IN THE SUPREME COURT OF CALIFORNIA
Plaintiff and Respondent,
Defendant and Appellant.
Super. Ct. No. 444550-8
A Fresno County jury convicted defendant Keone Wallace of the first
degree murder (Pen. Code, § 187),1 attempted rape (§§ 664/261, subd. (a)(2)
[formerly subd. (2)]), and attempted robbery (§ 664/211, former § 212.5, subd.
(b)) of Hazel Hamilton, and of residential burglary (§§ 459 & 460). It found true
special circumstance allegations of murder in the commission or attempted
commission of three felonies: robbery (§ 190.2, subd. (a)(17)(A), formerly subd.
(a)(17)(i)), rape (§ 190.2, subd. (a)(17)(C), formerly subd. (a)(17)(iii)), and
burglary (§ 190.2, subd. (a)(17)(G), formerly subd. (a)(17)(vii)). After a penalty
trial, the jury returned a verdict of death. The trial court denied the automatic
motion to modify the verdict (§ 190.4, subd. (e)) and sentenced defendant to
All further statutory references are to the Penal Code unless otherwise
death.2 This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment in
A. Guilt Phase
In January 1991, Hazel C. Hamilton, an 83-year-old widow, lived alone in a
house on East Madison Avenue in the City of Fresno. She had poor eyesight,
wore thick-lensed glasses, and suffered from arthritis causing her to walk with a
Eulalia Gauss lived next door to Hamilton. During the evening of January
21, 1991, Gauss heard loud noises coming from Hamilton’s house and went
outside to investigate. She noticed that Hamilton’s back bedroom window was
wide open, and she saw a man wearing dark pants and a light-colored shirt, with
something covering his hands. He appeared to be breaking things inside
Gauss awakened her husband, who telephoned police. Officers arrived at
the scene shortly after 10:00 p.m. Officer Fred Manfredi could hear what sounded
like furniture being moved and drawers being emptied inside the house, prompting
him to radio his fellow officer, Raymond Sandoval, that the intruder might still be
inside. Seeing a bent window screen on the ground outside the open bedroom
window, Manfredi went to the front of the house to investigate. The front door
was partially open and defendant was standing inside the doorway. Manfredi
announced his presence and ordered defendant to show his hands, but defendant
Imposition of determinate terms for the remaining convictions was stayed
under section 654.
turned and ran through the house. After sending a radio warning to officers
watching the rear of the house, Manfredi entered through the front with two other
At the rear of the house, Officer Sandoval and Officer Al Hernandez saw
defendant dive out the open bedroom window. The officers ordered him to the
ground, but he did not comply, so they pushed him down. Defendant struggled
until Officer Sandoval subdued him using a flashlight. The officers eventually
handcuffed defendant. Defendant said “They made me do it” several times, and
he warned the officers that “the other guys” were getting away. He added that he
“knew the lady” and “hoped that she didn’t die.”
A white T-shirt was wrapped around defendant’s head, and he wore a beige
jacket and a pair of jeans buttoned at the top only. Defendant’s belt was
unfastened. He had on unlaced blue athletic shoes, and he had covered his hands
with dirty, worn socks. What appeared to be bloodstains were visible on
defendant’s T-shirt, socks, and shoes.
Police found Hazel Hamilton lying on the floor of her home about four feet
inside the front door. She was breathing but unresponsive. Her dress was pulled
up around her waist, the crotch of her underwear was torn, and her stockings were
around her knees. She had several injuries to her head, throat, and shoulders, and
her eyes were swollen shut. Blood was on her face and dress. Her eyeglasses and
dentures were on the floor near her head. Paramedics took Hamilton to Valley
Dr. Diane Ruschke examined Hamilton and, determining her condition to
be life-threatening, had Hamilton connected to a ventilator. A brain scan revealed
massive bleeding and swelling in the brain, which Ruschke attributed to trauma.
A neurosurgeon performed emergency surgery to alleviate the pressure on the
The next day, January 22, 1991, Ruschke performed a sexual assault
examination on Hamilton, observing in the vaginal area bruising that was
consistent with forceful sexual penetration and that appeared to be between 12 and
24 hours old. No semen was detected during the examination, and sexual assault
kits for both defendant and Hamilton were negative for the presence of semen or
On January 23, 1991, Hamilton experienced Cushing’s Response,
indicating brain herniation at the base of the skull. She was removed from life
support and died.
Dr. Jerry Nelson performed an autopsy. He noted substantial blunt force
trauma to Hamilton’s upper body, with injuries that included two black eyes and
multiple bruises on her head, face, neck, and shoulders. The bruises on
Hamilton’s neck were consistent with blunt force trauma and strangulation.
Nelson determined that the cause of death was a combination of strangulation and
blunt force trauma to the head, most likely caused by a fist rather than an object
because of the absence of skull fractures.
Examination of the crime scene revealed that Hamilton’s house had been
ransacked. Dresser and cabinet drawers had been pulled out and overturned, their
contents strewn about the floor. Mattresses from two beds had been turned over,
as was a sofa cushion from a sleeper sofa in the living room. Smaller items also
were disturbed: A container of jewelry was overturned; contents of a wicker
basket were spilled onto the floor; identification cards and miscellaneous papers
from a wallet were spread about the house. An empty wallet was found in front of
a love seat in the living room.
The southwest bedroom window had been forced open, as shown by
scratches on its latch and locking mechanism and the presence of paint and wood
chips underneath. Defendant could have made three of the handprints and
fingerprints found on the window and its frame. Police found a mountain bike in
the alleyway behind Hamilton’s house.
Delia Heredia, a Department of Justice criminalist, compared the athletic
shoes defendant was wearing at the time of his arrest with photographs of shoe
impressions taken outside murder victim Hamilton’s home. Although Heredia
could not make a positive match, she stated that defendant’s left shoe was
consistent in size, sole pattern, and wear with a shoe impression near the open
bedroom window by which the intruder had entered Hamilton’s house.
Heredia also tested defendant’s and Hamilton’s clothing for the presence of
human blood. Defendant’s right shoe, the socks worn on his hands, his jeans, T-
shirt, and jacket all tested positive, with a blood type consistent with Hamilton’s.
According to Heredia, most of the blood on defendant’s clothing was transferred
or smeared from the source, rather than resulting from blood spatter. Hamilton’s
dress also tested positive for blood consistent with her blood type, which she
shared with 5 percent of the general population.
After defendant’s arrest at Hamilton’s house, Officer Sandoval transported
him to Valley Medical Center and eventually to jail. Sandoval noted that although
defendant’s breath smelled of alcohol, he did not appear to be intoxicated. At
Valley Medical Center, Dr. Thomas Utrecht treated defendant, observing
abrasions on his forehead and scalp and bruising to the right side of his chest.
When medical personnel collected defendant’s blood samples, he resisted,
requiring two officers to restrain him. Defendant also resisted Officer Sandoval’s
collection of defendant’s pubic hair samples, making offensive gestures and using
foul language. Defendant’s blood sample tested negative for drugs but positive for
alcohol, with a concentration of 0.19 percent. Ernest Lykissa, Ph. D., the director
of forensic toxicology at Pathological and Clinical Services in Fresno when the
samples were tested, estimated that defendant’s maximum blood-alcohol level at
the time of his arrest was 0.21 percent. According to Lykissa, a person who
habitually consumes alcohol can develop a tolerance to it, thereby reducing the
impairment resulting from its consumption.
At the time of his arrest, defendant lived with Latasha Rice and her cousin
in an apartment about one mile from, and on the same street as, murder victim
Hamilton’s house. Rice saw defendant between 11:00 a.m. and noon on the day
Hamilton’s house was burglarized; he did not appear to be intoxicated or under the
influence of drugs.
When defendant’s mother, Sharon Sperling, visited him in jail, he said he
did not harm Hamilton and had been beaten by police officers. Sperling later met
with Deputy District Attorney Gary Hoff. At the time of trial, Sperling could not
recall what she told Hoff, but she believed she told him that defendant had been
drinking beer and watching television at a friend’s house on the night Hamilton
Hoff testified that Sperling told him defendant had consumed beer at a
friend’s house, and when defendant was riding his bike home, he was cut off by a
police car. A second police car arrived, and defendant was beaten by police
officers. Defendant denied being at murder victim Hamilton’s house or assaulting
Defendant testified in his own behalf at trial. He said that on January 21,
1991, he awoke around 9:00 a.m. and around noon bought two 40-ounce cans of
malt liquor, which he drank at home. Around 2:00 p.m., defendant rode his
bicycle to the home of his friend Herbert Johnson, where defendant drank three or
four 16-ounce cans of malt liquor. Defendant and Johnson also shared a pint of
brandy. When defendant left Johnson’s home around 4:00 or 5:00 p.m., he was
Defendant went to the apartment of another friend, Floyd Ray, where he
drank a six-pack of malt liquor. Defendant also drank two or three bottles of
Cisco, a high-alcohol wine. Around 10:00 p.m., defendant left Ray’s apartment on
his bicycle. In front of Ray’s apartment complex, defendant happened upon three
acquaintances he knew as Andrew, “Renn,” and “Baby.” After defendant drank
more beer with the three men, they offered to buy him a drink. Defendant rode in
the bed of Renn’s truck with his bicycle. Because it was cold, defendant, who was
wearing a jacket, removed his T-shirt and wrapped it around his head, and took his
socks off his feet and put them on his hands.
Defendant believed Renn was driving to a liquor store; instead, the truck
stopped in the alley behind Hamilton’s house. Defendant stayed in the truck bed
while Andrew, Renn, and Baby went into Hamilton’s backyard. Andrew returned
to the truck and told defendant to come with him. The two then climbed through
Hamilton’s bedroom window. According to defendant, his purpose in entering the
house was to get a drink.
