that

proved to be a .25-caliber ACP (automatic cartridge for pistol).

Sean Gilbert worked with defendant and Proby at the Watt Avenue

McDonald‟s. A week or two before the robbery, defendant told Gilbert he owned

a rifle or shotgun. Not more than a week before the robbery, Proby showed

Gilbert a chrome-colored .25-caliber semiautomatic handgun.

The day after the robbery, Gilbert saw defendant at work with a new Starter

brand team jacket and a new Walkman. A couple of days after the robbery, Ruby

saw defendant with what appeared to be a new red leather team jacket and a new

portable compact disc player.

7

b. Defense case

The defense presented the testimony of several witnesses in an effort to cast

doubt on the eyewitness identifications. John Burreson, who was working at the

Watt Avenue McDonald‟s at the time of the robbery, testified that defendant walks

with a limp and he did not notice the robber doing so. Burreson did not recognize

defendant as being the robber, but acknowledged he never looked at the robber‟s

face and only saw him take three or four steps. In an interview with a police

officer on the night of the robbery, Michael Baumann indicated he thought

defendant was the robber, but did not say he was sure. In a later interview with

Detective Minter, however, Baumann positively identified defendant as the robber.

In a March 1995 interview, Baumann told defense investigator Marilyn Mobert

that the robber “kind of looked like” defendant and, when Mobert showed him a

photo of Vera Penilton‟s cousin, Anthony Edwards, Baumann indicated that

Edwards‟s nose, mouth, and complexion were similar to the robber‟s.5

3. Florin Road Robbery and Murder

a. Prosecution case

After the Watt Avenue robbery, defendant told Proby and Penilton he

wanted to “do another lick,” i.e., commit another robbery. During September

1994, the month in which the two robberies occurred, Ulanda Johnson testified

defendant and Proby were good friends and saw each other every day; she teased

defendant that Proby was his “girlfriend.”


5

Neither Zaharko, Baumann, Aguilar, nor Burreson, who were all shown the

photo of Edwards, ever identified him as the robber.

8

On September 27 or 28,6 defendant accompanied one of Johnson‟s friends,

Deborah Allen, to a residence on Hillsdale Boulevard in Sacramento so she could

retrieve some of her property. Allen testified defendant was holding a small silver

gun.

Defendant and Proby were seen together on September 28, both before and

after the Florin Road robbery, at Penilton‟s and Johnson‟s residences. Defendant

was carrying his black backpack when he left Johnson‟s house that evening.

Jeffrey Hickey was the manager in charge of the closing shift at the Florin

Road McDonald‟s on September 28. Also working that shift were Ronald Lee,

Pravinesh Singh, and Jerome Williams. Previously, from October 1993 to April

1994, defendant had worked at the same restaurant. Hickey, Lee, and defendant

had worked the same shift together about a dozen times.

The restaurant was scheduled to close at 11:00 p.m. About 10:40 p.m.,

Hickey entered the men‟s restroom, propped open the door, and began to scrub

graffiti off the wall. A loud aluminum fan made it difficult to hear what was going

on elsewhere in the restaurant. While Hickey was cleaning the wall, an African-

American man standing about Hickey‟s own height (5 feet 10½ inches tall),

weighing about 165 pounds, and wearing a baseball cap and a scarf over the lower

portion of his face, whom Hickey later identified as Proby, came into Hickey‟s

view in the doorway. Pointing what appeared to be a sawed-off rifle at Hickey,

Proby told him to lie down on the floor, and Hickey complied. Proby left the

bathroom and headed toward the main area of the restaurant, but returned after

about two minutes and asked Hickey if he could open the safe. Still pointing the

6

Deborah Allen told the police during one interview that this incident

occurred on September 27 and in a later interview that it occurred on
September 28. Johnson testified it occurred on September 28.

9

gun at Hickey, Proby followed him to the restaurant‟s office. Ronald Lee lay on

the floor just outside the office doorway. The other employees were in the stock

room just past the office. A second man, whom Hickey described as being about

six feet two inches tall and weighing 185 to 200 pounds, was standing against a

salad preparation table just outside the office and holding what appeared to be a

small semiautomatic handgun. Although Hickey deliberately refrained from

looking at the second man‟s face in order to avoid giving the impression he was

looking for identifying features, he perceived that the second man‟s physical

characteristics were consistent with defendant‟s. While Hickey was opening the

safe, the second man told him three times to hurry up, in an unnaturally low voice,

as if he were trying to sound gruff. After opening the safe, Hickey left the office

and lay on the floor facing the back of the restaurant, where the employees were.

The second robber put his foot on Hickey‟s head to stop him from looking at the

employees. Hickey heard cash drawers being removed from the safe. The second

robber reached into Hickey‟s back pocket, removed his wallet, and after a few

seconds placed it on Hickey‟s back. After two or three minutes, Hickey heard the

robbers leave the restaurant. After about two more minutes, Hickey got up,

checked on the other employees, and called the police. Singh and Williams got

up, but Lee still lay on the floor. Hickey then noticed that Lee had a wound on the

back of his head. An ambulance later came to take Lee away.

Hickey ascertained that the robbers had taken about $550 in cash and a steel

box containing some gift certificates.

After the robbery, about 11:30 p.m., defendant and Proby went to Ulanda

Johnson‟s house, where Johnson noticed defendant was wearing his black

backpack on his right shoulder. The next morning, the backpack, containing a

gun, was on Johnson‟s living room floor.

10

Also late in the evening after the robbery, defendant and Proby went to

Vera Penilton‟s house, entered her bedroom, and shut the door. Penilton stood

outside the door, listening to their conversation. She heard Proby talking about

how they had robbed another McDonald‟s, and heard defendant say he had killed

his friend. Penilton entered the bedroom, and defendant told her he had shot his

friend in the back of the head because the boy had said his name. In defendant‟s

backpack were a metal box containing gift certificates and some rolls of coins.

On September 29, the day after the Florin Road robbery murder, defendant

made a deposit of $212, consisting of $5 and $1 bills, into his share account at the

Safe Federal Credit Union. Less than 20 minutes later, Proby opened an account

at the same credit union.

Later that day, defendant and Penilton were riding in Proby‟s car while

Proby drove. A police car with flashing lights came up behind them, and officers

inside tried to get Proby to stop. At defendant‟s urging, Proby continued to drive,

running several red lights. Finally, having driven into the parking lot at Ulanda

Johnson‟s apartment building, defendant and Proby jumped out of the moving car,

which crashed into a police car and came to a stop. Defendant and Proby were

arrested.

Penilton was taken to the police station and interviewed. Initially, she

testified, she did not tell the officers the whole truth because she was afraid. She

did, however, tell them about the conversation she had overheard between

defendant and Proby in her bedroom and that defendant had told her he had killed

a boy. Penilton allowed the officers to search her room. They seized money, gift

certificates, and the metal box. During a second search, officers seized the phone

defendant had taken in the Watt Avenue robbery. Penilton agreed to speak with

the officers a second time because she felt bad she had not previously told them

11

the truth. During the second interview, she told them what she knew about the

robberies.

The cause of Lee‟s death was determined to be a wound to the back right

side of his head from a copper-jacketed .25-caliber ACP bullet designed to operate

in a semiautomatic weapon. A live cartridge of the same type of ammunition was

recovered from Zaharko‟s truck.

b. Defense case

Pravinesh Singh was cleaning the kitchen at the time of the robbery and

saw only one of the robbers, whom he described as being a dark-complected

African-American male about five feet eight inches tall, wearing black clothing

and a green ski mask. The robber, who Singh testified was not defendant, held a

small silver handgun with which he motioned nervously to Singh to get onto the

floor. Singh complied, lying facedown toward a storage room and away from the

robber. Singh saw Ronald Lee walking toward the safe and standing near the

office door. Singh heard a voice coming from the office, angrily demanding the

safe be opened, and then heard a gunshot and a “dropping” sound, like someone

falling down. He did not hear Lee say anything to the robber.

B. Discussion

1. Jury Selection Issues

a. Asserted Batson/Wheeler error

Defendant contends the judgment must be reversed because the prosecutor

peremptorily challenged a prospective juror on the basis of race and the trial court

erred in overruling defendant‟s objection to the challenge, in violation of

defendant‟s constitutional rights to a trial by a jury drawn from a representative

cross-section of the community, to equal protection of the law, and to a

fundamentally fair and reliable trial. (Batson v. Kentucky (1986) 476 U.S. 79, 89;

12

People v. Wheeler (1978) 22 Cal.3d 258, 276-277.)7 For the reasons that follow,

we disagree.

“ „Both the state and federal Constitutions prohibit the use of peremptory

challenges to remove prospective jurors based solely on group bias.‟ ” (People v.

Stanley (2006) 39 Cal.4th 913, 936.) Recently, “the United States Supreme Court

reaffirmed that Batson states the procedure and standard to be employed by trial

courts when challenges such as defendant‟s are made. „First, the defendant must

make out a prima facie case “by showing that the totality of the relevant facts

gives rise to an inference of discriminatory purpose.” [Citations.] Second, once

the defendant has made out a prima facie case, the “burden shifts to the State to

explain adequately the racial exclusion” by offering permissible race-neutral

justifications for the strikes. [Citations.] Third, “if a race-neutral explanation is

tendered, the trial court must then decide . . . whether the opponent of the strike

has proved purposeful racial discrimination.” [Citation.]‟ ” (People v. Cornwell

(2005) 37 Cal.4th 50, 66-67; see also People v. Mills (2010) 48 Cal.4th 158, 173.)

“ „ “[A] defendant satisfies the requirements of Batson‟s first step by

producing evidence sufficient to permit the trial judge to draw an inference that

discrimination has occurred.” [Citation.] [¶] In determining whether the

defendant ultimately has carried his burden of proving purposeful racial

discrimination, “the trial court „must make “a sincere and reasoned attempt to

evaluate the prosecutor‟s explanation in light of the circumstances of the case as

then known, his knowledge of trial techniques, and his observations of the manner

in which the prosecutor has examined members of the venire and has exercised

7

Although at trial defendant cited only Wheeler in support of his objection,

this sufficed to preserve his Batson claim for appeal. (People v. Yeoman (2003) 31
Cal.4th 93, 117-118.)

13

challenges for cause or peremptorily . . . .” [Citation.]‟ ” (People v. Reynoso

(2003) 31 Cal.4th 903, 919.) “[T]he trial court is not required to make specific or

detailed comments for the record to justify every instance in which a prosecutor‟s

race-neutral reason for exercising a peremptory challenge is being accepted by the

court as genuine.” ‟ ” (People v. Stanley, supra, 39 Cal.4th at p. 936.)

“Review of a trial court‟s denial of a Wheeler/Batson motion is deferential,

examining only whether substantial evidence supports its conclusions. [Citation.]

„We review a trial court‟s determination regarding the sufficiency of a

prosecutor‟s justifications for exercising peremptory challenges “ „with great

restraint.‟ ” [Citation.] We presume that a prosecutor uses peremptory challenges

in a constitutional manner and give great deference to the trial court‟s ability to

distinguish bona fide reasons from sham excuses. [Citation.] So long as the trial

court makes a sincere and reasoned effort to evaluate the nondiscriminatory

justifications offered, its conclusions are entitled to deference on appeal.

[Citation.]‟ ” (People v. Lenix (2008) 44 Cal.4th 602, 613-614.)

Defendant‟s contention relates to the excusal of M.H, an African-American

male prospective juror. In response to defendant‟s objection to the prosecutor‟s

challenge to M.H., the trial court asked the prosecutor to state his reasons for the

challenge on the record, impliedly finding defendant had made a prima facie

showing of discrimination.8 (People v. Fuentes (1991) 54 Cal.3d 707, 716.)

Turning first to M.H.‟s questionnaire responses, the prosecutor explained he

challenged M.H. because M.H. wrote that the O.J. Simpson trial “restore[d]” his


8

At the same time, defendant objected to the prosecutor‟s challenge to

another African-American prospective juror, B.H. After reviewing B.H.‟s jury
questionnaire, the trial court stated it was satisfied B.H. was not excused on the
basis of race, and defendant does not challenge that ruling here.

14

“faith” in the justice system, whereas the prosecutor believed the Simpson trial

was a “travesty.” The prosecutor also was concerned that M.H. “disagreed

strongly” with the proposition that if the prosecution brings someone to trial, that

person is probably guilty; the prosecutor reasoned he could “live with” a juror who

“disagreed somewhat” with that proposition, but a response as extreme as M.H.‟s

was problematic, in the prosecutor‟s view. The prosecutor also noted that M.H.

believed it was better to let some guilty people go free rather than risk convicting

an innocent person, whereas the prosecutor preferred a jury composed of people

“oriented the other way.” The prosecutor cited M.H.‟s views on the death penalty,

specifically his statement (as paraphrased by the prosecutor) that he would only

impose it if he were required to do so; because a death sentence is never

mandatory, the prosecutor reasoned M.H. would not impose it: “And he is of the

frame of mind, I feel someone is going to have to force him or require him to do it,

and I don‟t believe on this type of a decision I want someone with that frame of

mind, because it is a major decision in someone‟s life, and I think they have to feel

comfortable about it, and I don‟t feel he felt comfortable about it.” Finally, the

prosecutor cited M.H.‟s questionnaire response that he originally felt the death

penalty was imposed unfairly against African-Americans, and now was unsure;

the prosecutor “didn‟t feel that he would have the strength to [impose the death

penalty], even if he felt that it was right.” The trial court denied the motion

without comment.

Defendant argues the trial court failed to make a sincere and reasoned

attempt to evaluate the prosecutor‟s stated reasons for the excusal. As noted, the

trial court is not required to explain on the record its ruling on a Batson/Wheeler

motion. (People v. Reynoso, supra, 31 Cal.4th at p. 919.) “When the prosecutor‟s

stated reasons are both inherently plausible and supported by the record, the trial

court need not question the prosecutor or make detailed findings.” (People v.

15

Silva (2001) 25 Cal.4th 345, 386.) Citing Silva, at page 385, defendant contends

such an explanation was necessary in this case because the record contradicts the

prosecutor‟s stated reasons for the challenge. To the contrary, we believe a fair

reading of the record supports those reasons, along with the trial court‟s ruling.

Of the reasons the prosecutor gave for excusing M.H., defendant here

focuses primarily on one: the prosecutor‟s assertion that M.H. said he would

impose the death penalty only if required to do so. Defendant argues that, contrary

to the prosecutor‟s explanation, M.H. did not indicate he would impose the death

penalty only if required to do so, but rather said, “if I were required to impose it I

would,” after a fair trial. M.H.‟s entire response to the relevant question asking

him to briefly describe his opinions on the death penalty was that the “death

penalty should only be applied under certain circumstances, only after fair trail

[sic] if I were required to impose it I would.” This answer is reasonably

susceptible of the interpretation the prosecutor placed on it. As the Attorney

General argues, M.H. identified only two circumstances in which he would vote

for death: after a fair trial and if he were required to do so. Defendant‟s trial

presumably would be fair, but in no event would M.H. be required to vote for the

death penalty. The prosecutor therefore could reasonably be concerned that M.H.

would not be a favorable juror for the prosecution. “[A] prospective juror‟s

scruples regarding the death penalty „are reasonably related to trial strategy

[citation] and are a legitimate race-neutral reason for exercising a peremptory

challenge.‟ ” (People v. Cowan (2010) 50 Cal.4th 401, 448-449.) That M.H.

stated on voir dire that he could consider both penalties, and thus demonstrated he

was not subject to removal for cause (see Wainwright v. Witt (1985) 469 U.S. 412,

424 [a juror in a capital case may be excused if his or her views would “ „prevent

or substantially impair the performance of his duties as a juror in accordance with

his instructions and his oath‟ ”]), did not preclude the prosecutor from exercising a

16

peremptory challenge when M.H.‟s questionnaire responses indicated a degree of

reluctance to impose the death penalty with which the prosecutor was

uncomfortable. (See Cowan, at pp. 448-451 [discussing prospective jurors‟ oral

and written comments in upholding excusals]; People v. Semien (2008) 162

Cal.App.4th 701, 708.)9

The prosecutor‟s interpretation of M.H.‟s response to the question seeking

his views on the death penalty, moreover, must be understood in light of his

responses to questions No. 80 and 90.b, where he espoused, respectively, the

views that the criminal justice system treats some individuals unfairly based on

race and that, in the past and possibly in the present day, the death penalty has

been imposed unfairly against members of minority groups. Given M.H.‟s

expressed concerns regarding the fairness of the criminal justice system, together

with his statement that he could return a death verdict only after a “fair trial,” the

prosecutor could reasonably have concluded that M.H. would be an unfavorable

juror from the prosecution‟s standpoint.