Defendant found himself in a wrecked bedroom and saw Hamilton on the
floor in the living room. When Hamilton reached for a telephone, Renn punched
and kicked her, causing her to fall over and hit her head on the floor. Defendant
was shocked and confused by what was happening.
When police arrived at Hamilton’s house, Andrew, Renn, and Baby were
gone. Seeing the police, defendant panicked and dove through the bedroom
window. Defendant told the police, “they’re getting away” and “they made me do
it,” referring to his three acquaintances. Defendant admitted he had lied when he
told police that he knew Hamilton.
Defendant also admitted directing abusive language towards police,
explaining that police had killed two of his friends and a cousin and twice had
beaten his younger brother for no reason. Defendant resisted efforts by police to
collect physical evidence at the hospital, he said, because one officer ridiculed
defendant’s long hair. Defendant denied ransacking or taking anything from
Hamilton’s house, and he denied striking Hamilton or attempting to rape her.
Valerie Hurd, defendant’s cousin, testified that defendant habitually drank
alcohol, including Cisco and hard liquor, but he preferred malt liquor. Ruby
Parks, girlfriend of Floyd Ray, testified that defendant was a heavy drinker but she
had never known him to be violent when intoxicated.
Defense witnesses Herbert Johnson and Floyd Ray confirmed defendant’s
account of his drinking with them earlier in the day of Hamilton’s attack.
According to Ray, defendant left Ray’s house on his bicycle around 10:00 p.m.
Ray knew defendant to be a heavy drinker who drank daily, usually to the point of
intoxication, but he denied that defendant ever became violent when drunk.
Dr. Alan Barbour, a licensed clinical laboratory analyst, testified that he
once was the forensic alcohol laboratory supervisor at Pathological and Clinical
Services in Fresno, where he was familiar with prosecution witness Ernest
Lykissa’s reputation. In Barbour’s opinion, Lykissa was not always truthful.
Barbour disagreed with Lykissa that there was any correlation between
defendant’s pattern of drinking and his blood-alcohol test result. Barbour
characterized defendant’s 0.19 percent blood-alcohol level when the blood was
drawn and tested as a “reliable” result.
Dr. Stephen Pittel, a psychologist familiar in training and experience with
substance abuse, estimated that defendant’s blood-alcohol level would have been
between 0.21 and 0.23 percent at the time of the attack on Hamilton. Pittel
testified that defendant’s tested blood-alcohol level of 0.19 indicated severe
impairment, and that his impairment would have been greater at the time of arrest.
Dr. Howard Terrell, a psychiatrist familiar with alcohol abuse, testified that
assessment of a person’s alcohol intoxication level should not be based solely on
blood-alcohol level, but also on behavior and demeanor. Terrell added that
exclusive reliance on blood-alcohol level fails to account for alcohol tolerance.
According to Terrell, a person with a high tolerance for alcohol may not be
intoxicated even with a blood-alcohol level between 0.19 and 0.21 percent. Based
on his review of materials provided by the prosecutor, Terrell concluded that
defendant had displayed such an alcohol tolerance.
Stanley Dorance, a former Department of Justice criminalist, testified as an
expert on alcohol impairment that although a person with alcohol tolerance may
not show as many signs of intoxication as a person without alcohol tolerance, the
person with alcohol tolerance nonetheless would be affected by the alcohol.
1. Prosecution case in aggravation
The prosecution presented evidence of defendant’s commission of prior
incidents of violent behavior. The first of these took place on April 7, 1989, in
Redondo Beach, Los Angeles County, when defendant brandished a .32-caliber
pistol at Marcus Robinson, threatening to shoot him. After being arrested and
while being taken to jail in the back seat of a patrol car, defendant kicked out one
of the car’s rear door windows, and kicked an officer who tried to remove him
from the car.
Two other violent incidents took place in the Fresno County Jail while
defendant was awaiting trial on this case. On October 3, 1991, through a
surveillance camera monitor, Officer Lorrie Camplin saw an inmate wearing a
white T-shirt under his jail jumpsuit strike another inmate inside the jail elevator.
When the elevator came to a stop, defendant was found to be the only inmate
wearing a white T-shirt, and he had abrasions on his knuckles.
On December 3, 1992, Officer David Martinez, while watching a
surveillance camera monitor, saw an inmate in an elevator striking another inmate.
Six officers met the elevator when it stopped on the fifth floor. Defendant was
among the eight inmates inside, four of whom were sent to the infirmary.
The prosecution also presented evidence that Officer Lawrence Daluz
found contraband — a loose razor blade and a jail-issued razor with half of the
plastic molding removed — in defendant’s jail cell. Daluz testified that razors
could be used as weapons.
The parties also stipulated to defendant’s February 1, 1989, felony
conviction in Los Angeles County for possession of cocaine for sale. (Health &
Saf. Code, § 11351.)
2. Defense case in mitigation
Andress Yancy, who was serving a 19-year state prison term for robbery,
testified that he had been a Fresno County Jail inmate and was with defendant
during the jail elevator incident on December 3, 1992. Yancy denied being struck
by defendant. He also testified that jail inmates typically used razor blades
mounted on combs to cut their hair.
Some of defendant’s family members and friends testified about his
background and upbringing. His mother, Sharon Sperling, married Harold Autrey
when defendant was two years old. During the marriage, Sperling started using
drugs. Sperling and Autrey separated when defendant was about 10. For the next
several years, Sperling stole merchandise from retail businesses and used cocaine.
Later, she was sent to state prison.
Defendant went to live with his grandparents, who ran a garment business.
While there, he lived a normal life, attending church, going fishing, and enjoying
holiday celebrations. Defendant also spent time with his grandmother’s sister.
When defendant was 14, his grandfather became ill, requiring dialysis and
eventually the amputation of a leg. At age 16, defendant moved in with a friend.
Shortly thereafter, defendant was shot and seriously injured, resulting in his use of
a colostomy bag for a month.
A friend, Victor Blackmon, testified that defendant drank all day, every
day, and often acted crazy and complained that his “brain” hurt. Defendant’s
cousin, Valerie Hurd, said that defendant drank malt liquor, starting early each
morning. Latasha Rice testified that defendant would tell her he sometimes could
not remember things that had happened when he had been drinking.
A clinical psychologist, Gretchen White, interviewed defendant and some
members of his family. She concluded that defendant had experienced “stressors”
from personal losses, such as not knowing his biological father, separation from
his stepfather, and his mother’s rejection when he went to live with his
grandparents. White said that defendant had suffered chronic depression since
adolescence. She attributed his use of alcohol to his poor coping skills.
A second clinical psychologist, Garry Bredefeld, testified to the results of
several psychological and neuropsychological tests he gave defendant. Defendant
functioned “within the borderline range of intelligence,” having an overall IQ of
77. According to Bredefeld, defendant exhibited low self-esteem, a “generalized
cerebral inefficiency,” and signs of being a high risk for suicide.
Clinical Psychologist Michael Thackrey questioned the appropriateness of
the tests Dr. Bredefeld administered to defendant, expressing the view that
defendant’s IQ of 77 was within the normal range.
Dr. Howard Terrell testified that he had tried to conduct a psychiatric
examination of defendant, but that defendant refused to participate. In
Dr. Terrell’s view, the evidence on which the defense experts had relied was
insufficient to conclude that defendant suffered from major depression, and
defendant’s complaint that his “brain hurt” likely was merely defendant’s
description of a hangover.
Recalled by the defense, Dr. Bredefeld testified that his testing of defendant
was accurate and reliable, and that there is no IQ test geared strictly toward
African-Americans, although experts in the field debate whether IQ test results are
affected by race.
II. PRETRIAL AND JURY SELECTION ISSUES
A. Alleged Improper Shackling
During a pretrial hearing, defense counsel inquired about the procedure for
restraining defendant in the courtroom. The courtroom bailiff, Deputy Sheriff
Kevin Fitzgerald, told the trial court that defendant would be shackled to a cable
installed under the defense counsel table, that the cable would be hidden by a
curtain, and that defendant would be seated before the jury entered the courtroom.
Defense counsel objected to restraining defendant, citing “psychological
reason[s],” and argued that shackling a capital defendant to the floor is
inappropriate unless that defendant has a history of escape attempts. Deputy
Fitzgerald told the court that defendant had a history of noncooperation in the
county jail, and that the list of his rules violations took up three pages. To allow
defense counsel to review this document, the court deferred a decision on the
question of shackling.
At the next court hearing, Deputy Sheriff Victor Wisemer of the Court
Services Unit gave three reasons for restraining defendant. First, the “type of case
and the gravity of the outcome” warranted extra security. Second, if defendant
were not restrained, at least four deputies would need to be in the courtroom to
guard him. Third, and the “main reason” for restraining defendant, was his
conduct in jail. According to Deputy Wisemer, defendant had 16 rules violations
in roughly two years. Five of these were for fighting with other inmates and one
was for possessing a sharp instrument.
Defense counsel renewed the objection, but the trial court found a manifest
need to restrain defendant, based on the nature of the charges and the number of
rules violations. The court indicated that the leg restraints would be concealed by
the curtain and therefore not visible to the jury, adding that defendant would be
seated before any juror came into the courtroom. Nothing in the record suggests
that the jurors knew defendant was restrained.
Defendant now contends the trial court abused its discretion by ordering
that he remain shackled throughout his trial. According to defendant, the error
violated his rights under section 688,3 the state Constitution, and the Fifth, Sixth,
Eighth, and Fourteenth Amendments to the federal Constitution.4
Section 688 reads: “No person charged with a public offense may be
subjected, before conviction, to any more restraint than is necessary for his
detention to answer the charge.”
As to this and nearly every claim on appeal, defendant asserts the alleged
error violated his constitutional rights. At trial, he failed to raise some or all of the
constitutional arguments he now advances. We nonetheless address the merits of
these contentions: “In each instance, unless otherwise indicated, it appears that
either (1) the appellate claim is of a kind (e.g., failure to instruct sua sponte;
(footnote continued on next page)
“[A] defendant cannot be subjected to physical restraints of any kind in the
courtroom while in the jury’s presence, unless there is a showing of a manifest
need for such restraints.” (People v. Duran (1976) 16 Cal.3d 282, 290-291, fn.
omitted.) But we will not overturn a trial court’s decision to restrain a defendant
absent “a showing of a manifest abuse of discretion.” (Id. at p. 293, fn. 12.) We
have said that a “ ‘ “ ‘[m]anifest need’ arises only” ’ ” when the defendant has
been unruly, has “ ‘ “announced [an] intention to escape,” ’ ” or when the
evidence shows the defendant would likely “ ‘ “ ‘disrupt the judicial process’ ” ’ ”
if left unrestrained. (People v. Seaton (2001) 26 Cal.4th 598, 651.) “ ‘ “ ‘The
imposition of physical restraints in the absence of a record showing of violence or
a threat of violence or other nonconforming conduct will be deemed to constitute
an abuse of discretion.’ ” ’ ” (Ibid.)
Here, the record shows defendant had been cited for many rules violations
while awaiting trial in the county jail, which included five jailhouse fights and
possession of illegal razors. This evidence was sufficient to support the trial
(footnote continued from previous page)
erroneous instruction affecting defendant’s substantial rights) that required no trial
court action by the defendant to preserve it, or (2) the new arguments 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. To that extent, defendant’s new
constitutional arguments are not forfeited on appeal. [Citations.] [¶] In the latter
instance, of course, rejection, on the merits, of a claim that the trial court erred on
the issue actually before that court necessarily leads to rejection of the newly
applied constitutional ‘gloss’ as well. No separate constitutional discussion is
required in such cases, and we therefore provide none.” (People v. Boyer (2006)
38 Cal.4th 412, 441, fn. 17; see also People v. Partida (2005) 37 Cal.4th 428, 433-
court’s decision to restrain defendant. (See, e.g., People v. Combs (2004) 34
Cal.4th 821, 838 [the trial court did not abuse its discretion in ordering the
defendant restrained where the evidence showed that the defendant had possessed
two shanks in jail and threatened jail deputies].)
Further, even assuming the trial court abused its discretion, defendant
suffered no possible prejudice. Determining whether or not the erroneous
imposition of restraints on a defendant was prejudicial requires us to consider the
“possible prejudice in the minds of the jurors, the affront to human dignity, the
disrespect for the entire judicial system which is incident to unjustifiable use of
physical restraints, as well as the effect such restraints have upon a defendant’s
decision to take the stand.” (People v. Duran, supra, 16 Cal.3d at p. 290.) The
first and last of these considerations are the most significant. (People v. Anderson
(2001) 25 Cal.4th 543, 596.)
Defendant admits the record contains no indication that the jurors knew he
was restrained or that they were otherwise prejudiced against him. Defendant
urges us, however, to depart from the prejudice analysis we have applied for over
30 years, and to focus instead on the psychological effects on a defendant —
specifically, mental impairment, physical pain, and obstruction of communication
with defense counsel — that result from the imposition of restraints. Even if we
were inclined to do so, defendant points to no evidence that he suffered from any
such adverse effects. Nor does defendant point us to any evidence in the record
that the restraint influenced his decisions to testify at the guilt phase and not to
testify at the penalty phase. Indeed, defendant acknowledges that the record is
silent on this point. Thus, defendant cannot demonstrate prejudice resulting from
B. Defendant’s Right To Be Present
Twice during trial, the trial court conducted proceedings in defendant’s
absence. First, on February 24, 1993, defendant was not present in court when the
prosecutor requested that William Darlington, Hamilton’s stepgrandson and a
prosecution witness, be allowed to attend the trial. After hearing briefly from
defense counsel and the prosecutor, the court stated it would not continue until
defendant was present. Thereafter, bailiffs brought defendant into the courtroom.
The court then heard further argument and ultimately granted the prosecutor’s
request to have Darlington attend the duration of the trial.
The second incident occurred on March 1, 1993, when the trial court stated
that an alternate juror was upset. The court had invited the alternate juror into
chambers for an ex parte discussion; she informed the court that she was distressed
because of her recent separation from her husband. The court said the alternate
juror indicated she was able to continue, and that if she felt she could not proceed,
she would immediately inform the court. The court then offered counsel the
opportunity to question the alternate juror, but both sides declined. Two days
later, the alternate juror concluded she was unable to proceed, and she was
excused upon joint stipulation.
Defendant now contends his right to be present in accordance with state
statutory law and the state and federal Constitutions was violated when the trial
court conducted these proceedings in his absence. The Attorney General responds
that defendant failed to preserve the issue. Defendant replies that the forfeiture
rule does not apply when a trial court meets with an alternate juror outside
counsel’s presence, and that any later objection after the meeting would have been
futile. Defendant adds that his objection to the prosecutor’s motion regarding
Darlington’s attendance throughout the trial was sufficient to preserve the issue of
defendant’s right to be present. We need not resolve this dispute, however,
because there was no violation of defendant’s right to be present.
“A criminal defendant’s right to be personally present at trial is guaranteed
by the Sixth and Fourteenth Amendments of the federal Constitution, as well as by
article I, section 15 of the California Constitution and by sections 977 and 1043 of
the California Penal Code. [Citations.] A defendant, however, ‘does not have a
right to be present at every hearing held in the course of a trial.’ [Citation.] A
defendant’s presence is required if it ‘bears a reasonable and substantial relation to
his full opportunity to defend against the charges.’ [Citation.]” (People v. Hines
(1997) 15 Cal.4th 997, 1038-1039; see also People v. Rogers (2006) 39 Cal.4th
826, 855.) “Sections 977 and 1043 do not require the defendant’s presence, or a
written waiver, unless that standard has been met. [Citations].” (People v.
Bradford (1997) 15 Cal.4th 1229, 1357.) “The defendant must show that any
violation of this right resulted in prejudice or violated the defendant’s right to a
fair and impartial trial. [Citation.]” (People v. Hines, supra, at p. 1039; see also
People v. Lucero (2000) 23 Cal.4th 692, 717.)
Here, the record shows that defendant was absent from the courtroom when
the prosecutor brought up the issue of prosecution witness Darlington attending
the trial. The record also shows, however, that the trial court waited until
defendant was brought into court, and then resumed the hearing in defendant’s
presence. Under these circumstances, we cannot say that defendant’s brief
absence from the introductory part of the hearing on the issue bore “a reasonable
and substantial relation to his full opportunity to defend against the charges.”
(People v. Hines, supra, 15 Cal.4th at p. 1039.)
We similarly find no abuse of discretion in the trial court’s brief discussion
with the alternate juror. “ ‘[T]he mere occurrence of an ex parte conversation
between a trial judge and a juror does not constitute a deprivation of any
constitutional right. The defense has no constitutional right to be present at every
interaction between a judge and a juror, nor is there a constitutional right to have a
court reporter transcribe every such communication.’ [Citation.]” (United States
v. Gagnon (1985) 470 U.S. 522, 526.) Defendant’s absence from the discussion
between the trial court and the alternate juror in no way adversely affected “his
full opportunity to defend against the charges.” (People v. Hines, supra, 15
Cal.4th at p. 1039.) Moreover, defendant has failed to explain how his attendance
during either proceeding would have altered the outcome of his trial and
accordingly has not demonstrated any prejudice. (Ibid.; see also People v. Lucero,
supra, 23 Cal.4th at p. 717.)
C. Right of Hamilton’s Stepgrandson to Attend Trial
During a pretrial hearing, over defense objection, the trial court granted the
prosecutor’s motion under former section 1102.6 to allow prosecution witness
William Darlington, murder victim Hamilton’s stepgrandson, to attend the trial.
That former Penal Code section provided for crime victims to be present at a
criminal trial unless, in the view of the trial court, the victim’s presence “would
pose a substantial risk of influencing or affecting the content of any testimony” at
the trial. (Former § 1102.6, subd. (a) added by Stats. 1986, ch. 1273, § 2, p. 4448,
and repealed by Stats. 1995, ch. 332, § 2, p. 1824.) The former statute defined
“victim” to include “up to two members of the victim’s immediate family who are
actual or potential witnesses” if the victim herself was “unable to attend” (former
§ 1102.6, subd. (e)), always the case with a murder victim.
Defendant now challenges the trial court’s ruling on several bases. First,
defendant argues, a “stepgrandson” is not within the term “immediate family” as
set forth in the statute. Second, defendant claims that Darlington’s presence
allowed him to hear the prosecutor’s opening statement setting forth the
prosecution’s theory of the case and also exposed him to the testimony of other
witnesses, enabling Darlington to tailor his own testimony to that of those other
witnesses. Finally, defendant argues that Darlington’s constant presence in the
courtroom was a silent form of improper victim-impact evidence that was not
subject to cross-examination. According to defendant, allowing Darlington to
attend the trial violated defendant’s rights under the Fifth, Sixth, Eighth, and
Fourteenth Amendments to the federal Constitution.
We review a trial court’s decision to allow a victim’s family member to
attend the trial for an abuse of discretion. (People v. Griffin (2004) 33 Cal.4th
536, 573-574.) We find none here.
As noted earlier, former section 1102.6 provided for an immediate family
member of an unavailable crime victim to attend a trial unless that person’s presence
posed a substantial risk of influencing or affecting the content of any testimony.