Defendant contends a comparative analysis of the questionnaire responses

given by Juror No. 7 demonstrates that the prosecutor‟s stated reasons for

excusing M.H. were mere pretexts for racial discrimination, in that Juror No. 7, a

White juror whom the prosecutor did not challenge, gave responses similar to

those given by M.H. We grant defendant‟s request that we conduct such an

analysis, even though he failed to make the corresponding argument below. (See


9

The prosecutor asserted he had excused other prospective jurors who

expressed their views on the death penalty in similar terms. Defendant claims the
assertion was false. As the Attorney General observes, however, the prosecutor in
fact challenged for cause two prospective jurors who said they could not impose
the death penalty.

17

People v. Lenix, supra, 44 Cal.4th at p. 607.) We disagree, however, that it

dictates a finding of Batson/Wheeler error in this case.

Defendant first contends that both M.H. and Juror No. 7 expressed similar

views of the O.J. Simpson trial, which the prosecutor cited in M.H.‟s case as a

basis for excusal. Not so. In response to question No. 65.b (“How, if at all, did

the O.J. Simpson trial affect your view of the courts and the criminal justice

system?”), M.H. stated the Simpson trial “restored” his “faith.” Juror No. 7‟s

answer to the same question was: “It raised my concerns on jury selection and

impact of televising a trial.” In response to question No. 64 (“During the past

year, have you followed newspaper or television reports for any particular criminal

case?” and “What opinions, if any, did you form about the criminal justice system

as a result?”), Juror No. 7 reported following the O.J. Simpson and “Terry

McVie”10 cases and observed, “The court system still works.” In response to the

same question, M.H. denied following media reports for any particular court case.

Plainly, Juror No. 7‟s response to the question specifically dealing with the

Simpson case was dissimilar to M.H.‟s, and his response to the more general

question about recent criminal cases did not necessarily constitute an endorsement

of the result in the Simpson case.

Defendant correctly points out that, in their questionnaires, both M.H. and

Juror No. 7 “disagreed strongly” that if the prosecution brings someone to trial,

that person is probably guilty, and that Juror No. 7 agreed even more strongly than


10

Sic, evidently Timothy McVeigh, who, at the time of jury selection in this

case, had recently been tried and sentenced to death for the bombing of the Alfred
P. Murrah Federal Building in Oklahoma City, which caused the deaths of 168
people, including 19 young children. McVeigh‟s coconspirator was Terry
Nichols. (See U.S. v. McVeigh (10th Cir. 1998) 153 F.3d 1166, 1176-1177.)

18

M.H. with the proposition that it is better for society to let some guilty people go

free than risk convicting an innocent person. As defendant further observes, M.H.

and Juror No. 7 shared certain personal characteristics, including academic

background, occupation, place of residence, and a preference for science fiction

movies. But the two men differed significantly in age and life experience: Juror

No. 7 was 51 years old, had been in the military, had a spouse who was employed,

and had raised a child to adulthood. He was a supervisor at his place of

employment, with the power to hire and fire. M.H. was 34 years old, with a

spouse who was not employed and an infant child; he had no supervisory

experience or responsibility. The prosecutor reasonably could have taken such life

experiences into account in selecting jurors. Juror No. 7‟s daughter had worked in

a fast-food restaurant (such as the scenes of the crimes here) and another relative

had been the victim of a crime, which might have tended to make him more

sympathetic to the prosecution in this case; M.H. had no relatives with fast-food

experience and knew no one who had been victimized.

With respect to views concerning the death penalty, which evidently was a

topic of primary importance to the prosecutor, the questionnaires of the two men

revealed differences the prosecutor could have found significant: M.H. expressed

uncertainty whether the death penalty is imposed too often and whether it is

imposed unfairly against African-Americans or any minority group; Juror No. 7

believed the death penalty is imposed neither too seldom nor too often, but “About

right,” and expressed no uncertainty whether it is imposed unfairly against

minorities.

In sum, significant differences in life experiences and attitudes concerning

the death penalty existed between M.H. and Juror No. 7, differences the prosecutor

could reasonably have taken into account in deciding to peremptorily challenge

M.H. and not to challenge Juror No. 7. Defendant‟s argument therefore fails.

19

b. Excusals based on views concerning the death penalty

Defendant contends the trial court erred by excusing Prospective Juror O.A.

due to her expressed views concerning the death penalty, thereby violating his

right to an impartial jury under the Sixth and Fourteenth Amendments to the

United States Constitution. “The high court has established the legal standard for

excusing jurors due to their views on the death penalty, first in Witherspoon v.

Illinois (1968) 391 U.S. 510 [20 L.Ed.2d 776, 88 S.Ct. 1770], and then in

Wainwright v. Witt[, supra,] 469 U.S. 412 [83 L.Ed.2d 841, 105 S.Ct. 844]. In

Witt, the Supreme Court explained that a prospective juror may be excused in a

capital case if „the juror‟s views would “prevent or substantially impair the

performance of his duties as a juror in accordance with his instructions and his

oath.” ‟ (Id. at p. 424.) We apply the same standard under the state Constitution.”

(People v. Gray (2005) 37 Cal.4th 168, 192.)

“ „There is no requirement that a prospective juror‟s bias against the death

penalty be proven with unmistakable clarity. [Citations.] Rather, it is sufficient

that the trial judge is left with the definite impression that a prospective juror

would be unable to faithfully and impartially apply the law in the case before the

juror.‟ [Citation.] „Assessing the qualifications of jurors challenged for cause is a

matter falling within the broad discretion of the trial court. [Citation.] The trial

court must determine whether the prospective juror will be “unable to faithfully

and impartially apply the law in the case.” [Citation.] A juror will often give

conflicting or confusing answers regarding his or her impartiality or capacity to

serve, and the trial court must weigh the juror‟s responses in deciding whether to

remove the juror for cause. The trial court‟s resolution of these factual matters is

binding on the appellate court if supported by substantial evidence. [Citation.]

“[W]here equivocal or conflicting responses are elicited regarding a prospective

juror‟s ability to impose the death penalty, the trial court‟s determination as to his

20

true state of mind is binding on an appellate court.” ‟ ” (People v. Gray, supra, 37

Cal.4th at pp. 192-193.)

In her questionnaire, when she was asked to describe her opinions about the

death penalty, O.A. wrote: “I could not agree on a death penalty. I could agree

with life in prison.” She indicated she felt the death penalty was imposed “Too

often,” that it served no purpose, and there was no type of case in which she

thought it ought to be imposed. She indicated she would automatically refuse to

vote for the death penalty and that she would automatically always vote for life in

prison without the possibility of parole.

Her answers during individual voir dire were less certain than those

expressed in her questionnaire, but nonetheless expressed at least a distinct

predisposition to favor life over death. In response to the trial court‟s question

whether or not she could consider both penalties, she responded: “No, I don‟t

think that I can.” When the trial court immediately followed this answer by

inquiring if she was predisposed to one penalty, O.A. stated: “Yes. [¶] . . .

[¶] Life imprisonment.”

In response to further questioning by the trial court, however, O.A.

indicated she thought she “would probably follow the court‟s instructions.” In

response to the trial court‟s question whether, after she had heard all the evidence,

arguments, and court‟s instructions she concluded death was the appropriate

penalty, she would vote for death, she stated: “Probably. I think so, yes.” O.A.

then explained, “I think [the] reason I am hedging more is because I feel that—

I would have a difficult time doing it, but I would follow the court‟s instruction.”

After the trial court again asked “if you felt that [death] would be the appropriate

penalty, despite it being difficult and despite maybe you not liking it, you would

vote [for] the death penalty, is that true, ma‟am?” O.A. responded, “Yes. [¶] . . .

[¶] That‟s true.”

21

After a few additional questions from the prosecutor and the trial court,

O.A. explained that, based on her personal beliefs, which derived in part from

religion, she believed the death penalty was “not right” and that therefore she

could not make the decision to impose death. Defense counsel did not ask O.A.

any questions. The prosecutor challenged O.A. for cause, defense counsel

submitted the matter without argument, and the trial court excused her. In light of

O.A.‟s answers to the jury questionnaire, as well as her equivocal answers on voir

dire, we defer to the trial court‟s implicit determination regarding her state of mind

and conclude substantial evidence supports the court‟s ruling the juror‟s views on

the death penalty would “ „prevent or substantially impair the performance of [her]

duties as a juror in accordance with [her] instructions and [her] oath.‟ ”

(Wainwright v. Witt, supra, 469 U.S. at p. 424; People v. Wilson (2008) 44 Cal.4th

758, 779.)

Defendant next contends the trial court applied disparate standards in

evaluating “pro-life” Prospective Juror O.A. and “pro-death” Prospective Juror

B.S., claiming B.S. “testified unequivocally that he believed the death penalty

should be „automatically‟ imposed on anyone who intentionally killed another

person.” This unequal treatment, defendant claims, violated his rights to a fair and

impartial jury and to due process.

Defendant‟s characterization of B.S.‟s view on automatic imposition of the

death penalty is misleading. B.S. indicated that despite his religious belief in “an

eye for an eye,” he could set aside that belief and follow the law and the court‟s

instructions. O.A. did not make such a clear statement. Further, unlike O.A., B.S.

indicated without equivocation that he could consider and impose both penalties.

In light of the clear differences in the expressed views of these two prospective

jurors on their ability to impose the death penalty, we reject defendant‟s claim that

the trial court applied disparate standards in evaluating their answers.

22

2. Denial of Severance Motion

On July 7, 1997, shortly before trial began, defendant moved to sever the

Watt Avenue charges from the Florin Road charges. Although he conceded all of

the alleged offenses were of the same class, and hence permissibly joined under

section 954, he argued the evidence of each set of offenses was inadmissible in the

trial of the other, and their joinder would prejudice him while effecting no

substantial judicial economy. The trial court denied the motion without comment.

On appeal, defendant contends the trial court‟s ruling constituted error under state

law and denied him due process of law. For the reasons discussed below, we

conclude the trial court did not abuse its discretion or otherwise violate

defendant‟s rights by denying the severance motion.

Section 954 provides in relevant part: “An accusatory pleading may charge

two or more different offenses connected together in their commission, . . . or two

or more different offenses of the same class of crimes or offenses, under separate

counts, . . . provided, that the court in which a case is triable, in the interests of

justice and for good cause shown, may in its discretion order that the different

offenses or counts set forth in the accusatory pleading be tried separately or

divided into two or more groups and each of said groups tried separately.”

Because the Watt Avenue and Florin Road charges alleged offenses of the same

class, “the statutory requirements for joinder were satisfied,” and defendant “can

predicate error in denying the motion only on a clear showing of potential

prejudice. [Citation.] We review the trial court‟s ruling on the severance motion

for abuse of discretion.” (People v. Kraft (2000) 23 Cal.4th 978, 1030; see People

v. Soper (2009) 45 Cal.4th 759, 773-774.)

“ „ “ „The burden is on the party seeking severance to clearly establish that

there is a substantial danger of prejudice requiring that the charges be separately

tried.‟ [Citation.] [¶] „The determination of prejudice is necessarily dependent on

23

the particular circumstances of each individual case, but certain criteria have

emerged to provide guidance in ruling upon and reviewing a motion to sever trial.‟

[Citation.] Refusal to sever may be an abuse of discretion where: (1) evidence on

the crimes to be jointly tried would not be cross-admissible in separate trials;

(2) certain of the charges are unusually likely to inflame the jury against the

defendant; (3) a „weak‟ case has been joined with a „strong‟ case, or with another

„weak‟ case, so that the „spillover‟ effect of aggregate evidence on several charges

might well alter the outcome of some or all of the charges; and (4) any one of the

charges carries the death penalty or joinder of them turns the matter into a capital

case. [Citations.]” ‟ ” (People v. Kraft, supra, 23 Cal.4th at p. 1030, quoting

People v. Bradford (1997) 15 Cal.4th 1229, 1315; see also People v. Soper, supra,

45 Cal.4th at pp. 774-775.)

“Our determination whether defendant was prejudiced by joinder requires

us first to examine whether evidence on each of the joined charges would have

been admissible, under Evidence Code section 1101, in separate trials on the

others. If so, any inference of prejudice is dispelled. (People v. Bradford, supra,

15 Cal.4th at pp. 1315-1316.) Conversely, however, the absence of cross-

admissibility does not, by itself, demonstrate prejudice. (Id. at p. 1316.)” (People

v. Kraft, supra, 23 Cal.4th at p. 1030.)

Defendant contends none of the evidence of each set of offenses would

properly have been admitted in a separate trial of the other set of offenses.

Evidence Code section 1101, subdivision (a), he notes, generally prohibits the

admission of evidence of a person‟s conduct on a specific occasion to prove he

acted in character on another occasion. Although subdivision (b) of that statute

makes evidence of a prior bad act admissible if relevant to prove a fact in issue

other than character (such as his motive, identity, opportunity, intent, plan, or

24

knowledge), defendant contends the evidence in this case was not admissible

under subdivision (b).

We have said that “[i]n determining whether evidence of uncharged

misconduct is relevant to demonstrate a common design or plan, it is useful to

distinguish the nature and degree of similarity (between uncharged misconduct

and the charged offense) required in order to establish a common design or plan,

from the degree of similarity necessary to prove intent or identity. [¶] The least

degree of similarity (between the uncharged act and the charged offense) is

required in order to prove intent. [Citation.] „[T]he recurrence of a similar result

. . . tends (increasingly with each instance) to negative accident or inadvertence or

self-defense or good faith or other innocent mental state, and tends to establish . . .

the presence of the normal, i.e., criminal, intent accompanying such an act . . . .‟

[Citation.] In order to be admissible to prove intent, the uncharged misconduct

must be sufficiently similar to support the inference that the defendant „ “probably

harbor[ed] the same intent in each instance.” [Citations.]‟ [Citation.] [¶] A

greater degree of similarity is required in order to prove the existence of a

common design or plan. . . . [¶] To establish the existence of a common design or

plan, the common features must indicate the existence of a plan rather than a series

of similar spontaneous acts, but the plan thus revealed need not be distinctive or

unusual. . . . [¶] The greatest degree of similarity is required for evidence of

uncharged misconduct to be relevant to prove identity. For identity to be

established, the uncharged misconduct and the charged offense must share

common features that are sufficiently distinctive so as to support the inference that

the same person committed both acts. [Citation.] „The pattern and characteristics

of the crimes must be so unusual and distinctive as to be like a signature.‟ ”

(People v. Ewoldt (1994) 7 Cal.4th 380, 402-403, fn. omitted.)

25

We have also said “ „[o]ther-crimes evidence is admissible to prove the

defendant‟s identity as the perpetrator of another alleged offense on the basis of

similarity “when the marks common to the charged and uncharged offenses,

considered singly or in combination, logically operate to set the charged and

uncharged offenses apart from other crimes of the same general variety and, in so

doing, tend to suggest that the perpetrator of the uncharged offenses was the

perpetrator of the charged offenses.” [Citation.]‟ [Citation.] The inference of

identity, moreover, need not depend on one or more unique or nearly unique

common features; features of substantial but lesser distinctiveness may yield a

distinctive combination when considered together.” (People v. Miller (1990) 50

Cal.3d 954, 987.)11

Defendant relies on certain language in Ewoldt in arguing that the evidence

of the Watt Avenue and Florin Road offenses was not cross-admissible. We said

in that case: “[I]n most prosecutions for crimes such as burglary and robbery, it is

beyond dispute that the charged offense was committed by someone; the primary

issue to be determined is whether the defendant was the perpetrator of that crime.

Thus, in such circumstances, evidence that the defendant committed uncharged

offenses that were sufficiently similar to the charged offense to demonstrate a

common design or plan (but not sufficiently distinctive to establish identity)

ordinarily would be inadmissible. Although such evidence is relevant to

demonstrate that, assuming the defendant was present at the scene of the crime,

the defendant engaged in the conduct alleged to constitute the charged offense, if it


11

Defendant contends People v. Miller, supra, 50 Cal.3d 954, was superseded

on this point by People v. Ewoldt, supra, 7 Cal.4th at page 403. Not so. (See ibid.
[citing Miller with approval]; People v. Lynch (2010) 50 Cal.4th 693, 736-737
[same].)

26

is beyond dispute that the alleged crime occurred, such evidence would be merely

cumulative and the prejudicial effect of the evidence of uncharged acts would

outweigh its probative value.” (People v. Ewoldt, supra, 7 Cal.4th at p. 406.)