That section, however, did not define the term “immediate family.” Nor does the
legislative history reveal the intended meaning of that term. The language of the
statute itself, however, made it clear that someone in Darlington’s position had a
right to attend the trial notwithstanding that he was testifying as a witness. (See
former § 1102.6, subd. (e) [“as used in this section, ‘victim’ means . . . (2) in the
event that the victim is unable to attend the trial, up to two members of the victim’s
immediate family who are actual or potential witnesses” (italics added)].)
Other sections of the Penal Code provide some guidance on the meaning of
the term “immediate family.” For instance, section 3605, which addresses the
selection, invitation, and attendance of witnesses to an execution, defines
“immediate family” as “those persons who are related by blood, adoption, or
marriage, within the second degree of consanguinity or affinity.” (§ 3605, subd.
(b)(2).) Section 3043.3, which relates to section 3043, the statute that addresses a
victim’s right to appear and comment at a state prisoner’s parole eligibility
hearing, defines “immediate family” as the “victim’s spouse, parent, grandparent,
brother, sister, and children or grandchildren who are related by blood, marriage,
Under both of these sections, Darlington is within the definition of
“immediate family” because he was victim Hamilton’s grandchild (relation of the
second degree) by marriage (affinity).5 There is no indication that the Legislature
intended a narrower definition of “immediate family” in former section 1102.6.
Darlington’s status as a member of the victim’s immediate family however,
does not end our inquiry. We must also examine the trial court’s ruling on the
basis of the record of the proceedings before it when the ruling was made (People
v. Griffin, supra, 33 Cal.4th at p. 574), and determine whether the trial court
abused its discretion in concluding that Darlington’s presence would not pose a
substantial risk that he would tailor his testimony to that of other witnesses, or that
he would cause other witnesses to tailor their testimony to his. Defendant offers
no evidence that would suggest Darlington’s presence posed such a risk, and upon
our independent review of the relevant portions of the record, we find none.
Moreover, later events at trial do not suggest that Darlington tailored his
testimony to conform to what he had learned from being present at trial, but
instead show that he simply testified to matters he was likely to know based on
personal knowledge. Darlington testified briefly on two occasions during the guilt
phase of the trial. During his first appearance, he testified that Hamilton married
his grandfather in 1957, and that during the years immediately before her death
See, e.g., Code of Civil Procedure section 17, subdivision (b)(9): “The
word ‘affinity,’ when applied to the marriage relation, signifies the connection
existing in consequence of marriage, between each of the married persons and the
blood relatives of the other.”
Darlington visited Hamilton at her home, went on trips with her, and spoke with
her on the phone. Through this contact, Darlington knew some of Hamilton’s
habits. For instance, Hamilton kept her front door locked with a key in the lock on
the inside of the door, and she typically went to bed between 10:30 and 11:00 p.m.
after activating the house alarm.
During Darlington’s second brief appearance on the witness stand, he
testified that Hamilton had visual difficulty. Specifically, he recalled being in the
country with Hamilton, and that she could not see nearby raccoons until they were
right in front of her. He also testified that because of problems with her knees, she
had difficulty maintaining her balance.
Thus, the record reveals that Darlington had the opportunity to personally
observe Hamilton and to describe her health and habits from his independent
knowledge of her, and defendant does not point to any evidence to establish
For the reasons set forth above, the trial court did not abuse its discretion in
allowing Darlington to attend defendant’s trial.
D. Alleged Error in Ruling on Defense Challenges for Cause
A trial court may discharge a juror whose views on the death penalty
“would ‘prevent or substantially impair the performance of his duties as a juror in
accordance with his instructions and oath.’ ” (Wainwright v. Witt (1985) 469 U.S.
412, 424.) Defendant contends the trial court erroneously refused to excuse seven
“pro-death” jurors for cause, claiming that their “support for capital punishment
was so insistent” that they were “substantially impaired in their ability to perform
their duties in accordance with the law and [their] oath.” As a result, defendant
claims a denial of his right to a fair and impartial jury under the Sixth Amendment
to the federal Constitution.
This contention is not cognizable on appeal. (See People v. Beames (2007)
40 Cal.4th 907, 924; see also People v. Avila (2006) 38 Cal.4th 491, 539.) Jury
selection in this case took place in 1993, before our decision in People v.
Crittenden (1994) 9 Cal.4th 83, 121, footnote 4, made clear that a defendant must
express dissatisfaction with the final jury before it is sworn, so that rule does not
apply here. Defendant nonetheless has forfeited this issue because he did not
exhaust all of his peremptory challenges, nor does he make any attempt to justify
his failure to do so. (People v. Beames, supra, at p. 924; People v. Avila, supra, at
In any event, defendant fails to show prejudice. “ ‘To prevail on such a
claim, defendant must demonstrate that the court’s rulings affected his right to a
fair and impartial jury.’ [Citation.]” (People v. Guerra (2006) 37 Cal.4th 1067,
1099.) Here, none of the seven purportedly “pro-death” jurors served on
defendant’s jury. Thus, the trial court’s failure to excuse these prospective jurors
could not possibly have affected the fairness of the jury that decided defendant’s
case. (People v. Weaver (2001) 26 Cal.4th 876, 913; Ross v. Oklahoma (1988)
487 U.S. 81, 86.)
Nor, contrary to defendant, did the trial court’s refusal to excuse the seven
prospective jurors “pollute the jury pool,” “alter the random order,” or “force” the
defense “to make further challenges for cause or exercise peremptory challenges
which could have been saved for more productive use.” (See People v. Yeoman
(2003) 31 Cal.4th 93, 114 [loss of a peremptory challenge is a ground for relief
“ ‘ “only if the defendant exhausts all peremptory challenges and an incompetent
juror is forced upon him” ’ ”]; see also Ross v. Oklahoma, supra, 487 U.S. at p. 88
[rejecting the notion that the loss of a peremptory challenge constitutes a violation
of the constitutional right to an impartial jury].)
III. GUILT PHASE ISSUES
A. Alleged Bailiff Misconduct
At some point during the trial proceedings, defendant asked defense
counsel for a piece of paper and a pen. Upon receipt of these items, defendant
wrote a note and gave it to defense counsel, who shared its contents with
defendant’s mother. The courtroom bailiff, Deputy Sheriff Kevin Fitzgerald, told
defense counsel that her actions were “illegal.” Shortly thereafter, defense counsel
asked the court to replace Fitzgerald with a different bailiff because counsel was
“uncomfortable” with Fitzgerald’s presence, “unhappy with the atmosphere in
[the] courtroom because of” him, and “afraid for [her] client.” According to
counsel, Fitzgerald made the trial proceedings “intolerable.” The trial court
denied the motion, acknowledging, however, that communications between
attorney and client are “privileged and confidential and are no business of the
Defendant now contends Deputy Fitzgerald’s conduct infringed upon his
attorney-client privilege, and that the trial court erred in denying the motion to
replace him, thereby violating defendant’s rights to due process and a fair trial
under the Fifth, Sixth, and Fourteenth Amendments, and his right to heightened
reliability under the Eighth Amendment. We disagree.
In support of his claim of infringement of the attorney-client privilege,
defendant compares his situation to that in Morrow v. Superior Court (1994) 30
Cal.App.4th 1252, in which the prosecutor told her investigator to eavesdrop on a
conversation between the defendant and his attorney in the courtroom’s holding
cell. The Court of Appeal there concluded: “Where the prosecutor uses the
courtroom as a place to eavesdrop upon privileged attorney-client
communications, which results in the acquisition of confidential information, the
conscience of the court is shocked and dismissal is the appropriate remedy.”
(Morrow v. Superior Court, supra, 30 Cal.App.4th at p. 1255.)
Morrow is distinguishable in two significant respects. First, unlike the
investigator in Morrow, Deputy Fitzgerald did not intentionally put himself in a
position to “eavesdrop” upon communications protected by the attorney-client
privilege. Second, nothing in the record suggests that Fitzgerald acquired any
confidential information. Therefore, we cannot say that Fitzgerald’s actions
infringed upon defendant’s attorney-client privilege.
With respect to the trial court’s decision not to replace Deputy Fitzgerald,
trial courts possess broad power to control their courtrooms and maintain order
and security. (Code Civ. Proc., § 128, subd. (a)(1)-(5); People v. Woodward
(1992) 4 Cal.4th 376, 385.) The trial court chastised Fitzgerald for not bringing to
the court’s attention any questions about the note passing rather than addressing
the issue himself, but then expressed confidence in Fitzgerald’s abilities to
maintain order in the courtroom and a clear preference that he remain. We discern
no abuse of discretion in the ruling. Defendant’s claims of state law error and
constitutional violations are meritless.
B. Miscellaneous Evidentiary Issues
Defendant asserts error in certain evidentiary rulings. We discuss these
Hamilton’s physical condition
Over defendant’s objections of lack of relevance (Evid. Code, § 210) and
more prejudicial than probative (id., § 352), the trial court allowed the prosecutor
to introduce evidence of victim Hamilton’s poor eyesight and mobility problems.
Defendant now contends the trial court’s ruling was in error and also asserts that
admission of this evidence violated his United States Constitution Fifth, Sixth,
Eighth, and Fourteenth Amendment rights to a fair trial, due process of law, and a
reliable penalty determination. We disagree.
On appeal, we review for an abuse of discretion a trial court’s admission of
evidence as relevant. (People v. Kipp (2001) 26 Cal.4th 1100, 1123; People v.
Pollock (2004) 32 Cal.4th 1153, 1171.) None appears.
Evidence is relevant if it has “any tendency in reason to prove or disprove
any disputed fact that is of consequence to the determination of the action.” (Evid.
Code, § 210; People v. Kipp, supra, 26 Cal.4th at p. 1123.) “ ‘The test of
relevance is whether the evidence tends “ ‘logically, naturally, and by reasonable
inference’ to establish material facts such as identity, intent, or motive.” ’ ”
(People v. Guerra, supra, 37 Cal.4th at p. 1117.) Here, the trial court found that
evidence of Hamilton’s physical condition was relevant to defendant’s intent, to
Hamilton’s ability to recognize and resist an intruder, and to the number of
intruders who were in Hamilton’s house. Defendant challenges the court’s
reasoning, in particular the notion that Hamilton’s poor eyesight and limited
mobility were relevant to the number of intruders in her house.
Even assuming the trial court abused its discretion in admitting this
evidence, defendant suffered no possible prejudice. The jury already knew that
Hamilton was a frail 83-year-old woman, and thus the evidence regarding her poor
eyesight and use of a cane would not have inflamed the jury.
Further, the trial court did not abuse its discretion in admitting the evidence
over defendant’s Evidence Code section 352 objection. That section affords a trial
court discretion to exclude evidence “if its probative value is substantially
outweighed by the probability that its admission will (a) necessitate undue
consumption of time or (b) create substantial danger of undue prejudice, of
confusing the issues, or of misleading the jury.” (Evid. Code, § 352.)
Witness Bryant’s testimony was brief and unsensational; thus, its probative
value was not substantially outweighed by concerns of undue consumption of time
or risk of prejudice to defendant. Further, given that Bryant was the first witness
to testify about Hamilton’s physical condition, there was no danger that this
evidence would be cumulative.
Witness Darlington also testified briefly about Hamilton’s physical
condition. His testimony followed that of Bryant and Yula Nagy, Hamilton’s
daughter, whose testimony about her mother’s physical condition was limited to
the statement that she “couldn’t be without [her eyeglasses.]” Darlington testified
that Hamilton appeared to have difficulty with her eyesight and was unable to see
a raccoon at a distance of 10 feet. Darlington also testified that Hamilton had
difficulty with mobility and that whenever she arose from a seated position, it took
her some time to get her bearings before she was stable enough to move.
Darlington’s testimony, like Bryant’s, was brief and matter-of-fact.
Although Darlington was the third prosecution witness to refer to Hamilton’s
physical condition, we cannot say the trial court abused its broad discretion under
Evidence Code section 352 in allowing his testimony. Further, the trial court’s
decision to sustain defendant’s Evidence Code section 352 objection to the
proposed testimony of Dr. Newel, an eye doctor, whose proffered testimony would
have included that Hamilton “wore thick spectacles, had damaged one cornea so
she could really only see out of her right eye and was significantly visually
handicapped” demonstrates the court’s mindfulness of the potential prejudicial
effect of overemphasizing Hamilton’s physical condition. Therefore, we conclude
the trial court properly exercised its discretion in overruling defendant’s Evidence
Code section 352 objection to the evidence of Hamilton’s physical ailments.
2. Evidence that Hamilton slept with open bedroom window
During the defense case-in-chief, defendant proposed to call Verdie Smith,
murder victim Hamilton’s next-door neighbor for over 20 years, to testify about
Hamilton’s custom and habits. According to defense counsel’s offer of proof,
Smith would testify that Hamilton told Smith of her need for fresh air, that
Hamilton “always” slept with the window slightly open, that Smith believed that
the house alarm was set up so that a slightly ajar window would not trip the alarm,
and that on one occasion Smith saw Hamilton’s bedroom window open.
During the foundational hearing held outside the jury’s presence, Smith
testified that Hamilton told her that she kept her window open “some” and that
Smith observed it open “some” on one occasion in the daytime. Although
conceding she may have told the district attorney during an interview that
Hamilton always slept with the window open, Smith testified: “. . . I don’t know
that she did. [¶] . . . [¶] I may have said that, but I don’t see the window at night.
I don’t know.” Smith further admitted that her statement that the window could
open without tripping the alarm was not based on personal knowledge, but on
what Hamilton told her. The prosecutor objected to Smith’s proposed testimony
on the grounds that it was inadmissible character evidence as well as hearsay. The
court sustained the prosecutor’s hearsay objection, without further argument from
Defendant now claims the trial court erred in excluding Smith’s testimony,
thereby violating his right to present a defense under both the state and federal
Constitutions. At trial, however, defendant did not explain the relevance or
purpose for the proffered evidence. Defendant’s failure to do so precludes him
from challenging on appeal the exclusion of the evidence. (Evid. Code, § 354,
subd. (a); People v. Morrison (2004) 34 Cal.4th 698, 711 [“ ‘As a condition
precedent to challenging the exclusion of proffered testimony, Evidence Code
section 354, subdivision (a), requires the proponent make known to the court the
“substance, purpose, and relevance of the excluded evidence . . . .” ’ [Citation.]”)
Further, any error in excluding the evidence was harmless. (People v. Watson
(1956) 46 Cal.2d 818, 836 [state law error is prejudicial only if it is reasonably
probable that a result more favorable to defendant would have been reached absent
Defendant states that the defense theory was that Hamilton slept with the
window open, a theory that rendered the use of force to enter her house
unnecessary. According to defendant, this “theory was important, for entry into an
open window is a far cry from carrying a tool to the scene in order to force open a
window.” The crime of burglary, however, requires only an entry with the
requisite intent; the entry need not be accomplished by force. (§ 459; see 2 Witkin
& Epstein, Cal. Criminal Law (3d ed. 2000) Crimes Against Property, § 120,
Defendant further contends that entry into Hamilton’s house through an
open window would preclude a finding of an intent to steal or commit another
felony necessary to the crime of burglary. In addition to being illogical, this
contention is contrary to the defense theory of the case — that defendant arrived at
Hamilton’s house intoxicated and entered the house through a window to obtain
another alcoholic beverage. Even crediting defendant’s claim, his own theory
supports the conclusion that he entered the home to steal liquor. Under these
circumstances, therefore, we cannot say that the trial court’s error in excluding
Smith’s testimony was prejudicial.
3. Alleged chain of custody violation regarding defendant’s socks
Officer Raymond Sandoval testified that when defendant was arrested, he
was wearing socks on his hands. The socks were “old and worn,” and defendant’s
fingers protruded through holes in the socks. Sandoval noticed a “red substance
similar to blood” on the socks. Sandoval identified a pair of socks as the ones he
removed from defendant’s hands at the time of his arrest. As offered into
evidence, each sock was in an individually labeled envelope fastened by a clasp at
the top. In turn, these envelopes, which bore the Fresno Police Department case
number for defendant’s case, were contained within another envelope, which the
prosecutor unsealed with scissors in the courtroom.
Defense counsel asserted that the prosecutor failed to present an adequate
chain of custody for the socks. Counsel objected that the outer envelope
containing the two individually labeled envelopes was dated 1993, whereas the
individual envelopes were dated June 19, 1991.
Outside the jury’s presence, the trial court questioned Officer Sandoval,
who explained that he recognized the socks as those he processed in the
department’s property room, that he put the socks in containers, but not in the
envelopes being used at trial. Sandoval stated that the socks were in the same
condition as when he observed them at the time of defendant’s arrest, except that a
small “sample” had been cut from each sock. Under questioning by defense
counsel, Sandoval testified that he did not initial or otherwise mark any of the
envelopes, and that he was informed by members of the property room staff that
the evidence had been repackaged several times. Sandoval admitted that the
absence of markings on the envelopes to establish chain of custody violated the
standard operating procedure for the Fresno Police Department’s property room.
The trial court overruled defendant’s objection, noting Officer Sandoval’s
testimony that he recognized the socks and that except for the removal of a sample
for analysis, the socks were in the same condition as at the time of defendant’s
the trial court abused its discretion in admitting
the socks into evidence because there was no recorded chain of custody
information from the time of defendant’s arrest to the placement of the socks in
individual envelopes, or for the period between June 19, 1991 (the date on the
individual envelopes) and 1993 (the date on the outer envelope). Although the
record of the chain of custody in this case was far from perfect, we disagree with
defendant that these shortcomings rendered the admission of the socks an abuse of
the trial court’s discretion. (See People v. Williams (1997) 16 Cal.4th 153, 196.)
“People v. Riser (1956) 47 Cal.2d 566 sets forth the rules for establishing
chain of custody: ‘The burden on the party offering the evidence is to show to the
satisfaction of the trial court that, taking all the circumstances into account
including the ease or difficulty with which the particular evidence could have been
altered, it is reasonably certain that there was no alteration. [¶] The requirement
of reasonable certainty is not met when some vital link in the chain of possession
is not accounted for, because then it is as likely as not that the evidence analyzed
was not the evidence originally received. Left to such speculation the court must
exclude the evidence. [Citations.] Conversely, when it is the barest speculation
that there was tampering, it is proper to admit the evidence and let what doubt
remains go to its weight.’ [Citations.]” (People v. Diaz (1992) 3 Cal.4th 495,
Here, defendant does not suggest that the socks were tampered with, he
merely asserts it was “as likely as not” that the socks tested by the prosecution’s
criminalist were not the same ones confiscated from defendant at the time of his
arrest. He ignores, however, Sandoval’s positive identification of the socks at
trial. Under these circumstances, the trial court acted within its discretion in
admitting the socks into evidence.
4. Admission of expert testimony of criminalist Delia Heredia
the trial court erred by overruling a foundational
objection to the qualifications of criminalist Delia Heredia, who ultimately
testified as an expert witness regarding blood transfer and blood spatter evidence.
According to defendant, the trial court’s error allowed a “patently unqualified
witness . . . to render devastating opinions on blood evidence which allowed the
prosecutor to make a much more powerful closing argument.”