Defendant reasons the identity of the perpetrator of the Watt Avenue and Florin

Road robberies was the primary issue at trial, and argues the evidence here lacks

common features of sufficient distinctiveness to establish his identity as the

robber.

We disagree the similarities in the crimes were insufficient to establish

identity. Although there may be nothing particularly distinctive about an armed

robbery of a McDonald‟s restaurant at closing time, per se, in this case certain

common features of the Watt Avenue and Florin Road robberies before the trial

court at the time it made its ruling sufficed to demonstrate defendant‟s identity as

the perpetrator. These included: (1) defendant‟s contemporaneous or former

employment at both restaurants and his consequent knowledge of their layout and

operations; (2) the involvement in both robberies of defendant‟s friend, Proby,

who also had worked at one of the restaurants; (3) the perpetrator‟s use, in both

robberies, of a disguised and unnaturally gruff or gravelly voice; (4) the

perpetrators‟ use of scarves to cover the lower portion of their faces in both

robberies; (5) the circumstance that defendant was seen with Proby before and

after the Florin Road robbery, and after the Watt Avenue robbery; (6) the

discovery of items taken in both robberies at the home of Proby‟s girlfriend, Vera

Penilton; (7) the circumstance that the same type of ammunition used to kill

Ronald Lee in the Florin Road robbery was found in Stanly Zaharko‟s truck,

which had been taken in the Watt Avenue robbery; and (8) defendant‟s admissions

to witnesses regarding his involvement in both robberies. In the aggregate, these

common features support a reasonable inference that defendant committed both

sets of offenses. (See People v. Hovarter (2008) 44 Cal.4th 983, 1004.) The

27

evidence of each robbery therefore would have been cross-admissible in a separate

trial of the other, and defendant cannot demonstrate prejudice from the joinder of

the two sets of offenses. The trial court did not abuse its discretion in denying

defendant‟s severance motion, and joint trial of the Watt Avenue and Florin Road

offenses did not result in fundamental unfairness and did not deprive defendant of

due process.

Defendant further contends that, even assuming some evidence of each

robbery would have been cross-admissible on the question of identity, the

evidence should have been excluded under Evidence Code section 352 and the

federal due process guarantee because evidence of the murder of Ronald Lee at the

Florin Road restaurant was irrelevant to the Watt Avenue robbery counts. This

argument, in essence, merely reframes the contention that the trial court abused its

discretion in denying defendant‟s severance motion and lacks merit for the reasons

discussed above.

3. Evidentiary Issues

a. Exclusion of third party culpability evidence

Defendant contends the trial court violated his rights under the Fifth, Sixth,

and Fourteenth Amendments to the United States Constitution and also erred

under state law by improperly forcing him to choose between competing

constitutional rights in ruling on the admissibility of proffered evidence of third

party culpability.

The proffered evidence fell into two categories. As to the first, defendant

moved for admission of a portion of an out-of-court statement by Proby to police

concerning the Florin Road crimes. In the statement, while Proby admitted that he

and defendant entered the restaurant and committed the robbery and that defendant

shot Ronald Lee, Proby also said a man named “Blackie” supplied one of the guns

28

they used and served as the getaway driver. The trial court ruled that if the

defense sought to introduce the portion of the statement describing Blackie‟s

involvement, the entirety of the statement, including the portion in which Proby

stated he and defendant entered the restaurant and defendant was the shooter,

would be admitted. Given the ruling, defendant declined to introduce Proby‟s

statement and no portion of it was admitted at trial.

The second category of evidence concerned Anthony Edwards, Vera

Penilton‟s cousin. The defense sought to introduce Edwards‟s prior acts of

violence, including his convictions for assault with a firearm and spousal abuse.

The prosecutor argued that the absence of any direct or circumstantial evidence

linking Edwards to the charged crimes rendered the proffered evidence

inadmissible. The trial court agreed, denying the defense motion “without

prejudice” to the presentation of additional evidence of Edwards‟s involvement in

the crimes. Defendant did not renew his motion, and no evidence of Edwards‟s

prior acts of violence was admitted at trial.

Defendant challenges both rulings on appeal. As will appear, we conclude

the trial court‟s rulings were consistent with applicable evidentiary and

constitutional principles.

i. Proceedings in the trial court

Before trial, the prosecutor filed a motion to exclude third party culpability

evidence. At a hearing on the issue, the prosecutor objected to the admission into

evidence of any references to “Blackie.” The court made a preliminary order

precluding the defense from bringing up evidence of third party culpability “unless

he has a witness that can prove that.”

Thereafter, defendant filed a motion to admit third party culpability

evidence, supported by an offer of proof. Of particular significance, he offered to

29

prove that in a statement made on October 3, 1994, Proby told law enforcement

officers a third person, “Blackie,” was involved in the Florin Road robbery murder

and that Blackie, a friend of Proby‟s from the neighborhood whose true identity

Vera Penilton would know, supplied a sawed-off rifle and drove the getaway car.

Proby also allegedly gave a description of Blackie to police that more closely

matched the description of the Florin Road shooter given by two of the percipient

witnesses than it did defendant, in that Proby described Blackie as a Black male,

thin and dark-complected, five feet nine inches to five feet 10 inches tall, whereas

defendant is six feet three inches tall. Defendant further offered to prove that

Penilton told a defense investigator she had a cousin named Anthony Renard

Edwards, nicknamed “Black Black” due to his dark complexion, and that Edwards

would sometimes go places with Proby in Proby‟s car and had done so several

times during the month of the Florin Road offenses. Finally, defendant offered to

prove that Edwards, who had been released on parole in Sacramento in July 1994,

had an extensive record of assaultive behavior and use of weapons.

The prosecutor argued that if the portion of Proby‟s statement relating to

Blackie‟s involvement were admitted, then the portion describing defendant‟s role

in the crimes likewise should be admitted. The prosecutor explained that

surveillance video footage in the Florin Road robbery murder showed only two

robbers, and eyewitnesses spoke of seeing only two robbers; thus, he implied, the

jury would be misled if it heard only the part of Proby‟s statement that described

his and Blackie‟s roles in the offense. The prosecutor also opposed the admission

of evidence of Edwards‟s criminal history, arguing that its dissimilarity to the

30

Florin Road offenses12 and the absence of any direct or circumstantial evidence

linking Edwards to those offenses rendered it irrelevant, and that it constituted

improper character evidence under Evidence Code section 1101, subdivision (a).

The trial court denied defendant‟s motions to limit the use of Proby‟s

statement and to permit evidence of Edwards‟s violent conduct. Proby asserted

his privilege against self-incrimination and did not testify at defendant‟s trial, and

no part of his statement was introduced into evidence.

ii. Analysis

In People v. Hall (1986) 41 Cal.3d 826, this court articulated the standard

California courts apply in determining the admissibility of third party culpability

evidence. We said: “To be admissible, the third-party evidence need not show

„substantial proof of a probability‟ that the third person committed the act; it need

only be capable of raising a reasonable doubt of defendant‟s guilt. At the same

time, we do not require that any evidence, however remote, must be admitted to

show a third party‟s possible culpability. As this court observed in [People v.]

Mendez [(1924) 193 Cal. 39, 51], evidence of mere motive or opportunity to

commit the crime in another person, without more, will not suffice to raise a

reasonable doubt about a defendant‟s guilt: there must be direct or circumstantial

evidence linking the third person to the actual perpetration of the crime.” (Id. at

p. 833.)


12

The prosecutor represented that Edwards‟s rap sheet reflected no

convictions for robbery or for using a firearm in any incident. Although Edwards
had suffered convictions for assault with a deadly weapon (one 1986
misdemeanor, two 1989 misdemeanors, and a 1991 felony) and for spousal abuse,
the prosecutor argued nothing suggested that any of Edwards‟s past offenses
shared any similarities with the crimes charged in this case.

31

Nothing in Proby‟s statement, considered as a whole, tended to raise a

reasonable doubt about defendant‟s guilt. Proby told the police that he and

defendant went into the Florin Road McDonald‟s to commit robbery and that

defendant shot the victim. The circumstance that, according to Proby‟s statement,

another person also played a role in the crime by supplying a gun and waiting for

defendant and Proby in the getaway car in no way negated or diminished

defendant‟s culpability as the actual shooter.

We may properly look at Proby‟s statement as a whole because, as the trial

court concluded, the prosecution was entitled under Evidence Code section 356 to

introduce the portion of the statement describing defendant‟s participation in the

offense if the defense introduced the portion describing Blackie‟s participation.13

“The purpose of [Evidence Code section 356] is to prevent the use of selected

aspects of a conversation, act, declaration, or writing, so as to create a misleading

impression on the subjects addressed.” (People v. Arias (1996) 13 Cal.4th 92,

156.) Here, in view of the eyewitness and surveillance footage evidence

suggesting two men committed the Florin Road robbery, for defendant to

introduce the portion of Proby‟s statement mentioning only Proby and Blackie

would have conveyed the misleading impression that only Proby and Blackie

participated in the robbery, when Proby actually told the detective that defendant

too participated. This case exemplifies the policy underlying the code section.

Defendant wanted to rely on a part of Proby‟s statement to imply that Blackie was


13

Evidence Code section 356 provides: “Where part of an act, declaration,

conversation, or writing is given in evidence by one party, the whole on the same
subject may be inquired into by an adverse party; . . . and when a detached act,
declaration, conversation, or writing is given in evidence, any other act,
declaration, conversation, or writing which is necessary to make it understood may
also be given in evidence.”

32

the shooter, which was contrary to what Proby actually said elsewhere in his

statement. The rule of completeness exists to prevent such a misuse of evidence.

The trial court therefore correctly concluded that Evidence Code section 356

permitted the prosecution to introduce other portions of Proby‟s statement making

that fact clear.

Application of Evidence Code section 356 hinges on the requirement that

the two portions of a statement be “on the same subject.” As he did at trial,

defendant contends that section 356 is inapplicable because the portion of Proby‟s

statement addressing Blackie‟s role in the Florin Road crimes constituted a

different subject than defendant‟s own role in those same crimes. We are

unpersuaded. “ „In applying Evidence Code section 356 the courts do not draw

narrow lines around the exact subject of inquiry.‟ ” (People v. Zapien (1993) 4

Cal.4th 929, 959.) As the Attorney General argues, both portions of the statement

were part of Proby‟s description of what happened during the Florin Road robbery

murder, including who was involved in the offenses and what each person‟s role

was that night, and the introduction of one portion without the other would have

left a misleading impression in jurors‟ minds.

Nor, as defendant argues, would the confrontation clause of the Sixth

Amendment to the United States Constitution have precluded the admission, under

the hearsay exception embodied in Evidence Code section 356, of the portion of

Proby‟s statement that implicated defendant. In interpreting the requirements of

the confrontation clause, the United States Supreme Court in Crawford recognized

the continuing validity of exceptions, like the rule of forfeiture by wrongdoing,

that derive from equitable considerations rather than an improper judicial

determination of reliability. (Crawford v. Washington (2004) 541 U.S. 36, 62.)

“The Roberts test [Ohio v. Roberts (1980) 448 U.S. 56, 66, overruled in Crawford]

allows a jury to hear evidence, untested by the adversary process, based on a mere

33

judicial determination of reliability. It thus replaces the constitutionally prescribed

method of assessing reliability with a wholly foreign one. In this respect, it is very

different from exceptions to the Confrontation Clause that make no claim to be a

surrogate means of assessing reliability. For example, the rule of forfeiture by

wrongdoing (which we accept) extinguishes confrontation claims on essentially

equitable grounds; it does not purport to be an alternative means of determining

reliability.” (Crawford, at p. 62.) We conclude the rule of completeness also falls

within this category.

Other courts have reached the same conclusion. In People v. Parrish

(2007) 152 Cal.App.4th 263, for example, the Court of Appeal rejected a similar

confrontation clause argument in upholding, under Evidence Code section 356, the

admission of certain portions of an accomplice‟s out-of-court statement to police

implicating the defendant after the defendant introduced other portions of the same

statement. (Parrish, at pp. 271-276.) The Parrish court reasoned: “Crawford did

not renounce all exceptions to the confrontation clause, only those that replace the

constitutionally prescribed method of assessing reliability—cross-examination—

with a judicial determination of reliability . . . .” (Id. at p. 272.) Parrish

“conclud[ed], by analogy to the rule of forfeiture by wrongdoing, that statements

otherwise admissible under [Evidence Code] section 356 are generally not made

inadmissible by Crawford. This is because, like forfeiture by wrongdoing, section

356 is not an exception to the hearsay rule that purports to assess the reliability of

testimony. The statute is founded on the equitable notion that a party who elects

to introduce a part of a conversation is precluded from objecting on confrontation

clause grounds to introduction by the opposing party of other parts of the

conversation which are necessary to make the entirety of the conversation

understood. . . . As Crawford forbids only the admissibility of evidence under

statutes purporting to substitute another method for [the] confrontation clause test

34

of reliability, evidence admissible under section 356 does not offend Crawford.”

(Parrish, at pp. 272-273; see also State v. Prasertphong (2005) 210 Ariz. 496 [114

P.3d 828, 834]; State v. Selalla (2008) 2008 S.D. 3 [744 N.W.2d 802, 818] [a

defendant may not seek to use the hearsay exception for declarations against penal

interest as a shield, to introduce exculpatory parts of an unavailable declarant‟s

statement, while simultaneously using the confrontation clause as a sword to

exclude the parts that inculpate the defendant]; U.S. v. Moussaoui (4th Cir. 2004)
382 F.3d 453, 481-482.)

We find unavailing defendant‟s efforts to analogize this case to the Bruton-

Richardson-Gray line of cases.14 Here, unlike in those cases, the prosecution did

not initially seek to introduce the portion of the statement implicating defendant,

but only sought to use it to correct what would have been an inevitably misleading

implication that Proby and Blackie, not defendant, were the two Florin Road

robbers, once defendant announced his intention to introduce the “Blackie”

portion of the statement. Nothing in the Bruton-Richardson-Gray line of cases

speaks to this situation.


14

See Bruton v. United States (1968) 391 U.S. 123, 135-136 (a nontestifying

codefendant‟s extrajudicial statement incriminating a defendant, which when
admitted against the codefendant is inadmissible hearsay as to the defendant, is so
prejudicial that limiting instructions are deemed ineffective); Richardson v. Marsh
(1987) 481 U.S. 200, 211 (the admission of a nontestifying codefendant‟s
confession against the codefendant does not violate the defendant‟s confrontation
right if the confession is redacted to eliminate not only the defendant‟s name but
any reference to his existence); Gray v. Maryland (1998) 523 U.S. 185, 188, 192
(redactions that simply replace a name with a blank space, a word such as
“deleted,” a symbol, or other obvious indication of alteration leave statements that
so closely resemble the unredacted statements prohibited by Bruton as to fall
within the same class).

35

Defendant further asserts that, even if the portions of Proby‟s statement

incriminating him were admissible under Evidence Code section 356, they

nevertheless should have been excluded under Evidence Code section 352 because

it would be an abuse of the trial court‟s discretion to admit out-of-court statements

incriminating a criminal defendant in derogation of the basic right of cross-

examination. Defendant did not make this argument below, but even assuming he

had preserved it for appeal, it lacks merit. As we have explained, the trial court‟s

ruling did not abridge defendant‟s confrontation right, and fairness is served, not

thwarted, by the admission of portions of a statement needed to make other

portions not misleading. Defendant‟s argument, moreover, misapprehends the

scope of the trial court‟s authority under Evidence Code section 352. That

provision permits the exclusion of relevant evidence in certain limited

circumstances; it does not confer plenary authority to exclude the parts of a

relevant statement that are inconvenient for the defense.

Defendant also contends that the portion of Proby‟s statement incriminating

Blackie was admissible as a matter of federal due process by analogy to Chambers

v. Mississippi (1973) 410 U.S. 284. In that case, the defendant sought to present

evidence that a third party, McDonald, had confessed to several other persons that

he had committed the crime of which the defendant was accused. When the

defendant called McDonald as a witness, he repudiated his earlier confession, and

Mississippi‟s rules of evidence precluded the defendant from cross-examining him

with the confession or presenting witnesses who would have discredited

McDonald‟s repudiation and demonstrated his complicity in the crime. (Id. at

pp. 291-294.) The United States Supreme Court held that due process requires

state courts to admit reliable evidence that is critical to the defense in criminal

cases. (Id. at p. 302.) Here, of course, assuming Proby‟s statement concerning

Blackie was reliable, defendant was not precluded from presenting it. Rather,

36

defendant elected not to introduce it in the face of the trial court‟s ruling, which

we have concluded was proper, that if he did so, the prosecution would be entitled

to introduce other portions of the statement that incriminated defendant.