At the time of trial, Heredia had been a criminalist in the Fresno Regional
Laboratory of the California Department of Justice for six years. Heredia had a
bachelor’s degree from Fresno State University in biology, with a chemistry
minor. She received training from the California Criminalistics Institute and from
a doctor with the Metropolitan Police Laboratory in London, England.
Under questioning by defense counsel, Heredia revealed that she had 40
hours of training at the California Criminalistics Institute, including a course on
bloodstain interpretation, and that she also had received more than 40 hours of
training on that topic for the Department of Justice. Heredia further noted that she
had read many books and articles on bloodstain interpretation, and that she kept
current with her reading on the subject. Although Heredia had never qualified
previously as a courtroom expert on bloodstain interpretation, she had made over
20 determinations differentiating between blood transfers and blood spatters at
Over defense objection, the trial court allowed Heredia to testify regarding
blood transfer and spatter evidence. Heredia testified that most of the bloodstains
— which were consistent with Hamilton’s blood type and inconsistent with
defendant’s — found on defendant’s clothing appeared to be transfers or smears,
rather than spatters. A blood transfer or smear indicates that the perpetrator and
victim somehow made contact to effectuate the transfer of blood from one surface
to another, whereas a blood spatter indicates that the blood left one surface and
was airborne until landing on the second surface.
“We are required to uphold the trial judge’s ruling on the question of an
expert’s qualifications absent an abuse of discretion. [Citation.] Such abuse of
discretion will be found only where ‘ “the evidence shows that a witness clearly
lacks qualification as an expert . . . .” ’ [Citation.]” (People v. Chavez (1985) 39
Cal.3d 823, 828.)
Here, the trial court did not abuse its discretion in finding Heredia qualified
to testify on bloodstain interpretation. Given Heredia’s education and her training
and practical experience in the Department of Justice’s Fresno Regional
Laboratory, we cannot say that Heredia “clearly lack[ed]” qualifications as an
expert. (See, e.g., People v. Bolin (1998) 18 Cal.4th 297, 322 [witness with
educational background in biochemistry and serology and training as a criminalist
for 13 years, including attending and giving seminars in blood spatter analysis and
crime scene investigation, was qualified to testify as blood spatter expert]; People
v. Clark (1993) 5 Cal.4th 950, 1018-1019 [no abuse of discretion in allowing
testimony of blood spatter expert where witness “had: (1) attended lectures and
training seminars on the subject of blood dynamics in both California and Oregon;
(2) read relevant literature; (3) conducted relevant experiments; [fn] and (4) visited
crime scenes where ‘blood-spatter’ tests were conducted”].) For the same reasons
that allowing Heredia’s testimony did not violate state law, it did not render
defendant’s trial fundamentally unfair in violation of the federal Constitution.
Moreover, contrary to defendant’s characterization, the prosecutor made
only a brief reference to Heredia’s testimony during closing argument. Even
assuming Heredia was not qualified to render an opinion on bloodstain
interpretation, defendant suffered no possible prejudice as a result of the
C. Denial of Defense Motion for Mistrial
During the guilt phase, the prosecutor presented the testimony of forensic
toxicologist Ernest Lykissa, Ph.D., to establish that, despite a high blood-alcohol
level, defendant was capable of forming the requisite intent to commit the crimes.
Lykissa testified about drug and alcohol analysis of blood samples taken from
defendant after his arrest. At that time, Lykissa was the director of forensic
toxicology for Pathological and Clinical Services in the Fresno area. The test
results were negative for various controlled substances but positive for alcohol,
with a measured level of 0.19 percent. Lykissa testified that defendant’s
maximum blood-alcohol level at the time of arrest was 0.21 percent. He also
testified that a person’s level of impairment from alcohol ingestion varies, and that
habitual alcohol use causes alcohol tolerance, which may reduce the degree of
On cross-examination, defense counsel attacked Lykissa’s credibility.
Lykissa stated he had consulted with Forensic Toxicology Associates in Pasadena
and had used the firm as an employment reference. He denied ever being accused
of falsifying reports or documents he claimed to have authored, and he denied
being aware that individuals in the scientific community considered his reputation
tarnished. He also denied asking Dr. Alan Barbour, a subordinate at Pathological
and Clinical Services whose employment Lykissa claimed he ultimately
terminated, to endorse his state application to become a certified forensic alcohol
During defense counsel’s recross-examination of Lykissa, this exchange
“[Defense Counsel:] What is your general reputation within the Fresno
area, if you know it, among the scientific individuals who are similarly situated as
you in regards to truth or veracity?
“[Lykissa:] I believe I’m the only — when I was in the Fresno area I was
the only forensic toxicologist of the doctorate level in the Fresno area. I think
Mr. [Forensic Analyst William] Posey, as I said, he has been always on the other
side of the bench whenever I testified in court.
“[Defense Counsel:] But I’m not asking about Mr. Posey right now. I’m
asking about your reputation.
“[Lykissa:] Sir, you are the judge of my reputation, not myself.
“[Defense Counsel:] Let me rephrase the question.
“[Lykissa:] Why don’t you tell me my reputation.
“[Defense Counsel:] I’ll ask you the question. Are you aware there were
other individuals who believe that you have on a routine basis falsified reports and
“[Prosecutor:] Speculation and relevance as to belief of other individuals.
“[Court:] Well, basically it’s not the — it is not phrased on the basis of
reputation in the community. The objection is sustained.
“[Defense Counsel:] Are you aware there are individuals within the
scientific community who believe that your reputation is tarnished?
“[Lykissa:] Sir, I bet you there are enough individuals in Fresno that
believe your reputation is tarnished.
“[Court:] That wasn’t the question Doctor.
“[Lykissa:] I don’t know that.
“[Court:] Let’s answer the question that’s asked of you, sir.
“[Lykissa:] No, no, sir.
“[Defense Counsel:] Have you ever been accused of falsifying a report?
“[Lykissa:] Never, sir.
“[Defense Counsel:] Have you ever been accused of falsifying documents
which you indicate you have authored?
“[Lykissa:] Never, sir.”
After redirect examination by the prosecutor, this exchange took place
during defense counsel’s further recross-examination:
“[Defense counsel:] Assuming approximately 10:23 p.m. was
approximately sixty-two minutes before [the time defendant’s blood was drawn],
can you tell me what the known blood alcohol level [for] my client would be?
“[Lykissa] As I said using the burn-off rate — using the burn-off rate, a .02
I will place him at very safely at .21. I can use the Boston and .03 so let’s make it
“[Defense Counsel:] So you’re saying that’s a safe assumption that at
10:23 he was at approximately a .22?
“[Lykissa:] Would I say so, yes.
“[Defense Counsel:] So that means that at 10:23 he was higher than he was
“[Lykissa:] Yeah, because there was no alcohol consumed in the hour —
I’m assuming that there was no alcohol consumed between 10:23 and 11:25.
“[Defense Counsel:] I’m sorry. Your first assumption is that there was no
alcohol consumed between the period of time; is that correct?
“[Lykissa:] 10:23 and 11:25.
“[Defense Counsel:] And any other assumptions?
“[Lykissa:] Yeah. Also he wasn’t drinking while he was committing his
“[Defense Counsel:] You’re assuming he committed a crime.
“[Lykissa:] I don’t know.
“[Defense Counsel:] He wasn’t drinking during the period of activity —
“[Lykissa:] We wouldn’t be here if he didn’t commit something.
“[Court:] Oh, just a minute. The jury is admonished. Listen. Listen. I run
the courtroom according to the rules of evidence in the State of California. Your
comment is out-of-order, sir.
“[Lykissa:] I’m sorry.
“[Court:] You ought to know better. And the jury’s admonished to
disregard the comment that the witness made.
“[Lykissa:] I’m sorry, your Honor.
“[Court:] This is not a game. It’s not a place of amusement, it is a place of
intellectual inquiry and the search for truth. And we don’t get arguments from
witnesses, we get them from the attorneys based on evidence that is properly
received in the courtroom. So just answer the questions is all we ask. And be
responsive and not entertaining.”
After excusing the jury for lunch, the trial court continued:
“[Court:] I don’t know, Dr. Lykissa, whether you’ve been testifying in
Justice Courts or Municipal Courts but for you to state that the defendant, if he
didn’t do something he wouldn’t be here, that is not an opinion of a toxicologist, it
is someone — an opinion of someone who wants to be a smart aleck.
“[Lykissa:] I apologize, your Honor.
“[Court:] Well, you ought to know better. Maybe you’ve been testifying
— I thought you’ve been testifying in Federal Courts and so forth where you
generally knew the rules, but —
“[Lykissa:] I thought I was responding — I’m sorry, your Honor.
“[Court:] Well, you respond —
“[Lykissa:] You’re right.”
Defense counsel then moved for a mistrial. The trial court denied the
motion, stating, “I think that I acted so quickly and so promptly upon hearing . . .
the witness’ response, and with such clarity with regard to the inappropriateness of
the witness’ comment not even waiting for an objection because that type of
response from an expert witness who should know better is so inappropriate that
the court acted on its own motion, and I’m sure that the jury clearly got the court’s
view and that it was inappropriate and struck the comment and admonished the
jury to disregard it. We’re not in a Justice Court, this is a very serious case and
while everyone testifies with their own personality and their own way they should
stick to their field of expertise and not get into argument on behalf of the party
calling them. [¶] The court feels that the promptness  of the admonition clearly
conveyed the impropriety of the comment to the jury and I have every reason to
believe that they were disregarded in accordance with the admonition and
instruction of the court and I think that under the circumstances that is certainly
adequate to cause the jury to disregard the comment.”
During the lunch recess, Alternate Juror R.W. asked the court to be excused
from jury service, stating: “I don’t feel that I can any longer be a competent juror
since I have been biased by the actions of the defense attorney and the expert
witness. This has been a dog-and-pony show all morning.” Alternate Juror R.W.
added, “I could not give an unbiased opinion any longer because this is obviously
a show between the two of these witnesses who — it was carried over from
another trial some place and it’s coming into this courtroom.” Alternate Juror
R.W. said he had “sacrificed enough to be here for what I am and now the
unprofessional action of these two people has made me a little angry.” The trial
court found “good cause” and thus excused the alternate juror from further service.
Before leaving, Alternate Juror R.W. said he had not shared his feelings with other
jurors and did not hear any of them discuss what had transpired during defense
counsel’s cross-examination of Lykissa.
After the lunch recess, Dr. Lykissa returned to the stand. On further
redirect examination, this exchange took place:
“[Prosecutor:] Dr. Lykissa, in your career, is there anything that you have
participated in that has affected the career of this person by the name of Posey?
“[Lykissa:] Most definitely, yes, sir.
“[Prosecutor:] And what is that?
“[Lykissa:] I feel that in my capacity as a forensic toxicologist here in
Fresno and also in . . . Tulare County having worked with analyzing most of the
specimens that were being produced by the various law enforcement agencies in
these two counties, including Merced and some of the northern San Francisco
areas, I found myself in a conflict of business interest with Mr. Posey. And at the
same time I have found myself on numerous occasions in an adversarial position
with Mr. Posey. I have spoken with nothing but respect about the gentleman and
some of the insinuations that were brought into this court though the incentives are
very clear to me — I find him very offensive and maybe my response, my
immature and unwarranted response created the scene before the break for which I
apologize to all of you present with the extreme prejudice or due to the fact that
some attacks to my credibility as a scientist were brought into this courtroom.”
Defendant now contends the trial court’s failure to grant the defense
mistrial motion “perverted the presumption of innocence and undermined the
burden of proof.” According to defendant, the trial court’s admonition was
insufficient to cure any prejudice that resulted from Lykissa’s “outrageous
misconduct.” As proof, defendant points to Alternate Juror R.W.’s request to be
excused after witnessing the exchange between Lykissa and defense counsel. We
reject this contention.
In reviewing rulings on motions for mistrial, we apply the deferential abuse
of discretion standard. (People v. McLain (1988) 46 Cal.3d 97, 113.) “A mistrial
should be granted if the court is apprised of prejudice that it judges incurable by
admonition or instruction. [Citation.] Whether a particular incident is incurably
prejudicial is by its nature a speculative matter, and the trial court is vested with
considerable discretion in ruling on mistrial motions. [Citation.]” (People v.
Haskett (1982) 30 Cal.3d 841, 854.)
Here, the trial court did not abuse its discretion in denying defendant’s
motion for a mistrial. Although the exchanges between defense counsel and
Lykissa resulted in the court’s good cause excusal of one alternate juror, that
alternate juror neither shared his feelings with any of the seated or alternate jurors
nor heard any of them discuss the behavior he found so offensive. The trial
court’s admonition to the jury was stern and immediate, and it occurred before
defense counsel even had an opportunity to object to Lykissa’s inappropriate
comments. Lykissa apologized for his behavior three times before the jury —
twice immediately after his improper reference to defendant’s guilt and a third
time when he returned to the witness stand after the noon recess. Under these
circumstances, the trial court properly exercised its discretion in denying
defendant’s motion for mistrial.
D. Refusal to Allow Impeachment of Prosecution Witness Ernest
As noted above, the prosecution called Lykissa to prove that defendant’s
high blood-alcohol level did not preclude him from forming the requisite intent to
commit the charged crimes. Defense counsel sought to impeach Lykissa with the
testimony of Dr. Alan Barbour, Lykissa’s former colleague. Outside the jury’s
presence, Barbour testified that when he and Lykissa were colleagues in the same
laboratory, Lykissa submitted, without Barbour’s knowledge, an application for
certification by the state as a forensic alcohol analyst. Lykissa’s application
required Barbour’s signature, as the person responsible for forensic alcohol
analysis, and that of Dr. Jerry Nelson, the forensic alcohol laboratory
administrator. Barbour explained that the California Department of Health
returned one of the forms from Lykissa’s application, along with a letter
requesting further documentation of his experience. Barbour testified that Lykissa
added a line on the application indicating he had experience as an analyst at
Forensic Toxicology Associates in Pasadena. Barbour said he called the owner
and administrator of that laboratory, who told Barbour that although she knew
Lykissa, he had never been involved in forensic alcohol analysis at the facility.
Barbour refused to sign Lykissa’s application, because he “could not in good
conscience” vouch for Lykissa’s qualifications under penalty of perjury.
The trial court sustained the prosecutor’s Evidence Code section 352
objection to testimony explaining why Barbour did not sign Lykissa’s application
and what he learned in his attempt to verify Lykissa’s employment with Forensic
Toxicology Associates in Pasadena, ruling that allowing evidence on such “an
incidental and very collateral matter” would unduly consume time.
Before the jury, Barbour testified Lykissa was not licensed to perform
forensic alcohol analysis. He also said he had discovered Lykissa’s
representations in another case to be untrue, and he expressed an opinion that
Lykissa does not always tell the truth. Finally, Barbour denied having been fired
from Pathological and Clinical Services, explaining that he left because of a
reduction in work force.
Defendant now claims the trial court’s ruling limiting Barbour’s testimony
to impeach Lykissa violated his Sixth and Fourteenth Amendment rights to
confrontation, to present a defense, and to due process of law. Defendant argues
that because Lykissa was “a central figure” in the prosecutor’s strategy to nullify
the defense theory of the case — that defendant was so intoxicated at the time of
the homicide that he did not have the requisite intent to commit the crimes, and
that the crimes were committed by an acquaintance without defendant’s consent
— he should have been given wide latitude to probe Lykissa’s veracity. Further,
defendant claims that because of the trial court’s limitation of Barbour’s
testimony, the jury was free to dismiss the defense attempt to impeach Barbour as
Barbour’s personal grudge against Lykissa for having fired him.
We review for abuse of discretion the trial court’s ruling sustaining the
prosecutor’s Evidence Code section 352 objection to Barbour’s proposed
testimony. (People v. Pollock, supra, 32 Cal.4th at p. 1171.) We find none here.
The trial court did not prevent Barbour from stating his opinion that
Lykissa was not always truthful, from contradicting Lykissa’s account that
Barbour was fired from Pathological and Clinical Services, or from offering an
alternate explanation for his departure. Barbour’s testimony, therefore, achieved
precisely what defendant wanted — it called into question Lykissa’s reputation for
veracity. Under these circumstances, the trial court properly exercised its
discretion under Evidence Code section 352 and did not violate defendant’s
constitutional rights in limiting Barbour’s testimony.
E. Alleged Prosecutorial Misconduct
Defendant claims several instances of prejudicial misconduct by the
prosecutor in violation of his constitutional rights to a fair trial and due process
under the Sixth and Fourteenth Amendments of the United States Constitution.
As we explained in People v. Earp (1999) 20 Cal.4th 826, on claims of
prosecutorial misconduct our state law standards differ from those under the
federal Constitution. With respect to the latter, conduct by the prosecutor
constitutes prosecutorial misconduct only if it “ ‘ “ ‘so infect[s] the trial with
unfairness as to make the resulting conviction a denial of due process.’ ” ’ ”
(People v. Earp, supra, at p. 858; Darden v. Wainwright (1986) 477 U.S. 168,
181; Donnelly v. DeChristoforo (1974) 416 U.S. 637, 642; accord, People v.
Morales (2001) 25 Cal.4th 34, 44.) By contrast, our state law considers it
misconduct when a prosecutor uses “ ‘ “ ‘deceptive or reprehensible methods to
attempt to persuade either the court or the jury.’ ” ’ ” (People v. Earp, supra, at
p. 858; accord, People v. Morales, supra, at p. 44; People v. Espinoza (1992) 3
Cal.4th 806, 820; People v. Price (1991) 1 Cal.4th 324, 447.) One such means is
“eliciting or attempting to elicit inadmissible evidence” in defiance of a court
order. (People v. Crew (2003) 31 Cal.4th 822, 839.) “A defendant’s conviction
will not be reversed for prosecutorial misconduct” that violates state law, however,
“unless it is reasonably probable that a result more favorable to the defendant
would have been reached without the misconduct.” (Ibid.)
Defendant cites as instances of prosecutorial misconduct certain questions by
the prosecutor, including the cross-examination of defendant and defense expert
witnesses Pittel and Barbour, and certain comments and behavior during trial. We
have considered these contentions both singly and together and conclude that they
did not “ ‘ “ ‘so infect the trial with unfairness as to make the resulting
conviction a denial of due process’ ” ’ ” in violation of the federal Constitution.
(People v. Earp, supra, 20 Cal.4th at p. 858; Darden v. Wainwright, supra, 477
U.S. at p. 181; Donnelly v. DeChristoforo, supra, 416 U.S. at p. 642.) We now
consider whether the prosecutor’s conduct constituted prejudicial misconduct
under state law. We conclude it did not, as explained below.