Lastly, defendant argues the trial court erred in excluding evidence of

Anthony Edwards‟s convictions and prior assaultive conduct. Defendant

acknowledges this court‟s holding, in People v. Lewis (2001) 26 Cal.4th 334, 373,

that evidence of an individual‟s prior acts of violence, without more, shows only

criminal propensity and is inadmissible to establish third party culpability. (See

Evid. Code, § 1101, subd. (a) [character evidence is inadmissible to prove a

person‟s conduct on a specific occasion].) Defendant argues, however, that the

evidence of Edwards‟s convictions and prior acts of violence should be taken in

the context of his offer of proof and that the evidence demonstrates more than

mere criminal propensity. But no evidence of substance in this record connects

Edwards to the charged offenses. The rule in Lewis therefore applies, and

defendant‟s contention must be rejected.

b. Admission of statement attributed to defendant by

prosecution witness Sonya Williams

Defendant contends the trial court abused its discretion under Evidence

Code section 352 and violated his rights under the United States Constitution by

admitting, over a defense objection, excerpts from a videotape containing

statements that prosecution witness Sonya Williams attributed to defendant

concerning his role in the Watt Avenue robbery.

The issue arose in the following context: Williams (who, the trial court

observed, did not “appear to be a particularly friendly witness [for] the People”)

testified that defendant had informed her, in advance, of his plan to rob the Watt

Avenue McDonald‟s where he worked. After the robbery, Williams testified,

defendant told her he had done what he previously said he was going to do

37

(alluding to the robbery), showed her a gun and cash, and thereafter said nothing

further about the robbery or his role in it. To rebut the assertion that defendant

had said nothing more about the robbery, the prosecutor sought to play excerpts of

a tape-recorded interview of Williams by Detectives Minter and Cabrera in which

Williams described other details of the robbery that defendant had recounted to

her. Among those excerpts, the prosecutor sought to play the portion of the

interview in which Williams told the detectives how she had asked defendant

(about the people he had forced into the freezer), “What if they would have died?”

and defendant had responded, “They just would have died.” Defense counsel

objected on the grounds of improper impeachment, lack of relevance, and

Evidence Code section 352. After a hearing outside the presence of the jury, the

trial court overruled the objection, and the excerpt was played for the jury.

On appeal, defendant contends the trial court abused its discretion in

admitting the interview excerpts. He argues the evidence had no probative value

for impeachment purposes because Williams had not testified to anything she had

discussed with defendant concerning leaving people in the freezer. He also

asserts, contrary to the prosecutor‟s argument at trial, that the evidence was

irrelevant to show defendant‟s intent in falsely imprisoning the victims, because

only the perpetrator‟s identity, not his intent, was at issue. Finally, he contends,

the evidence tended uniquely to evoke an emotional bias against him and thus was

unduly prejudicial under Evidence Code section 352.

38

We agree with defendant that he has preserved the issue, including its due

process aspects, for review.15 We disagree, however, that the trial court abused its

discretion in admitting the evidence.

Contrary to defendant‟s argument, the evidence possessed probative value

as a means of impeaching Williams‟s repeated assertions that defendant failed to

reveal to her any of the details of the robbery. In turn, the presentation of

defendant‟s statements to Williams regarding the details of the crime bolstered the

other evidence establishing his identity as the robber. The evidence also was

relevant to the false imprisonment charge because it showed defendant‟s

knowledge that his actions had violated the victims‟ liberty. (§§ 236 [false

imprisonment is the unlawful violation of the personal liberty of another], 237,

subd. (a) [false imprisonment that is effected by violence, menace, fraud, or deceit

is a felony].) Even if defendant focused his efforts at trial on disputing his identity

as the perpetrator, the prosecution was required to prove its case, including the

intent elements of the charged crimes. (People v. Moon (2005) 37 Cal.4th 1, 28.)

The probative value of the evidence thus was substantial, and the trial court acted

within its discretion in concluding such value outweighed the possibility of undue

prejudice stemming from admission of the statement. In any event, even were we

to conclude otherwise, reversal would not be required in view of the

overwhelming evidence of defendant‟s guilt of the Watt Avenue crimes. Given

the testimony of Stanly Zaharko, Michael Baumann, and Leticia Aguilar

describing how defendant had forced them at gunpoint to enter the freezer and


15

Before trial, defendant sought, the prosecution did not oppose, and the trial

court made an order that “all defense counsel‟s objections at trial be deemed
objections under the Constitutions of both the State of California and the United
States.”

39

locked them inside, the admission of defendant‟s callous statement to Sonya

Williams could not, by any standard, have affected the verdict.16

c. Admission of a letter from defendant to prosecution

witness Sean Gilbert

Defendant contends the trial court abused its discretion in admitting a letter

he wrote to prosecution witness Sean Gilbert17 while Gilbert was incarcerated in

the Sacramento County jail on charges unrelated to those at issue in this case. The

letter accused Gilbert of making false statements that tended to inculpate

defendant and included several passages in which defendant directly or impliedly

threatened Gilbert with violence as a result. Gilbert considered the letter a threat

and turned it over to an officer, who gave it to the prosecution. Defense counsel

unsuccessfully objected to the admission of the letter under Evidence Code section

352 and because, in his view, the letter did not contain admissions or threats and,

hence, lacked relevance. Defendant here renews his challenge to the admission of

the letter under state law and on federal due process grounds.18

Defendant implicitly acknowledges the general rule that evidence of threats

is admissible as showing consciousness of guilt, but in essence claims that his


16

Defendant argues the admission of the interview excerpts prejudiced him at

the penalty phase as well as the guilt phase. Given the totality of the evidence in
this case, we disagree.

17

Gilbert worked with defendant at the Watt Avenue McDonald‟s. He

testified that, in separate conversations a week or two before the robbery of that
restaurant, defendant spoke about how tranquilizer guns would not kill but only
knock out a victim, and told Gilbert he possessed a gun (a rifle or a shotgun).
Gilbert also testified he saw a .25-caliber semiautomatic handgun at Deon Proby‟s
house. The day after the robbery, Gilbert testified, defendant came to work with a
new Walkman and wearing a new Starter jacket.

18

See ante, at page 39, footnote 15.

40

letter falls outside the rule because, in accusing Gilbert of lying, it reflects

consciousness not of guilt, but of innocence. As decisions of this state have long

recognized (e.g., People v. Chin Hane (1895) 108 Cal. 597, 603; People v. Rosoto

(1962) 58 Cal.2d 304, 350; People v. Pinholster (1992) 1 Cal.4th 865, 945; People

v. Slocum (1975) 52 Cal.App.3d 867, 887), a threat made by a defendant against a

prospective prosecution witness, with the apparent intention of intimidating the

witness, is properly admitted because an accused‟s efforts to suppress evidence

against himself indicate a consciousness of guilt. (Slocum, at p. 887.) This

principle fully applies in this case, regardless of the circumstance that the letter

accused Gilbert of lying instead of acknowledging the veracity of his statement to

police. Furthermore, the trial court did not abuse its discretion in concluding the

probative value of the letter outweighed any potential for prejudice under

Evidence Code section 352.

Defendant also suggests the trial court abused its discretion in admitting the

letter because it included a threat against nonwitness Anthony Motley that was

irrelevant and constituted improper evidence of a propensity for violence. He

further contends the redaction (omitting gang references) misled the jury to think

he was “mad as hell” at Gilbert because of Gilbert‟s statement to police, when in

fact the phrase referred to Gilbert‟s behavior toward one of defendant‟s girlfriends.

Defendant forfeited these contentions by failing to raise them below. Had he

preserved them, we would find any error harmless. As to the portion of the letter

concerning Motley, the jury would have been aware of the irrelevance of the threat

to any issue in this case, and would already have drawn any inferences regarding a

propensity for violence on defendant‟s part from the threat to Gilbert that was

properly before the jury. As to the allegedly misleading redaction, the jury already

would have inferred, from defendant‟s threat to beat Gilbert for making a

statement to police, that he was angry at Gilbert, and we are confident the

41

exclusion of evidence of an additional basis for that anger, even if error under state

law, would not have made a difference in the outcome of the case. (People v.

Watson (1956) 46 Cal.2d 818, 836.) Nor did admission of the letter prejudice

defendant‟s right to a fair trial in violation of the federal due process guarantee.

d. Restriction on defendant’s attempt to demonstrate that

Watt Avenue eyewitnesses identified him as part of a
“consensus”


Defendant contends the trial court violated state evidentiary law and his

constitutional right to present a defense to the Watt Avenue charges by precluding

him from introducing two pieces of evidence that supported his effort to show the

eyewitness identifications were unreliable: (1) evidence that Leticia Aguilar had a

conversation with Watt Avenue store manager Lisa Lee in which Lee encouraged

Aguilar to identify defendant as the robber, and (2) evidence that before Detective

Minter interviewed Michael Baumann, he learned employees were talking among

themselves and repeating rumors about the robbery. Defendant‟s contention lacks

merit.

The two instances of claimed error arose in the following contexts:

(1) In response to a question asked by defense counsel on direct

examination, defense investigator Marilyn Mobert acknowledged she interviewed

Watt Avenue McDonald‟s employee and eyewitness Leticia Aguilar, who told

Mobert she had had a conversation with store manager Lisa Lee. The prosecutor

objected on grounds the question was leading and called for hearsay. When

defense counsel asserted he was not offering the testimony for its truth, the

prosecutor inquired as to its relevance. The court then in effect invited defense

counsel to establish a foundation for the admission of the testimony, whereupon

defense counsel asked Mobert: “During the—did Ms. Lee tell Ms. Aguilar—

according to Ms. Aguilar, did Ms. Lee—.” The prosecutor objected again on

42

hearsay grounds, and the court sustained the objection. Defense counsel moved on

to another topic.

(2) During defense cross-examination of Detective Minter, defense counsel

asked Minter whether, during the course of the investigation, he returned to the

Watt Avenue restaurant. Minter said he did. Defense counsel asked whether

Minter “talked to a lot of people at the McDonald‟s, a lot of the employees?”

Minter agreed he had talked to “several.” Defense counsel asked: “And did you

learn in your interviews with those people that—the day after the robbery, couple

of days after the robbery, I mean, there were rumors flying all over the place,

right?” The prosecutor said: “I am going to object to rumors.” The court

sustained the objection. Defense counsel asked: “People were talking, employees

were talking among themselves about what happened?” The prosecutor again

objected, the court sustained the objection, and defense counsel moved on to

another topic.

Defendant mounts a twofold challenge to the court‟s rulings. First, he

urges that the court erred in sustaining the prosecutor‟s hearsay objections because

the testimony was offered not for the truth of the matters asserted,19 but rather to

show that the eyewitnesses‟ identifications of defendant as the robber were tainted

by suggestions made by manager Lisa Lee or fellow employees. Second, he

contends the rulings deprived him of his right, under the Fifth, Sixth, and

Fourteenth Amendments to the United States Constitution, to a meaningful

opportunity to present a defense. (See Crane v. Kentucky (1986) 476 U.S. 683,

690; Washington v. Texas (1967) 388 U.S. 14, 19.)

19

See Evidence Code, section 1200, subdivision (a) (“ „Hearsay evidence‟ is

evidence of a statement that was made other than by a witness while testifying at
the hearing and that is offered to prove the truth of the matter stated.”).

43

On appeal, we may not reverse a judgment for the erroneous exclusion of

evidence unless “[t]he substance, purpose, and relevance of the excluded evidence

was made known to the court by the questions asked, an offer of proof, or by any

other means.” (Evid. Code, § 354.) As the Attorney General observes, defendant

made no offer of proof or attempted otherwise to advise the court of the substance

and purpose of the testimony he sought to elicit. He thus does not show

entitlement to relief. We reach the same conclusion regarding defendant‟s

constitutional claims. The ordinary application of state evidentiary law does not,

as a general matter, implicate the United States Constitution. (People v. Kraft,

supra, 23 Cal.4th at pp. 1035-1036.) Here, the trial court‟s ruling did not

foreclose defendant from presenting a defense, but “merely rejected certain

evidence concerning the defense.” (People v. Bradford, supra, 15 Cal.4th at

p. 1325.) The trial court‟s rulings, therefore, did not infringe defendant‟s

constitutional rights.

e. Sufficiency of evidence of kidnapping

Defendant contends his four convictions for kidnapping to commit robbery

in connection with the Watt Avenue crimes should be reversed because there was

insufficient evidence of asportation. We disagree.

“On appeal, an appellate court deciding whether sufficient evidence

supports a verdict must determine whether the record contains substantial

evidence—which we repeatedly have described as evidence that is reasonable,

credible, and of solid value—from which a reasonable jury could find the accused

guilty beyond a reasonable doubt.” (People v. Hovarter, supra, 44 Cal.4th at

pp. 996-997, italics omitted; see generally Jackson v. Virginia (1979) 443 U.S.

307, 324.) We presume in support of the judgment “the existence of every fact the

44

trier could reasonably deduce from the evidence.” (People v. Kraft, supra, 23

Cal.4th at p. 1053.)

At the time of the crimes,20 kidnapping for robbery, or aggravated

kidnapping, required movement of the victim that (1) was not merely incidental to

the commission of the robbery, and (2) substantially increased the risk of harm

over and above that necessarily present in the crime of robbery itself. (§ 209,

subd. (b); In re Earley (1975) 14 Cal.3d 122, 127; People v. Daniels (1969) 71

Cal.2d 1119, 1139; cf. People v. Dominguez (2006) 39 Cal.4th 1141, 1149-1155

[discussing asportation element of kidnapping for the purpose of rape].) These

two elements are not mutually exclusive but are interrelated. (People v. Rayford

(1994) 9 Cal.4th 1, 12; see also People v. Martinez, supra, 20 Cal.4th at pp. 232-

233.)

With regard to the first prong, the jury considers the “scope and nature” of

the movement, which includes the actual distance a victim is moved. (People v.

Martinez, supra, 20 Cal.4th at p. 233; People v. Rayford, supra, 9 Cal.4th at p. 12;

People v. Daniels, supra, 71 Cal.2d at p. 1131, fn. 5.) There is, however, no

minimum distance a defendant must move a victim to satisfy the first prong.

(Daniels, at pp. 1128-1129; Rayford, at p. 12; Martinez, at p. 233.)


20

At the time of defendant‟s crimes, aggravated kidnapping, codified in

section 209, subdivision (b), was defined as kidnapping to commit robbery. In
1997, the Legislature revised the statute to define aggravated kidnapping as
kidnapping to commit robbery or certain sex offenses, and modified the
asportation standard by eliminating the requirement that the movement of the
victim “substantially” increase the risk of harm to the victim. (People v. Martinez
(1999) 20 Cal.4th 225, 232 & fn. 4; § 209, subd. (b)(1); Stats. 1997, ch. 817, § 2,
p. 5519.)

45

“ „The second prong of the Daniels test refers to whether the movement

subjects the victim to a substantial increase in risk of harm above and beyond that

inherent in [the underlying crime]. [Citations.] This includes consideration of

such factors as the decreased likelihood of detection, the danger inherent in a

victim‟s foreseeable attempts to escape, and the attacker‟s enhanced opportunity to

commit additional crimes. [Citations.] The fact that these dangers do not in fact

materialize does not, of course, mean that the risk of harm was not increased.‟ ”

(People v. Martinez, supra, 20 Cal.4th at p. 233, quoting People v. Rayford, supra,

9 Cal.4th at pp. 13-14.)

Here, the evidence adduced at trial reveals that when defendant first

encountered McDonald‟s manager Stanly Zaharko, he took Zaharko at gunpoint

past the front counter area of the closed restaurant, back through the cooking area,

until they reached the restaurant‟s safe. From there, defendant walked Zaharko

from the safe into the back of the restaurant, encountering the three other

employees. Defendant then instructed the four to head downstairs to the

basement.21 There, defendant ordered them into the freezer, where the

temperature was approximately 20 degrees. Once everyone was inside, defendant

shut and locked the door. After waiting approximately 10 minutes to allow the

robber time to take whatever he wanted and leave, Zaharko used a fire ax located

inside the freezer to break through the door. Zaharko estimated defendant forcibly

moved him “in the neighborhood of a hundred and fifty feet, two hundred feet,”

and that the other three employees were moved “about eighty or ninety feet.”


21

The interior stairwell was “completely out of sight” of a person ordering

food inside the restaurant. An exterior stairwell, which also led down to the
basement, was visible at a close distance outside the back of the restaurant.

46

As in Daniels, defendant‟s forcible movement of the victims was limited to

movement inside the premises of the Watt Avenue McDonald‟s (People v.

Daniels, supra, 71 Cal.2d at pp. 1126, 1140), but unlike in Daniels, the movement

here took Zaharko—and ultimately the other victims—from the front of the store,

down a hidden stairway, and into a locked freezer. Under these circumstances, we

cannot say the “scope and nature” of this movement was “merely incidental” to

the commission of the robbery. Additionally, the movement subjected the victims

to a substantially increased risk of harm because of the low temperature in the

freezer, the decreased likelihood of detection, and the danger inherent in the

victims‟ foreseeable attempts to escape such an environment.

On this record, then, we conclude sufficient evidence of asportation

supports defendant‟s convictions of aggravated kidnapping.

4. Asserted Prosecutorial Misconduct

a. Comment on Baumann’s fear of testifying

Defendant contends the prosecutor engaged in misconduct during closing

argument by mentioning a fact not in evidence: that prosecution witness Michael

Baumann had risked his life by testifying against defendant. As we explain, the

contention was forfeited for appellate purposes by defendant‟s failure to object

below, and lacks merit in any event because the jury would have understood that

the prosecutor‟s remark, in context, was a proper comment on Baumann‟s

testimony.

Baumann, who, as noted, was present at the Watt Avenue McDonald‟s

restaurant at the time of the robbery murder, testified that one of his relatives had

worked with defendant at the Florin Road McDonald‟s restaurant. Baumann had

refused to identify the relative to the police and while on the witness stand, and

confirmed that he was afraid to testify in court because defendant knew where his

47

family lived. The trial court instructed the jury this evidence was offered only to

show the witness‟s state of mind, and not to show that defendant “either directly or

indirectly threatened this witness and/or any of his family members.” In response

to a question by the prosecutor, Baumann acknowledged that defendant had not

directly threatened him. The prosecutor asked, “What does it mean to you if you

testify against somebody?” Baumann replied, “You could die.” Defense counsel

objected and asked that the answer be struck. The trial court declined to do so, but

again admonished the jury that the testimony was relevant only on the issue of the

witness‟s state of mind. When the prosecutor began to ask another question along

the same lines, the trial court sustained the objection and directed the prosecutor to

inquire into another topic.

In closing argument, the prosecutor discussed Baumann‟s apparent fear of

testifying and his identification of defendant as the perpetrator of the Florin Road

crimes: “He knows what he saw, and he was scared to death to say it and you saw

it. Michael Baumann was the one, if you remember before lunch, basically saying

I don‟t know who did it. Sean doesn‟t know anybody that worked with my

relatives at Florin Road, and then after lunch when he realized that this is just not

going to work, I have been subpoenaed, I‟m here, I‟m going to get it out. And he

told the truth, and that‟s what he told Detective Minter, also, because he has to sit

here and look at Mr. Vines face-to-face, and he did it. And he is a person of a

strong character. [¶] We submit Michael Baumann is somewhat of your quiet

hero. He is in a tough jam, but he came up on it. And he said you know what,

after lunch he said I saw Sean coming in the side door. I know it was him.”

Defense counsel, during closing argument, reminded the jury of the trial

court‟s admonition: “[Y]ou must keep in mind that there is absolutely no evidence

and there is no argument from the prosecution and the Court . . . called it an

admonishment when we went through this bit, but there is no evidence that Mr.

48

Vines has done anything directly, indirectly or otherwise to cause Mr. Baumann

fear of anything. The Court made that very clear to you.”

In his rebuttal argument, the prosecutor returned to this topic: “[Defense

counsel] talks about Mr. Baumann and his fear and says what did he really have to

be afraid of? Just look at his face, look at his anguish. That‟s why we call people

live so you can see them. That‟s why we don‟t want hearsay. You can see them,

size them up, look at them and you can tell all over his face he is scared to death to

sit in front of this man and say these things. [¶] For one thing, he has a pretty

good reason to be afraid of him. He put a gun right to his face. That‟s a real good

reason to be afraid of him. No evidence he directly threatened him. I’m not

saying that, but he put a gun to his face, and he was a squeeze away from killing

him. That‟s good reason to be afraid. And he put him in the freezer, and he

knows where his family lives. And he cares about his family, and he doesn‟t want

his family to get hurt.” (Italics added.) Moments later in the argument, the

prosecutor said: “And when Mike Baumann has to come in here like any other

witness, look at this man and put a gun to his head and shot Ron Lee in the back of

the head and have to say he is the one, that takes a lot of courage. It would be real

easy for him to say I don‟t know who it was, and he is off the hook. He puts

himself into jeopardy and risk by saying it is him. He gets nothing out of it.”

(Italics added.)

Defendant contends the prosecutor‟s statement, “He [Baumann] puts

himself into jeopardy and risk by saying it is him,” constituted misconduct.

Defendant forfeited this contention by failing to object at trial. (People v. Abilez

(2007) 41 Cal.4th 472, 493.) Contrary to defendant‟s assertion on appeal, the

prosecutor‟s remark was not inherently prejudicial, hence defendant‟s failure to

object may not be excused on the ground that to have done so would have been

futile. Even were we to overlook this forfeiture and address the merits of the

49

claim, no error occurred. “ „The applicable federal and state standards regarding

prosecutorial misconduct are well established. “ „A prosecutor‟s . . . intemperate

behavior violates the federal Constitution when it comprises a pattern of conduct

“so egregious that it infects the trial with such unfairness as to make the conviction

a denial of due process.” ‟ ” [Citations.] Conduct by a prosecutor that does not

render a criminal trial fundamentally unfair is prosecutorial misconduct under state

law only if it involves “ „ “the use of deceptive or reprehensible methods to

attempt to persuade either the court or the jury.” ‟ ” [Citation.]‟ ” (People v. Hill

(1998) 17 Cal.4th 800, 819; see People v. Stanley, supra, 39 Cal.4th at p. 951;

accord, Abilez, at p. 494.) The prosecutor here cannot be said to have infected the

trial with unfairness or used deceptive or reprehensible methods. Both counsel

told the jury—and Baumann acknowledged—that despite Baumann‟s fear of

retaliation, there was no evidence defendant had threatened him or his family, and

the court specifically admonished the jury that Baumann‟s testimony was not

offered to show that defendant, directly or indirectly, threatened him. The jury

therefore would have understood the challenged remark as referring only to

Baumann‟s state of mind as he testified—that he believed he put himself “into

jeopardy and risk” by testifying against defendant—and that this circumstance

bolstered the credibility of his testimony. Defendant‟s contention therefore must

be rejected.

b. Asserted presentation of false testimony by Penilton

A prosecutor‟s presentation of knowingly false testimony (Mooney v.

Holohan (1935) 294 U.S. 103, 112), or the failure to correct such testimony after it

has been elicited (Napue v. Illinois (1959) 360 U.S. 264, 265-272), violates a

defendant‟s right to due process of law under the United States Constitution. (See

also People v. Marshall (1996) 13 Cal.4th 799, 829; In re Jackson (1992)

50

3 Cal.4th 578, 595.) Defendant claims the prosecutor violated these rules when he

presented the testimony of Vera Penilton, who denied that separately tried

coperpetrator William Deon Proby was the father of any of her children.

According to defendant, this assertedly false denial was relevant to Penilton‟s

credibility in that it reflected both her bias arising from her relationship with Proby

and her untrustworthiness, as shown by her willingness to commit perjury. As we

explain, no due process violation occurred.

i. Facts

Sonya Williams, the first prosecution witness at the guilt phase, testified

that she met defendant in April 1994 and they became intimately involved

sometime thereafter. Williams testified that sometime in September 1994

defendant telephoned her, told her he was going to meet Proby and Penilton at a

hotel, and asked if Williams would “hang out” with them. She agreed. Defendant

and Penilton thereafter arrived in a car to pick up Williams. At the time, Williams

had never met Proby or Penilton.

In a videotaped interview with police conducted shortly after defendant and

Proby were arrested, Williams told detectives that after he picked her up,

defendant dropped her and Penilton off and went to pick up Proby from work.

During this time, Penilton told Williams “she just had a baby by, um Deon

[Proby]. And she thinks [she‟s] pregnant again . . . .”

At trial, on direct examination, prosecution witness Penilton testified she

first met Proby in April 1994, when she was four months pregnant with her first

child. Penilton denied Proby was the father of that child, who was born in August.

Later, on redirect examination, Penilton denied Proby was the father of any of her

three children.

51

Penilton testified that, several hours after the robbery, she heard defendant

admit to killing Ronald Lee.

ii. Discussion

According to defendant, Penilton‟s testimony that Proby was not the father

of any of her children “was, as the prosecutor well knew, false” because it “was

contradicted by a direct admission Penilton made, before Proby was arrested, to

another key prosecution witness, Sonya Williams.” Defendant claims the

circumstances under which Penilton disclosed Proby‟s paternity to Williams

provide substantial assurances of its trustworthiness because it was a freely made

statement, and Penilton had no reason to lie and no advantage to gain by falsely

representing to Williams that Proby was the father of her newborn. This

assertedly leads to the “inescapable conclusion” that Penilton lied when she

testified about when she met Proby and that Proby was not the father of her

children.

Unlike defendant, we do not find this conclusion inescapable. Mere

inconsistencies between a witness‟s testimony and her prior statements do not

prove the falsity of the testimony. (See People v. Anderson (1962) 209

Cal.App.2d 598, 600.) On this record, we cannot know whether Penilton lied in

her testimony or in her statement to Williams or, indeed, whether it was Williams

whose statement was false or mistaken. Defendant therefore fails to establish that

the prosecutor presented false testimony or failed to correct such testimony.

Accordingly, no due process violation occurred.

5. Issues Related to Counsel

a. Ineffective assistance of counsel—failure to impeach

Penilton

In a contention closely related to the immediately preceding due process

claim, defendant asserts he was denied his Sixth Amendment right to the effective

52

assistance of counsel due to trial counsel‟s failure to impeach Vera Penilton with

Sonya Williams‟s statement to police.22 Defendant notes that counsel

“unquestionably had access to the proof of [Penilton‟s] prior admission to Sonya

Williams that she had just had a baby by Proby, because it was contained in a

court exhibit, memorialized in both a videotape and a written transcript, other

portions of which came before the jury. Yet . . . trial counsel unaccountably failed

to impeach Penilton with her prior statement to Williams.”

“The law governing defendant‟s claim is settled. „A criminal defendant is

guaranteed the right to the assistance of counsel by both the state and federal

Constitutions. [Citations.] “Construed in light of its purpose, the right entitles the

defendant not to some bare assistance but rather to effective assistance.” ‟ (People

v. Wharton (1991) 53 Cal.3d 522, 575 [280 Cal.Rptr. 631, 809 P.2d 290], quoting

People v. Ledesma (1987) 43 Cal.3d 171, 215 [233 Cal.Rptr. 404, 729 P.2d 839],

italics in original.) It is defendant‟s burden to demonstrate the inadequacy of trial

counsel. [Citation.] We have summarized defendant‟s burden as follows: „ “In

order to demonstrate ineffective assistance of counsel, a defendant must first show


22

Elsewhere in his opening brief, defendant advances a general claim of

ineffective assistance of counsel based on the assumption that trial counsel‟s
various trial objections failed to preserve his rights under the state and federal
Constitutions.

New constitutional arguments that “do not invoke facts or legal standards

different from those the trial court itself was asked to apply, but merely assert that
the trial court‟s act or omission, insofar as wrong for the reasons actually
presented to that court, had the additional legal consequence of violating the
Constitution. . . . are not forfeited on appeal.” (People v. Boyer (2006) 38 Cal.4th
412, 441, fn. 17.) Boyer therefore allows us to reach the merits of defendant‟s
substantive claims of error, making it unnecessary to address the merits of his
general ineffective assistance of counsel claim to the extent it implicates the
failure to raise the constitutional “gloss” on his claims of error.

53

counsel‟s performance was „deficient‟ because his „representation fell below an

objective standard of reasonableness . . . under prevailing professional norms.‟

[Citations.] Second, he must also show prejudice flowing from counsel‟s

performance or lack thereof. [Citation.] Prejudice is shown when there is a

„reasonable probability that, but for counsel‟s unprofessional errors, the result of

the proceeding would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome.‟ ” ‟ [Citation.]

[¶] Reviewing courts defer to counsel‟s reasonable tactical decisions in examining

a claim of ineffective assistance of counsel [citation], and there is a „strong

presumption that counsel‟s conduct falls within the wide range of reasonable

professional assistance.‟ [Citation.] Defendant‟s burden is difficult to carry on

direct appeal, as we have observed: „ “Reviewing courts will reverse convictions

[on direct appeal] on the ground of inadequate counsel only if the record on appeal

affirmatively discloses that counsel had no rational tactical purpose for [his or her]

act or omission.” ‟ [Citation.]” (People v. Lucas (1995) 12 Cal.4th 415, 436-437.)

If the record on appeal “ „ “sheds no light on why counsel acted or failed to act in

the manner challenged[,] . . . unless counsel was asked for an explanation and

failed to provide one, or unless there simply could be no satisfactory explanation,”

the claim on appeal must be rejected,‟ ” and the “claim of ineffective assistance in

such a case is more appropriately decided in a habeas corpus proceeding.”

(People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)

As noted above, on this record, we cannot determine whether Penilton was

lying when she made her statement to Williams, or when she testified at

defendant‟s trial, or if it was Williams‟s statement that was false. Nor does the

record reveal why counsel failed to introduce Williams‟s statement to police to

impeach Penilton. To conclude definitively that counsel was remiss in failing to

impeach Penilton would, on this record, be difficult. But even assuming for the

54

sake of argument that trial counsel rendered deficient performance, defendant‟s

claim would still fail for lack of prejudice.

As defendant acknowledges, although trial counsel did not impeach

Penilton with Sonya Williams‟s statement to police, he undermined Penilton‟s

credibility by relying on evidence of her convictions of six petty thefts. But

perhaps more importantly in light of defendant‟s present complaint, trial counsel

elicited from Penilton that she and Proby were boyfriend and girlfriend, that they

were “pretty close,” that she and Proby shared a bedroom in her house where

Proby kept some of his clothes, and that they slept together “every night.” In other

words, counsel probed her possible motivations for protecting Proby. Given that

the jury heard of Penilton‟s convictions and the extent of her intimate relationship

with Proby, and that the evidence of defendant‟s guilt was strong, we see no

reasonable probability that, had trial counsel impeached Penilton on an additional

collateral matter, the result of the proceeding would have been different.

(Strickland v. Washington (1984) 466 U.S. 668, 693-694.)

b. Denial of Marsden motion

Defendant contends the trial court abused its discretion by failing to grant

his motion made pursuant to People v. Marsden (1970) 2 Cal.3d 118 to relieve his

attorney and appoint new counsel, thereby violating his Sixth Amendment right to

the effective assistance of counsel. We disagree.

After the completion of the guilt phase, but before the commencement of

the penalty phase, defendant sent a letter to the trial court expressing displeasure

with defense counsel for his cross-examination of particular witnesses, and for

“not call[ing] 2 witnesses that would‟ve helped me in the [W]att [A]ve[nue] case.”

On September 16, 1997, outside the presence of the jury, the trial court

inquired into the meaning of the letter. Defense counsel explained that defendant

55

wished to move for a mistrial based on the “inadequacy” of the proceedings, and

asked the court to appoint counsel to investigate defendant‟s claim. The court

denied the defense motion, but decided to treat defendant‟s letter as a Marsden

motion and immediately thereafter conducted a Marsden hearing.

During the closed hearing, defendant reiterated that his dissatisfaction with

defense counsel stemmed from his failure to call two defense witnesses and his

failure to ask on cross-examination certain questions of prosecution witnesses.

After listening to defendant‟s complaints, the trial court asked counsel for a

response.

Regarding defendant‟s charge that he had failed to call two witnesses,

counsel explained that he had sought out one witness, Jerome Williams,23 but had

not been able to locate and subpoena him. Regarding the second witness, Tina

Villanueva, who was to be an alibi witness, counsel explained that had he

presented Villanueva, “two things would have been happening. That would have

been perjury, which I am not inclined to do for anybody, and the District Attorney

had a copy of the letter from [defendant] to . . . Villanueva [in which defendant

„[told] her that she was his alibi witness‟], and would have buried him even more

than he was.”

Regarding defendant‟s charge that counsel failed to cross-examine

prosecution witnesses with particular questions, counsel explained, “They were


23

Jerome Williams was defendant‟s coworker at the Florin Road McDonald‟s

and an eyewitness to those crimes. Williams was interviewed by Sacramento
Police Detective Richard Overton about three hours after the Florin Road crimes.
Williams described one of the gunmen as “approximately five foot seven, 140 to
160 pounds.” Defendant is six feet three inches tall.

56

issues which I felt at the time were either better left alone or not further explored

. . . .”

After hearing from both defendant and defense counsel, the trial court

denied the Marsden motion.

“ „Defendants in capital cases often express dissatisfaction with their

appointed counsel, affording us ample opportunity to address the contours of the

rule set forth in Marsden, supra, 2 Cal.3d 118. The rule is well settled. “ „When a

defendant seeks to discharge his appointed counsel and substitute another attorney,

and asserts inadequate representation, the trial court must permit the defendant to

explain the basis of his contention and to relate specific instances of the attorney‟s

inadequate performance. [Citation.] A defendant is entitled to relief if the record

clearly shows that the first appointed attorney is not providing adequate

representation [citation] or that defendant and counsel have become embroiled in

such an irreconcilable conflict that ineffective representation is likely to result.‟ ”

[Citation.] The decision whether to grant a requested substitution is within the

discretion of the trial court; appellate courts will not find an abuse of that

discretion unless the failure to remove appointed counsel and appoint replacement

counsel would “substantially impair” the defendant‟s right to effective assistance

of counsel.‟ ” (People v. Abilez, supra, 41 Cal.4th at pp. 487-488.)

Here, the record demonstrates the court allowed defendant to explain the

reasons for his dissatisfaction with counsel and permitted counsel to respond.

Counsel had adequate explanations for all of defendant‟s complaints, including an

unwillingness to suborn perjury by calling Tina Villanueva. (In re Branch (1969)

70 Cal.2d 200, 210 [an attorney owes the client no duty to present untruthful

testimony]; see also People v. Riel (2000) 22 Cal.4th 1153, 1217.) With respect to

defendant‟s complaint that counsel failed to ask particular questions on cross-

examination, counsel‟s explanation at the closed hearing indicates it was a tactical

57

decision to prevent the introduction of or further emphasis on testimony unhelpful

or damaging to defendant. And, with respect to defendant‟s charge that counsel

failed to call Jerome Williams, counsel‟s reason for not doing so—that he could

not locate him—was a sufficient response to defendant‟s complaint. Because the

record does not clearly show counsel‟s performance was inadequate, the trial court

did not abuse its discretion in refusing to relieve counsel. (People v. Abilez, supra,

41 Cal.4th at p. 488.)

Defendant further faults the trial court for failing to conduct a “meaningful

inquiry” into the matter because the court “asked not a single follow-up question

regarding trial counsel‟s failure to present Jerome Williams‟ exculpatory evidence,

and completely failed to explore whether this evidence could have been

presented.” But contrary to defendant‟s suggestion, and as the Attorney General

correctly notes, the trial court had no way of knowing the exculpatory nature of

Williams‟s statement to police and consequently cannot be faulted for conducting

an inadequate inquiry. First, at the Marsden hearing, when Williams‟s name was

initially revealed, trial counsel explained that he had attempted to locate Williams

to no avail, a response that was sufficient to end the inquiry immediately. Second,

because a magistrate had presided over defendant‟s preliminary hearing where the

detective testified as to Williams‟s exculpatory statement—rather than the trial

judge hearing defendant‟s Marsden motion—the trial court had no basis to query

further into the matter. Under these circumstances, then, we cannot characterize

the trial court‟s inquiry into defendant‟s complaint as deficient.

c. Ineffective assistance of counsel—failure to introduce

evidence of Jerome Williams’s description of the robber

Defendant asserts trial counsel rendered constitutionally ineffective

assistance in failing to introduce evidence of Jerome Williams‟s description of the

Florin Road robber. Defendant notes: “Jerome Williams was the Florin Road

58

employee and eyewitness who, in the hours immediately after the robbery-

homicide, told a detective that the robber with the silver gun was „approximately

five foot seven, a hundred and forty to one hundred sixty pounds.‟ ” This

description tended to be exculpatory because defendant stands six feet three inches

tall. According to defendant, Williams‟s statement to the detective was admissible

under the spontaneous statement exception to the hearsay rule, codified in

Evidence Code section 1240, and defense counsel therefore was ineffective for

failing to introduce it.

As noted above, in order to demonstrate ineffective assistance of counsel, a

defendant must show both that counsel‟s performance fell below an objective

standard of reasonableness under prevailing professional norms and that there is a

reasonable probability that, but for counsel‟s unprofessional errors, the result of

the proceeding would have been different. (People v. Lucas, supra, 12 Cal.4th at

p. 436.) We review deferentially counsel‟s reasonable tactical decisions. (Ibid.)

At the threshold, we observe that it was not clear Williams‟s statements

were admissible. At defendant‟s preliminary hearing, the prosecution called

Sacramento Police Detective Richard Overton. On cross-examination by

defendant‟s counsel, Overton testified he interviewed Jerome Williams, one of the

Florin Road McDonald‟s employees, about 1:20 a.m. on September 29, 1994. The

robbery had occurred several hours earlier, just before 11:00 p.m. Williams told

Overton he had seen a single robber and, as indicated above, described his height

and weight as inconsistent with defendant‟s.

When asked to describe Williams‟s demeanor during the interview,

Overton characterized him as “[u]pset, frightened, sad, concerned.”

In arguing that trial counsel was ineffective for failing to introduce

Overton‟s statement, defendant relies first on Evidence Code section 1240, which

provides: “Evidence of a statement is not made inadmissible by the hearsay rule if

59

the statement: [¶] (a) Purports to narrate, describe, or explain an act, condition, or

event perceived by the declarant; and [¶] (b) Was made spontaneously while the

declarant was under the stress of excitement caused by such perception.”

Defendant also relies on People v. Brown (2003) 31 Cal.4th 518, 541, where we

addressed that statute and said: “ „When the statements in question were made and

whether they were delivered directly or in response to a question are important

factors to be considered on the issue of spontaneity. [Citations.] But as we

emphasized in People v. Washington, “Neither lapse of time between the event

and the declarations nor the fact that the declarations were elicited by questioning

deprives the statements of spontaneity if it nevertheless appears that they were

made under the stress of excitement and while the reflective powers were still in

abeyance.” ‟ (People v. Poggi (1988) 45 Cal.3d 306, 319 [246 Cal.Rptr. 886, 753

P.2d 1082], quoting People v. Washington (1969) 71 Cal.2d 1170, 1176 [81

Cal.Rptr. 5, 459 P.2d 259], italics added in Poggi.)” We further explained:

“ „ The crucial element in determining whether a declaration is sufficiently reliable

to be admissible under this exception to the hearsay rule is . . . the mental state of

the speaker. The nature of the utterance—how long it was made after the startling

incident and whether the speaker blurted it out, for example—may be important,

but solely as an indicator of the mental state of the declarant. . . . [U]ltimately

each fact pattern must be considered on its own merits, and the trial court is vested

with reasonable discretion in the matter.‟ ” (Ibid.)

Here, the adjectives Overton used in describing Williams‟s demeanor

during the interview—“[u]pset, frightened, sad, concerned”—along with the

relatively short period of time that had elapsed between Williams‟s observation of

the robber and his interview with Overton, suggest Williams‟s statement to

Overton may have been admissible under Evidence Code section 1240. (See, e.g.,

60

People v. Raley (1992) 2 Cal.4th 870, 893-894 [a statement made 18 hours after an

event was held spontaneous under Evid. Code, § 1240].)

We need not decide whether the statement would have been properly

admitted, however, because defendant‟s claim of ineffective assistance of counsel

fails for lack of prejudice. (In re Cox (2003) 30 Cal.4th 974, 1019-1020;

Strickland v. Washington, supra, 466 U.S. at p. 697.) Contrary to defendant‟s

argument, ample evidence connected him to the Florin Road crimes. On direct

examination, prosecution witness and Florin Road McDonald‟s manager Jeffrey

Hickey positively identified Proby as one of the two gunmen and described Proby

as roughly five feet 10½ inches tall. Hickey described the second gunman as

weighing between 185 and 200 pounds and as being approximately six feet two

inches tall. Hickey also testified that from his experience working with defendant,

the physical features of the second gunman, including height, weight, build, skin

color, and age, were consistent with those of defendant.

Towards the end of his direct testimony, Hickey stated that the “only

difference” he noticed between the second gunman and defendant was that the

voice used by the second gunman did not appear to be his natural voice. Earlier in

his testimony, Hickey described the second gunman‟s voice as “gruff” and that he

“sounded like he was trying to sound mean to make me hurry up [in opening the

restaurant safe], to make me worry.”

Although Hickey ultimately failed to positively identify defendant as the

second masked gunman, he nevertheless testified that the second gunman‟s

physical features, including his height, weight, build, skin color, and age, were

consistent with defendant‟s. Further, as noted above, prosecution witness Vera

Penilton testified that several hours after the robbery, she heard defendant admit to

killing Ronald Lee. On this evidence, then, we see no reasonable probability that,

had trial counsel introduced Williams‟s description of one of the gunmen to

61

Detective Overton under Evidence Code section 1240, the result of the proceeding

would have been different. (People v. Lucas, supra, 12 Cal.4th at p. 436.) As a

result, we reject defendant‟s claim that trial counsel was constitutionally

ineffective.

6. Instructional Issues

a. Refusal to instruct that immunized testimony of a

prosecution witness should be viewed with distrust

Vera Penilton, the only witness to definitively connect defendant to the

Florin Road crimes, testified at trial under a grant of use immunity, and the jury

was so informed. Defendant asked the court to instruct the jury to view her

testimony with distrust. The court refused to do so, but instead instructed the jury

it could consider “anything that has a tendency to prove or disprove the

truthfulness of the testimony of the witness,” including “[w]hether the witness is

testifying under a grant of immunity.” Defendant argues the trial court erred in

refusing his requested cautionary instruction.

Defendant relies on certain language in People v. Hunter (1989) 49 Cal.3d

957 (Hunter), but that case does not bear the weight defendant seeks to place on it.

In Hunter, we rejected the contention that a trial court erred in refusing to give a

cautionary instruction where witnesses testified under grants of transactional

immunity.24 Hunter began by stating the general rule that, except where

additional evidence is required by statute, the direct evidence of one witness who


24

“Use immunity protects a witness only against the actual use of his

compelled testimony, as well as the use of evidence derived therefrom.
Transactional immunity protects the witness against all later prosecutions relating
to matters about which he testifies.” (Hunter, supra, 49 Cal.3d at p. 973, fn. 4; see
Kastigar v. United States (1972) 406 U.S. 441, 449-453, 460.)

62

is entitled to full credit is sufficient for proof of any fact. (Evid. Code, § 411;

Hunter, at p. 977.) Hunter noted that the Penal Code sets forth certain exceptions

in criminal cases, including the corroboration requirement for accomplice

testimony (§ 1111), but emphasized that no California authority had recognized a

similar exception for immunized testimony, notwithstanding the existence of a

contrary rule in the federal courts (Hunter, at p. 977). Hunter did, as defendant

observes, distinguish use immunity from transactional immunity in rejecting a

requirement of a cautionary instruction. “Under federal law the prosecutor cannot

grant transactional immunity. [Citations.] Thus, the government remains free to

prosecute the witness after he testifies, as long as the prosecution is not based on

the witness‟s testimony. The grant of immunity therefore does not totally

eliminate the witness‟s incentive to testify falsely. [Citation.] California law,

however, provides that a witness ordered to testify over a claim of self-

incrimination shall be given transactional immunity. (§ 1324; Daly v. Superior

Court (1977) 19 Cal.3d 132, 146 [137 Cal.Rptr. 14, 560 P.2d 1193]; [citation].)

The prosecution‟s leverage over the witness is thereby sharply diminished, as is

the witness‟s motive to falsify. Thus, to paraphrase [People v.] Alcala [(1984)

36 Cal.3d 604, 623 (rejecting the contention the jury must be instructed to distrust

in-custody informant testimony)], „whatever consideration [an immunized witness]

may expect for testifying, the direct, compelling motive to lie is absent.‟

(36 Cal.3d at p. 624.)” (Hunter, at pp. 977-978.)

That Hunter held a cautionary instruction is not required when a witness

testifies under a grant of transactional immunity is clear. Equally clear, however,

is that Hunter did not confront the situation before us in this case, involving a

witness testifying with use immunity, and its remarks concerning the latter

situation are therefore dicta.

63

Defendant points out that, since Hunter, the Legislature has amended

section 1324 to provide for use immunity in addition to transactional immunity.

Hunter‟s discussion of the difference between the two types of immunity, he

argues, dictates that a cautionary instruction be given on request when a witness,

like Penilton, testifies under a grant of use immunity, which, unlike transactional

immunity, does not “totally eliminate the witness‟s incentive to testify falsely.”

(Hunter, supra, 49 Cal.3d at p. 978.) Similar instructions, he notes, are required in

connection with the testimony of accomplices (see People v. Guiuan (1998) 18

Cal.4th 558) and in-custody informants (§ 1127a). Because a witness who is

given only use immunity may still be prosecuted for the underlying crimes, in

defendant‟s view the witness still has a compelling motive to lie, and the jury must

be instructed to distrust the witness‟s testimony.

We are not persuaded. The general rule, of course, is that the jury decides

all questions of fact, including the credibility of a witness. (Evid. Code, § 312.)

And, as noted, except where additional evidence is required by statute, the direct

evidence of one witness who is entitled to full credit is sufficient for proof of any

fact. (Evid. Code, § 411.) A cautionary instruction, by obligating the jury to view

with skepticism the testimony of an immunized witness, impinges on the jury‟s

otherwise unfettered power to determine the witness‟s credibility. To be sure,

with respect to narrow categories of evidence, such as the testimony of

accomplices, which must be corroborated (§ 1111), and in-custody informants

(§ 1127a), the Legislature has imposed limits on the general rules because the

witness is deemed to have a particularly compelling motive to lie. The Legislature

has not, however, seen fit to do so with respect to immunized testimony, even after

Hunter. We therefore see no compelling reason to depart from the generally

applicable rule that the instructions need not direct the jury to view a particular

type of evidence with distrust.

64

The Court of Appeal, in People v. Hampton (1999) 73 Cal.App.4th 710,

721-724, employed similar reasoning in rejecting a claim of error in the refusal to

instruct that the testimony of an immunized witness should be viewed with

distrust. Hampton noted that no authority requires California courts to follow the

federal instructional rule and that the difference between the federal and former

state statute was but one of the bases on which we rested our decision in Hunter,

supra, 49 Cal.3d 957.25 (Hampton, at p. 723.) Citing an earlier Court of Appeal

decision that reached the same conclusion (People v. Echevarria (1992) 11

Cal.App.4th 444), Hampton recognized “ „the logic behind the concept that an

immunized witness‟s testimony may not be as trustworthy as a nonimmunized

witness‟s testimony,‟ ” but nevertheless concluded “ „it is a better practice to

include factors such as immunized testimony to the list of considerations

contained in CALJIC No. 2.20 rather than telling the jurors which witnesses they

should or should not trust because, as they are specifically instructed, they “are the

sole judges of the believability of a witness and the weight to be given the

testimony of each witness.” ‟ ” (Hampton, at p. 723; see also Echevarria, at

p. 450 [“It is equally logical that a convicted felon‟s testimony may not be as

trustworthy as a nonfelon‟s, or that a person with an established bias, interest, or

other motive, may not be as trustworthy as someone without such interests or

motives. All of these factors are „amplified‟ within CALJIC No. 2.20, and this

trial court‟s inclusion of an immunized witness‟s testimony in that list of


25

The witness in Hampton testified that she understood her grant of immunity

to mean she “could not be prosecuted for whatever she might say in court or for
any of these events” (People v. Hampton, supra, 73 Cal.App.4th at p. 714),
arguably describing both use and transactional immunity (id. at p. 723). The
Hampton court reasoned that the rationale of Hunter, rather than the federal rule,
should apply in either event. (Hampton, at p. 723.)

65

amplifications was entirely appropriate.”].) The trial court did so here and did not

err in refusing to instruct the jury to distrust Penilton‟s testimony.

b. Challenges to CALJIC Nos. 2.01, 2.21.2, 2.22, 2.27 and

8.83

Defendant contends several standard CALJIC instructions given during the

guilt phase of his trial impermissibly diluted the requirement that guilt be proven

beyond a reasonable doubt, thereby violating his constitutional rights to due

process and trial by jury. Specifically, defendant takes issue with CALJIC Nos.

2.01 and 8.83, both of which address the sufficiency of circumstantial evidence,26

as well as CALJIC Nos. 2.21.2 [witness willfully false],27 2.22 [weighing

conflicting testimony],28 and 2.27 [sufficiency of testimony of one witness].29)30


26

As given at defendant‟s trial, CALJIC No. 2.01, which was virtually

identical to the version of CALJIC No. 8.83 also given at defendant‟s trial, read in
part as follows: “Also, if the circumstantial evidence as to any particular count
permits two reasonable interpretations, one of which points to the defendant‟s guilt
and the other to his innocence, you must adopt that interpretation that points to the
defendant‟s innocence, and reject that interpretation that points to his guilt. [¶] If,
on the other hand, one interpretation of this evidence appears to you to be
reasonable and the other interpretation to be unreasonable, you must accept the
reasonable interpretation and reject the unreasonable
.” The language defendant
finds objectionable is in italics.

27

As given at defendant‟s trial, CALJIC No. 2.21.2 read as follows, with the

language defendant finds objectionable in italics: “A witness, who is willfully
false in one material part of his or her testimony, is to be distrusted in others. You
may reject the whole testimony of a witness who willfully has testified falsely as
to a material point, unless, from all the evidence, you believe the probability of
truth
favors his or her testimony in other particulars.”

28

As given at defendant‟s trial, CALJIC No. 2.22 read as follows, with the

language defendant finds objectionable in italics: “You are not bound to decide an
issue of fact in accordance with the testimony of a number of witnesses, which
does not convince you, as against the testimony of a lesser number or other
evidence, which appeals to your mind with more convincing force. You may not
disregard the testimony of the greater number of witnesses merely from caprice,


(footnote continued on next page)

66

As defendant acknowledges, we have previously considered and rejected

the argument that these instructions improperly dilute the constitutional

requirement that guilt be proven beyond a reasonable doubt. (People v. Jennings

(1991) 53 Cal.3d 334, 386 [rejecting the defendant‟s challenge to CALJIC No.

2.01, noting: “The plain meaning of these instructions merely informs the jury to

reject unreasonable interpretations of the evidence and to give the defendant the

benefit of any reasonable doubt. No reasonable juror would have interpreted these

instructions to permit a criminal conviction where the evidence shows defendant

was „apparently‟ guilty, yet not guilty beyond a reasonable doubt.”]; People v.

Brasure (2008) 42 Cal.4th 1037, 1058-1059 [rejecting challenges to CALJIC Nos.

2.01, 2.21.2, 2.22, 2.27 & 8.83].)

Defendant advances no persuasive reason to reconsider our prior rejection

of challenges to these instructions, and we decline to do so.

7. Assertedly Prejudicial “Spillover” Effect of Errors

Defendant contends his convictions for the Watt Avenue crimes should be

reversed because of a “spillover” effect from the asserted errors and failures of

(footnote continued from previous page)

whim or prejudice, or from a desire to favor one side against the other. You must
not decide an issue by the simple process of counting the number of witnesses who
have testified on the opposing sides. The final test is not in the relative number of
witnesses, but in the convincing force of the evidence.”

29

As given at defendant‟s trial, CALJIC No. 2.27 read as follows: “You

should give the uncorroborated testimony of a single witness whatever weight you
think it deserves. Testimony by one witness which you believe concerning any
fact whose testimony about that fact does not require corroboration is sufficient for
the proof of that fact. You should carefully review all the evidence upon which
the proof of that fact depends.”

30

Despite defendant‟s failure to object to these instructions, we may consider

his challenges to them on appeal. (§ 1259.)

67

counsel regarding the Florin Road crimes. Because we have determined that no

prejudicial error occurred with respect to the Florin Road crimes, we necessarily

reject this claim as well.

II. PENALTY PHASE

A. Facts

1. Prosecution Case in Aggravation

The prosecution presented victim impact testimony, described in further

detail below, by relatives of Ronald Lee and the mother of his child. The

prosecution also introduced evidence that defendant had previously been

convicted of burglary and residential burglary.

2. Defense Case in Mitigation

Several of defendant‟s family members, a friend, and a high school teacher

testified on defendant‟s behalf.

Defendant‟s uncle, Renee Vines, described him as a jokester and a playful

kid who did not display temper. The Watts neighborhood of Los Angeles, where

defendant grew up in part, was “one of the roughest areas,” and one would have to

be streetwise to survive there. Renee Vines considered that for defendant to finish

high school and never get into serious trouble in Watts meant “he did a very good

job.” Kevin Vines, another of defendant‟s uncles, testified defendant never joined

a gang because he “didn‟t have the heart” and “wasn‟t cut out for it.” Roger

Vines, defendant‟s father, described him as a mild kid who was not a fighter and

who was like a big brother to many other children. Once, defendant‟s jaw was

broken by some kids who wanted him to join a gang.

Sonia Evette Pearson, defendant‟s mother, testified she was 15 years old

when defendant was born and that she married Roger Vines when defendant was

three or four years old. Their relationship had its ups and downs. Roger would

68

discipline defendant by beating him, which Sonia disagreed with. Roger treated

defendant‟s sister, Myeisha, more gently and appeared to slight defendant by

comparison. When her marriage to Roger ended, Sonia moved with the children

to Los Angeles, while Roger stayed in Sacramento. One summer, in the course of

a child support dispute, Roger did not return the children after a visit. Lacking the

income from his support payments, Sonia was forced to move to an apartment in

the housing projects in Watts. Eventually she retrieved the children from

Sacramento and they continued to live in the projects until she could afford other

housing. The adjustment to their new living situation was difficult for the

children, and the projects were dangerous.

Sonia concluded by telling the jury that defendant was not a fighter, he was

good with people, especially kids, and he was important to her.

Ann Diver-Stamnes, Ph.D., a professor of secondary teacher education at

Humboldt State University at the time of trial, was a teacher at Jordan High

School when defendant was a student there. She described the school as rundown,

dirty, poorly maintained, and unsafe. Many of the students there, including

defendant (and contrary to popular stereotypes), however, were caring and

altruistic individuals. She described defendant, who was enrolled in her peer

counseling class, as a warm and caring young man with a strong sense of humor

who did “stellar” work in her class and was not affiliated with a gang.

B. Asserted Error in Admission of Victim Impact Evidence

Defendant contends the trial court erred in admitting, over his objection, a

videotape depicting Ronald Lee singing and dancing, activities at which he was

accomplished and in which he took great pleasure. Defendant further contends the

trial court abused its discretion in permitting four witnesses to testify regarding the

impact of Lee‟s murder on them, although with but one minor exception he made

69

no objection to their testimony at trial. The asserted errors in admitting this

evidence, defendant argues, deprived him of the due process of law. As we shall

explain, the trial court did not abuse its discretion.

Admission of victim impact evidence at the penalty phase of a capital trial

is permissible under the Eighth Amendment to the United States Constitution

(Payne v. Tennessee (1991) 501 U.S. 808), and such evidence is admissible as a

circumstance of the offense under section 190.3, factor (a) (People v. Brown,

supra, 31 Cal.4th at p. 573), provided it does not invite a purely irrational response

from the jury (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1056). Victim

impact evidence is “designed to show . . . each victim‟s „uniqueness as an

individual human being.‟ ” (Payne, at p. 823, italics omitted.)

We have held that courts should be cautious about admitting videotapes

featuring the victim, noting that “[p]articularly if the presentation lasts beyond a

few moments, or emphasizes the childhood of an adult victim, or is accompanied

by stirring music, the medium itself may assist in creating an emotional impact

upon the jury that goes beyond what the jury might experience by viewing still

photographs of the victim or listening to the victim‟s bereaved parents. . . . In

order to combat this strong possibility, courts must strictly analyze evidence of

this type and, if such evidence is admitted, courts must monitor the jurors‟

reactions to ensure that the proceedings do not become injected with a legally

impermissible level of emotion.” (People v. Prince (2007) 40 Cal.4th 1179,

1289.) “The determination whether and to what extent to admit a videotape of the

victim‟s life at the penalty phase of a capital case is within the sound discretion of

the trial court.” (People v. Kelly (2007) 42 Cal.4th 763, 801 (conc. opn. of

Werdegar, J.); see also People v. Brady (2010) 50 Cal.4th 547, 579 [admission of

a brief “ „home movie‟ ” videotape depicting the victim during a family holiday

70

celebration and a family trip did not constitute an abuse of the trial court‟s

discretion].)

In the five-minute videotape, which the trial court viewed before admitting

and which we too have viewed, Ronald Lee is seen singing, dancing, and rapping

in three musical numbers with relatives, including his cousin Littell Williams, Jr.;

in a fourth number, Lee and several other young people perform before a crowd in

a high school auditorium. The videotape is of “home movie” quality, without

added music, narration or visual techniques, or staged or contrived elements; it is

not a tribute or eulogy, and there is nothing particularly dramatic or emotional

about the performances. (See People v. Dykes (2009) 46 Cal.4th 731, 785.) The

videotape depicts Lee at an age only about two years younger than he was at the

time of his death at age 20, and thus presumably very nearly as he was when

defendant shot him. The depiction of Lee‟s singing and dancing was relevant to

show what he was like. (People v. Kelly, supra, 42 Cal.4th at p. 798.) We agree

with the trial court that the videotape contained “nothing inflammatory that would

divert the jury from [its] proper function,” and nothing in the record suggests the

jury in fact reacted emotionally to the playing of the videotape. We therefore

conclude the trial court did not abuse its discretion in admitting it.

Defendant also contends the testimony of the four witnesses—Andrea

Clayton, Diane Williams, Littell Williams, Sr., and Littell Williams, Jr.—

regarding the effect of Ronald Lee‟s murder on them exceeded the proper scope of

victim impact evidence under state and federal law and was so prejudicial as to

require reversal of the death judgment.

Andrea Clayton, the mother of Ronald Lee‟s child, testified she met Lee

when she was 15 years old and, although they were no longer boyfriend and

girlfriend at the time of his death, they had agreed to be supportive of each other.

At the time of trial, their son was three years old, and Clayton had told him mean

71

people had shot his daddy, who was in heaven with Jesus now. She wondered

how their relationship would be and what their family would be like if Lee had

lived. She missed Lee‟s companionship and everything about him.

Diane Williams, Lee‟s legal guardian and the mother figure in his life,

testified Lee was a “joy,” a well-mannered, friendly, and helpful boy. She

described the shock of learning of Lee‟s death, the difficulty she had in coming to

terms with it, and the emptiness it left in their family.

Littell Williams, Sr., Lee‟s mother‟s uncle, knew Lee all his life. Lee was a

good, helpful, ambitious young man with a lovely voice. Williams, Sr., missed

Lee‟s presence, particularly at the church they both attended.

Littell Williams, Jr., Lee‟s cousin, testified he and Lee grew up together

and were like brothers. They had a strong bond and did everything together;

Williams, Jr., confided in Lee in a way he could not do with anyone else. They

had formed a singing group and made a recording under a contract with a Los

Angeles company. Williams, Jr., described the shock of learning of Lee‟s death

and his difficulty in accepting it. Lee‟s death had taken a toll on Williams, Jr., and

his family, and holidays were never the same afterward.

As noted, “[u]nless it invites a purely irrational response, evidence of the

effect of a capital murder on the loved ones of the victim and the community is

relevant and admissible under section 190.3, factor (a) as a circumstance of the

crime. [Citation.] The federal Constitution bars victim impact evidence only if it

is so unduly prejudicial as to render the trial fundamentally unfair.” (People v.

Brady, supra, 50 Cal.4th at p. 574; see also People v. Burney (2009) 47 Cal.4th

203, 258.) Here, as in Burney, the witnesses‟ testimony was brief, amounting to

fewer than 40 pages of reporter‟s transcript, and, as far as we can discern from the

record, was delivered without excessive emotion. The victim impact evidence in

this case was “typical of this type of evidence that we routinely have allowed, and

72

came within the limits established for such evidence.” (Burney, at p. 258.) Its

admission, therefore, was proper under state law and did not violate defendant‟s

federal constitutional rights.

C. Challenges to the Constitutionality of California’s Death Penalty

Law

1. Challenge to Prosecutor’s Discretion Based on Bush v. Gore

Defendant argues that the death penalty in California violates the California

Constitution and the Eighth and Fourteenth Amendments to the United States

Constitution because it is imposed arbitrarily and capriciously depending on the

county in which the case is prosecuted.

We have repeatedly rejected substantially similar claims, concluding over

20 years ago that “prosecutorial discretion to select those eligible cases in which

the death penalty will actually be sought does not . . . offend principles of equal

protection, due process, or cruel and/or unusual punishment.” (People v. Keenan

(1988) 46 Cal.3d 478, 505; see also People v. Demetrulias (2006) 39 Cal.4th 1,

43.)

Defendant, however, urges this court to reexamine our decisions in prior

cases in light of the United States Supreme Court‟s voting rights decision in Bush

v. Gore (2000) 531 U.S. 98, which, he asserts, requires uniformity among

California‟s 58 counties for prosecutorial standards for seeking the death penalty.

But as the high court explained, its consideration of the equal protection challenge

to Florida‟s voting recount process was “limited to the present circumstances, for

the problem of equal protection in election processes generally presents many

complexities.” (Id. at p. 109, italics added.) That case, therefore, does not warrant

our revisiting our prior holdings on the instant issue. (People v. Bennett (2009) 45

Cal.4th 577, 629, fn. 19.)

73

2. Delay in Appointment of Counsel

Defendant contends the delay in appointing appellate counsel—from the

judgment in November 1997 to May 2003—violated his constitutional rights.

Specifically, defendant claims a violation of his due process right to a speedy

appeal and his right to equal protection.

We previously have considered and rejected identical claims. (People v.

Dunkle (2005) 36 Cal.4th 861, 942; People v. Welch (1999) 20 Cal.4th 701, 775-

776; People v. Holt (1997) 15 Cal.4th 619, 708-709.) In support of his argument,

defendant relies on federal authority in noncapital cases, but as we have explained,

“[n]one of those decisions address the unique demands of appellate representation

in capital cases.” (Holt, at p. 709.) Additionally, “defendant fails to demonstrate

that the delay inherent in the procedures by which California recruits, screens, and

appoints attorneys to represent capital defendants on appeal, is not necessary to

ensure that competent representation is available for indigent capital appellants.”

(Ibid.) Defendant has identified no persuasive reason to reconsider our prior

holdings, and we decline to do so.

3. General Challenges to the Constitutionality of California’s

Death Penalty Law

Defendant contends that “[m]any features of this state‟s capital sentencing

scheme, alone or in combination with each other, violate the United States

Constitution.” He concedes we have rejected these claims in previous decisions,

but argues we should reconsider them. Having found no reason to do so, we reject

these claims and list them here to ensure a future court will consider them fully

exhausted. Accordingly, we conclude the death penalty law is not

unconstitutional:

— In assertedly failing to “genuinely narrow the class of persons eligible

for the death penalty” generally, or more specifically because the special

74

circumstances are so numerous or so broad (People v. Abilez, supra, 41 Cal.4th at

p. 533);

— Due to the asserted overbreadth of section 190.3, factor (a), which

permits the jury to consider the circumstances of the crime as an aggravating

factor (People v. Abilez, supra, 41 Cal.4th at p. 533);

— In failing to require the jury to find the aggravating factors were proved

beyond a reasonable doubt, that the aggravating factors outweighed the mitigating

factors beyond a reasonable doubt, or that death is the appropriate penalty beyond

a reasonable doubt (People v. Abilez, supra, 41 Cal.4th at p. 533), nor is this

conclusion called into question by the United States Supreme Court‟s decisions in

Apprendi v. New Jersey (2000) 530 U.S. 466 and Ring v. Arizona (2002) 536 U.S.

584 (People v. Mills, supra, 48 Cal.4th at p. 214; see also Cunningham v.

California (2007) 549 U.S. 270);

— In failing to require jury unanimity with respect to aggravating factors

(People v. Abilez, supra, 41 Cal.4th at p. 533);

— In failing to impose a burden of proof on either party, even if only proof

by a preponderance of the evidence, or, alternatively, in failing to instruct the jury

on the absence of a burden of proof (People v. Cowan, supra, 50 Cal.4th at p. 509;

People v. Abilez, supra, 41 Cal.4th at p. 533);

— In failing to require the jury to return written findings (People v. Abilez,

supra, 41 Cal.4th at p. 533);

— In failing to require intercase proportionality review (People v. Abilez,

supra, 41 Cal.4th at p. 534);

— In failing to specify which factors are aggravating and which are

mitigating (People v. Abilez, supra, 41 Cal.4th at p. 534);

— In prefacing several factors with the phrase “whether or not” (People v.

Abilez, supra, 41 Cal.4th at p. 534);

75

— In “treating noncapital sentencing differently from capital sentencing

(People v. Lewis and Oliver, supra, 39 Cal.4th at p. 1067 [„The statutory scheme

does not deny capital defendants the equal protection of the laws or any other

constitutional right insofar as it does not contain disparate sentence review (i.e.,

comparative or intercase proportionality review)‟]; People v. Manriquez (2005) 37

Cal.4th 547, 590 [36 Cal.Rptr.3d 340, 123 P.3d 614] [„capital and noncapital

defendants are not similarly situated and therefore may be treated differently

without violating constitutional guarantees of equal protection of the laws or due

process of law‟])” (People v. Abilez, supra, 41 Cal.4th at pp. 534-535);

— In failing to comply with “International Norms of Humanity and

Decency” (People v. Abilez, supra, 41 Cal.4th at p. 535); and

— In light of the abolition of capital punishment in Western Europe

(People v. Abilez, supra, 41 Cal.4th at p. 535).

4. Delay in Execution After Lengthy Confinement

Finally, defendant contends the delay in his execution—he has been on

death row for over 13 years—constitutes cruel and unusual punishment under the

federal and state Constitutions, “international law, covenants, treaties and norms.”

(See, e.g., Lackey v. Texas (1995) 514 U.S. 1045 (mem. of Stevens, J., on denial of

cert.).) “As explained in People v. Anderson [(2001)] 25 Cal.4th [543,] 606, „we

have consistently concluded, both before and since Lackey, that delay inherent in

the automatic appeal process is not a basis for concluding that either the death

penalty itself, or the process leading to its execution, is cruel and unusual

punishment.‟ ” (People v. Brown (2004) 33 Cal.4th 382, 404.) Defendant

advances no persuasive reason to reexamine this conclusion.

76

Further, any reliance on international law or extraterritorial decisional law

has no bearing on the validity of a death sentence that satisfies federal and state

constitutional mandates. (People v. Brown, supra, 33 Cal.4th at p. 404.)

D. Cumulative Effect of Asserted Errors

Defendant argues that the cumulative effect of the guilt and penalty phase

errors requires reversal of his conviction and death sentence even if no single error

compels reversal. Whether considered singly or in combination, any error or

assumed error was nonprejudicial.

III. DISPOSITION

The judgment is affirmed.

WERDEGAR, J.


WE CONCUR:

CANTIL-SAKAUYE, C. J.
KENNARD, J.
BAXTER, J.
CHIN, J.
CORRIGAN, J.
ASHMANN-GERST, J.*




*

Associate Justice of the Court of Appeal, Second Appellate District,

Division Two, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.

77



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

Name of Opinion People v. Vines
__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No.
S065720
Date Filed: May 19, 2011
__________________________________________________________________________________

Court:
Superior
County: Sacramento
Judge: James L. Long

__________________________________________________________________________________

Counsel:

Gilbert Gaynor, under appointment by the Supreme Court, for Defendant and Appellant.

Bill Lockyer and Kamala G. Harris, Attorneys General, Robert R. Anderson, Chief Assistant Attorney
General, Mary Jo Graves, Assistant Attorney General, Patrick J. Whalen and Michael Dolida, Deputy
Attorneys General, for Plaintiff and Respondent.














Counsel who argued in Supreme Court (not intended for publication with opinion):

Gilbert Gaynor
Law Office of Gilbert Gaynor
P.O. Box 41159
Santa Barbara, CA 93140-1159
(805) 962-5842

Michael Dolida
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 445-8538


Automatic appeal from a judgment of death.

Opinion Information
Date:Docket Number:Category:Status:
Thu, 05/19/2011S065720Automatic Appealsubmitted/opinion due

Parties
1The People (Respondent)
Represented by Attorney General - Sacramento Office
Michael D. Dolida, Deputy Attorney General
P.O. Box 944255
Sacramento, CA

2Vines, Sean Venyette (Appellant)
San Quentin State Prison
Represented by Gilbert Gaynor
Attorney at Law
P.O. Box 41159
Santa Barbara, CA


Dockets
Nov 7 1997Judgment of death
 
Nov 13 1997Filed certified copy of Judgment of Death Rendered
  November 7, 1997.
Nov 13 1997Penal Code sections 190.6 et seq. apply to this case
 
Jul 22 1998Record certified for completeness
 
Jul 27 2001Note:
  pro per habeas corpus petition denied. (see case no. S097317)
May 30 2003Counsel appointment order filed
  appointing Gilbert Gaynor to represent appellant for the direct appeal.
May 30 2003Filed:
  appellant's application for appointment of counsel (IFP form)
Jun 23 2003Date trial court delivered record to appellant's counsel
  (9,486 pp. record) (see Calif. Rules of Court, rule 39.50(c); the date of delivery is the date of mailing plus five days.)
Jun 26 2003Appellant's opening brief letter sent, due:
  1-20-2004. (pursuant to Calif. Rules of Court, rule 39.57(b))
Jul 30 2003Counsel's status report received (confidential)
  from atty Gaynor.
Oct 9 2003Counsel's status report received (confidential)
  from attorney Gaynor.
Oct 22 2003Compensation awarded counsel
  Atty Gaynor
Nov 12 2003Compensation awarded counsel
  Atty Gaynor
Dec 10 2003Counsel's status report received (confidential)
  from atty Gaynor.
Dec 22 2003Received copy of appellant's record correction motion
  Application to correct, complete and settle the record on appeal. (41 pp.)
Jan 20 2004Request for extension of time filed
  to file appellant's opening brief. (1st request)
Jan 23 2004Extension of time granted
  to 3/22/2004 to file appellant's opening brief. The court anticipates that after that date, only five further extensions totaling 300 additional days will be granted. Counsel is ordered to inform 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.
Feb 9 2004Counsel's status report received (confidential)
  from atty Gaynor.
Mar 10 2004Compensation awarded counsel
  Atty Gaynor
Mar 18 2004Request for extension of time filed
  to file appellant's opening brief. (2nd request)
Mar 19 2004Extension of time granted
  to 5/21/2004 to file appellant's opening brief. The court anticipates that after that date, only four further extensions totaling about 240 additional days will be granted. Counsel is ordered to 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.
Mar 24 2004Compensation awarded counsel
  Atty Gaynor
Mar 30 2004Record certified for accuracy
 
Apr 12 2004Counsel's status report received (confidential)
  from atty Gaynor.
May 12 2004Record on appeal filed
  clerk's transcript 23 volumes (5753 pp.) and reporter's transcript 16 volumes (3571 pp.) including material under seal; ASCII disks. Clerk's transcript includes 3271 pp. of juror questionnaires.
May 12 2004Letter sent to:
  counsel advising that the record, certified for accuracy, was filed this date.
May 21 2004Request for extension of time filed
  to file appellant's opening brief. (3rd request)
May 25 2004Extension of time granted
  to 7-20-2004 to file AOB. The court anticipates that after that date, only three further extensions totaling about 180 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 separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Jun 14 2004Counsel's status report received (confidential)
  from atty Gaynor.
Jun 15 2004Compensation awarded counsel
  Atty Garynor
Jun 30 2004Compensation awarded counsel
  Atty Gaynor
Jul 19 2004Request for extension of time filed
  to file appellant's opening brief. (4th request)
Jul 21 2004Extension of time granted
  to 9/20/2004 to file appellant's opening brief. The court anticipates that after that date, only two further extensions totaling about 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 separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Aug 9 2004Counsel's status report received (confidential)
  from atty Gaynor.
Sep 7 2004Request for extension of time filed
  to file appellant's opening brief. (5th request)
Sep 9 2004Extension of time granted
  to 11/19/2004 to file appellant's opening brief. The court anticipates that after that date, only one further extension totaling about 60 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 separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Oct 14 2004Counsel's status report received (confidential)
  from atty Gaynor.
Nov 19 2004Request for extension of time filed
  to file appellant's opening brief. (6th request)
Nov 29 2004Extension of time granted
  to 1/19/2005 to file appellant's opening brief. Extension is granted based upon counsel Gilbert Gaynor's representation that he anticipates filing that brief by 1/19/2005. After that date, no further extension will be granted.
Dec 22 2004Counsel's status report received (confidential)
  from atty Gaynor.
Jan 19 2005Request for extension of time filed
  to file appellant's opening brief. (7th request)
Jan 20 2005Extension of time granted
  to 2/18/2005 to file appellant's opening brief. based upon counsel Gilbert Gaynor's representation that he anticipates filing that brief by 2/18/2005. After that date, no further extension will be granted.
Feb 22 2005Application to file over-length brief filed
  to file appellant's opening brief. (108,643 word-387 pp. opening brief submitted under separate cover pursuant to rule 40.1(b)(3)(A).
Feb 23 2005Order filed
  Appellant's application for permission to file overlength opening brief is granted.
Feb 23 2005Appellant's opening brief filed
  (108,643 words; 387 pp.)
Feb 23 2005Respondent's brief letter sent; due:
  June 23, 2005
May 18 2005Compensation awarded counsel
  Atty Gaynor
Jun 21 2005Extension of time granted
  to 8/22/2005 to file respondent's brief.
Jul 15 2005Filed:
  Appellant's application for permission to file supplemental brief. (3,373 word brief submitted under separate cover)
Jul 27 2005Order filed
  Appellant's "Application for permission to file supplemental brief re: Miller-El v. Dretke (2005) 125 S.Ct.2317" is granted. Any response to the supplemental brief must be included in respondent's brief due on 8/22/2005.
Jul 27 2005Supplemental brief filed
  appellant's brief re: Miller-El v. Dretke (2005) 125 S.Ct. 2317. (3373 words; 13 pp.)
Aug 15 2005Request for extension of time filed
  to file respondent's brief. (2nd request)
Aug 22 2005Extension of time granted
  to 10-21-2005 to file respondent's brief. After that date, no further extension is contemplated. Extension granted based upon Deputy AG Michael Dolida's representation that he anticipates filing the brief by 10-21-2005.
Sep 2 2005Motion for access to sealed record filed
  respondent's Application for Transmittal to Respondent of Confidential Documents.
Sep 23 2005Letter sent to:
  counsel: On September 2, 2005, respondent filed an application for transmittal of confidential documents that asks this court to unseal, as to respondent only, pages 4616-4620 of the reporter's transcript, constituting the sealed transcript of the hearing on appellant's Marsden motion. (See Cal. Rules of Court, rules 12.5(f)(5), 31.2(a)(4).) On its own motion, the court is considering unsealing pages 4616-4620 of the reporter's transcript as to the public and for all purposes. (See Cal. Rules of Court, rule 12.5(f)(3).) Any party opposing such proposed unsealing must file an opposition within 10 days from this date. Any party may file a response to such an opposition within five days after the filing of the opposition.
Sep 28 2005Filed:
  Supplemental declaration of service of respondent's application for tansmittal to respondent of confidential documents.
Oct 19 2005Request for extension of time filed
  to file respondent's brief. (3rd request)
Oct 27 2005Extension of time granted
  to 12/20/2005 to file respondent's brief. Exension is granted based upon Deputy Attorney General Michael Dolida's representation that he anticipates filing that brief by 12/20/2005. After that date, no further extension will be granted.
Nov 2 2005Motion for access to sealed record granted
  Respondent's "Application for Transmittal to Respondent of Confidential Documents," filed on September 2, 2005, is granted. The Clerk of this court is directed to provide respondent with a copy of the reporter's transcript of the in camera hearing on Tuesday, September 16, 1997, before Judge James L. Long, pages 4616-4620. On the court's own motion, the Clerk of this court is directed to unseal these pages for all purposes.
Dec 21 2005Request for extension of time filed
  to file respondent's brief. (4th request)
Dec 29 2005Respondent's brief filed
  (39847 words; 141 pp.)
Dec 30 2005Extension of time granted
  to 12/30/2005 to file the respondent's brief. After that date, no further extension will be granted.. Extension is granted based upon Deputy Attorney General Michael Dolida's representation that he anticipates filing that brief by 12/30/2005.
Feb 27 2006Request for extension of time filed
  to file appellant's reply brief. (1st request)
Mar 2 2006Extension of time granted
  to April 28, 2006 to file appellant's reply brief.
Apr 28 2006Request for extension of time filed
  to file appellant's reply brief. (2nd request)
May 8 2006Filed:
  supplemental declaration in support of application for extension of time to file appellant's opening brief.
May 11 2006Extension of time granted
  to June 27, 2006 to file appellant's reply brief. After that date, only two further extensions totaling about 120 additional days are contemplated. Extension is granted based upon counsel Gilbert Gaynor's representation that he anticipates filing that brief by October 26, 2006.
Jun 27 2006Request for extension of time filed
  to file appellant's reply brief. (3rd request)
Jun 30 2006Extension of time granted
  to August 28, 2006 to file appellant's reply brief. After that date, only one further extension totaling about 60 additional days is contemplated. Extension is granted based upon counsel Gilbert Gaynor's representation that he anticipates filing that brief by October 26, 2006.
Aug 28 2006Request for extension of time filed
  to file appellant's reply brief. (4th request)
Aug 29 2006Extension of time granted
  to October 27, 2006 to file appellant's reply brief. Extension is granted based upon counsel Gilbert Gaynor's representation that he anticipates filing that brief by October 27, 2006. After that date, no further extension is contemplated.
Oct 23 2006Request for extension of time filed
  to file appellant's reply brief. (5th request)
Oct 27 2006Extension of time granted
  to December 26, 2006 to file appellant's reply brief. Extension is granted based upon counsel Gilbert Gaynor's representation that he anticipates filing that brief by December 26, 2006. After that date, no further extension is contemplated.
Dec 29 2006Appellant's reply brief filed
  (33,648 words; 120 pp.) (pursuant to Cal. Rules of Court, rule 40(b)(3)(A))
Dec 29 2006Request for judicial notice filed (AA)
  appellant's request.
Aug 29 2007Compensation awarded counsel
  Atty Gaynor
Sep 12 2007Compensation awarded counsel
  Atty Gaynor
Feb 3 2009Exhibit(s) lodged
  from superior court, People's exhibit 130 (vhs tape)
Jun 25 2009Compensation awarded counsel
  Atty Gaynor
Jan 28 2010Exhibit(s) lodged
  from superior court, Defense exhibit B-1 (vhs tape)
Jan 21 2011Oral argument letter sent
  advising counsel that the court could schedule this case for argument as early as the March calendar, to be held the week of March 7, 2011, in San Francisco. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument.
Feb 8 2011Case ordered on calendar
  to be argued Wednesday, March 9, 2011, at 9:00 a.m., in San Francisco
Feb 9 2011Justice pro tempore assigned
  Hon. Judith Meisels Ashmann-Gerst Second Appellate District, Division Two
Feb 17 2011Received:
  appearance sheet from Deputy Attorney General Michael Dolida, indicating 30 minutes for oral argument for the respondent.
Feb 18 2011Filed:
  appellant's focus issues letter and request for 45 minutes for oral argument, dated February 17, 2011.
Feb 22 2011Filed:
  proof of service for appellant's focus issues letter filed February 18, 2011.
Feb 22 2011Filed:
  respondent's focus issues letter, dated February 18, 2011.
Feb 24 2011Received:
  appearance sheet from Attorney at Law Gilbert Gaynor, indicating 45 minutes for oral argument for appellant.
Feb 25 2011Received:
  Letter from Gilbert Gaynor, Attorney at Law, dated February 24, 2011, indicating list of cases counsel intends to cite at oral argument which are not cited in the briefs.
Mar 9 2011Cause argued and submitted
 
Mar 10 2011Received:
  appellant's additional authorities letter, dated February 25, 2011. (Letter was post-marked February 25, 2011 but not received by the court until March 10, 2011.)
May 11 2011Request for judicial notice denied
  The request for judicial notice, filed on December 29, 2006, is denied.
May 18 2011Notice of forthcoming opinion posted
  To be filed Thursday, May 19, 2011 at 10 a.m.