Defendant contends the prosecutor’s cross-examination of certain witnesses
placed inadmissible material before the jury. With respect to the cross-
examination of defendant, one claim is that in asking him to review a copy of a
defense investigator’s report, the prosecutor improperly exposed the jury to
hearsay information in the report. For example, the prosecutor asked whether the
exhibit refreshed defendant’s recollection that when defendant “left Floyd’s
[house] for the last time that night[,] that [Floyd] followed [defendant] out.” The
trial court sustained the defense objection and the prosecutor rephrased the
question. The crux of defendant’s claim is that the prosecutor defied a court order
in referring in his questioning of defendant to the contents of the defense
investigator’s report. We agree this was misconduct. (See People v. Crew, supra,
31 Cal.4th 822, 839.) Defendant further claims that the prosecutor asked
argumentative questions and on four separate occasions improperly commented on
defendant’s answers with phrases such as “Really” or “I see.” On the facts of this
case, however, no reasonable probability exists that without the objectionable
comments or inclusion of improper material in the prosecutor’s questioning of
defendant the jury would have reached a guilt phase verdict more favorable to
We now turn to defendant’s claim of prosecutorial misconduct in
questioning defense expert Pittel, who testified on direct examination about
defendant’s intoxication when arrested for the murder of Hamilton. On cross-
examination, Pittel testified that defendant’s obstreperous behavior at the time of
his arrest was evidence of intoxication. When the prosecutor asked whether this
behavior “impressed” Pittel, the trial court directed the prosecutor to inquire about
Pittel’s opinions, not his impressions. After the trial court sustained a defense
objection that the prosecutor’s rephrasing of the question “suggest[ed] facts  not
in evidence,” the prosecutor rephrased his question as a hypothetical, asking Pittel
to assume that defendant had fought with police on other occasions, and then
inquiring whether that would affect his opinion of defendant’s intoxication at the
time of arrest. The trial court overruled defendant’s objection to this rephrased
question, and Pittel responded that the assumed facts would not alter his earlier
Defendant now contends this questioning was prosecutorial misconduct that
served no purpose other than suggesting to the jury that he had previously fought
with police. We disagree. Once Pittel expressed the opinion that defendant’s
actions when arrested were evidence of his intoxication, the prosecutor was
entitled to ask whether Pittel’s opinion would be the same if defendant had
previously engaged in the same sort of violent conduct when not intoxicated. In
any event, defendant suffered no possible prejudice.
With respect to defense expert Barbour, defendant points out that the trial
court sustained a defense relevancy objection to evidence that a portion of
defendant’s blood sample taken on the night of his arrest had been released to the
defense for testing. The parties then stipulated, and the jury was advised, that the
blood sample was not consumed by the prosecution’s testing. Defendant contends
that the prosecutor committed misconduct by violating the trial court’s ruling in
asking defense expert Barbour whether some of defendant’s blood sample had
been “released for independent analysis.” Barbour answered that the blood sample
was released to “one Art Warfield,” a defense investigator. Defense counsel
objected, and the trial court excused the jury. Counsel then argued that the
question exceeded the scope of direct examination and was contrary to the blood-
sample stipulation. The prosecutor asserted that the stipulation only went to
whether any blood sample remained after the initial testing, and that the question
was appropriate because the defense had attacked the credibility of the
prosecutor’s blood-sample analyst but had not offered any evidence of a different
blood analysis. The trial court ruled that the prosecutor’s question improperly
sought defense work product, and the prosecutor dropped the matter. Assuming
the prosecutor’s question of defense witness Barbour was misconduct, and that the
defense has adequately preserved this issue for appeal, no prejudice appears. It
was not reasonably probable that in the absence of Barbour’s answer the jury
would have reached a different guilt phase verdict in this case.
Defendant also claims the prosecutor “yawned” during the defense opening
statement and cross-examination. When defense counsel objected on this ground,
the trial court responded that it had not observed any yawning or other behavior by
the prosecutor that was “inappropriate.” On this record, we cannot conclude that
the prosecutor engaged in conduct that was a “ ‘ “ ‘deceptive or reprehensible
method to attempt to persuade . . . the jury.’ ” ’ ” (People v. Earp, supra, 20
Cal.4th at p. 858.)
Nor do we discern misconduct in the prosecutor’s comment (“That’s fine,
Judge”) after the trial court sustained a defense objection. When defense counsel
objected to this comment as “self-serving” and “improper,” the trial court
disagreed, characterizing the comment as the equivalent of the prosecutor saying
he would rephrase his question. Nor was it prejudicial misconduct for the
prosecutor to describe a witness as “the Court’s expert,” when the trial court
immediately interrupted, stating that the court itself had no “experts.”
Finally, no prejudicial misconduct occurred during the testimony of
prosecution witness Eulalia Gauss, who was murder victim Hamilton’s next-door
neighbor. Gauss testified that she had made notes on a coupon about what she saw
on the night of the murder. When the prosecutor asked Gauss whether she still
had the notes, she removed them from her purse. Defendant contends the
witness’s “dramatic search for the evidence” was a “hoax,” staged by the
prosecutor for “dramatic” effect. But on defense cross-examination Gauss
testified that the prosecutor had not asked her to bring the notes to court.
Defendant acknowledges that the prosecution supplied the defense with a copy of
the notes on February 23, 1993, the day before Gauss testified, but he contends
this too was improper because the prosecutor’s investigator testified he obtained
the notes from Gauss 19 days earlier, on February 5. Notably, defendant never
mentions bringing to the trial court’s attention the prosecution’s delay in providing
the defense with the notes. In any event, assuming defendant has preserved this
claim, delay in providing Gauss’s notes to defendant does not amount to a
deceptive or reprehensible method of attempting to persuade either the court or the
jury, and thus does not amount to prosecutorial misconduct.
F. Alleged Guilt Phase Instructional Error
1. CALJIC No. 2.52
At the prosecutor’s request, and without objection, the trial court instructed
the jury with a modified version of CALJIC No. 2.52, which told the jury it could
infer consciousness of guilt from flight after a crime.6 Defendant now contends
this was error because he was arrested at the crime scene and, accordingly, there
could be no flight.7 We disagree.
“Whenever the prosecution relies on evidence of flight as tending to show a
defendant’s guilt, the trial court must instruct the jury substantially in this
language: ‘The flight of a person immediately after the commission of a crime, or
after he is accused of a crime that has been committed, is not sufficient in itself to
establish his guilt, but is a fact which, if proved, the jury may consider in deciding
his guilt or innocence. The weight to which such circumstance is entitled is a
matter for the jury to determine.’ [Citation.] In this context, flight ‘requires
neither the physical act of running nor the reaching of a faraway haven’ but it does
The instruction stated: “The flight of a person, if any, immediately after the
commission of a crime, or after he is accused of a crime, is not sufficient in itself
to establish his guilt, but is a fact which, if proved, may be considered by you in
the light of all other proved facts in deciding the question of his guilt or innocence.
Whether or not evidence of flight shows [a] consciousness of guilt, and the
significance, if any, to be attached to such a circumstance . . . are matters for your
The Attorney General contends this argument is forfeited because
defendant failed to object at trial. Section 1259, however, permits appellate
review of claims of instructional error affecting a defendant’s substantial rights.
(People v. Prieto (2003) 30 Cal.4th 226, 247; see People v. Benavides (2005) 35
Cal.4th 69, 100.) Therefore, we may assess this claim on its merits.
require ‘a purpose to avoid being observed or arrested.’ [Citations.] ‘Mere return
to familiar environs from the scene of an alleged crime does not warrant an
inference of consciousness of guilt [citations], but the circumstances of departure
from the crime scene may sometimes do so.’ [Citations.]” (People v. Jurado
(2006) 38 Cal.4th 72, 126, italics omitted.)
Because neither running away nor reaching a “faraway haven” is necessary
to establish flight, defendant is wrong that his arrest at the crime scene means
there could have been no flight. When Fresno police officers arrived at the crime
scene, Officer Manfredi saw defendant attempting to leave through the front door
of victim Hamilton’s house. When Manfredi announced the police presence,
defendant turned and ran through the house, with Manfredi and another officer
giving chase. Manfredi and a third officer, who was outside the house, saw
defendant dive through a window. When the officers outside the house then tried
to stop defendant, he resisted.
These circumstances were more than sufficient to support an inference that
defendant was trying to escape, from which the jury could reasonably infer a
consciousness of guilt. Therefore, the trial court properly instructed the jury on
2. Alleged misreading of instructions
the trial court prejudicially erred by misreading
instructions to the jury, and thereby violated the Fifth, Sixth, Eighth, and
Fourteenth Amendments to the United States Constitution. We discuss these
Defendant argues that in instructing the jury with CALJIC No. 14.50 (1990
rev.) [Burglary — Defined], modified to reflect the specific definition of
residential burglary, the trial court improperly eliminated the distinction between
first and second degree burglary. We disagree.
As read by the court, that instruction was: “Every person who enters the —
any inhabited — inhabited dwelling with the specific intent to steal, take, and
carry away the personal property of another of any value and with the further
specific intent to deprive the owner permanently of such property is guilty of the
crime of burglary, a violation of Penal Code section 459. [¶] It is immaterial
whether the intent with which the act — it is immaterial whether the intent with
which the entry was made was thereafter carried out. [¶] In order to prove such
crime each of the following elements must be proved: [¶] that a person entered an
inhabited dwelling house — it should be entered a building. At the time of the
entry such person had the specific intent to steal, take, and carry away someone
else’s property, and intended to deprive the owner permanently of such property.”
The court then instructed the jury with CALJIC No. 14.51 (1990 rev.) in
these words: “If you should find the defendant guilty of burglary, you must
determine the degree thereof and state the degree in your verdict. There are two
degrees of burglary. Every burglary of an inhabited dwelling house is burglary of
the first degree. All other kinds of burglary are of the second degree.”
In a later discussion on this subject outside the presence of the jury, the trial
court told counsel, “[t]here is no possible way there could be any other degree . . .
other than burglary of the first degree.” Defense counsel agreed that “it’s either
first degree . . . burglary or nothing” and that “[t]here is no theory for second
The court then clarified certain instructions for the jury. After excusing the
jury, the court stated for the record the results of an unreported bench conference,
that “under the facts of this case” a jury determination on the degree of the
burglary was unnecessary. The court added that because a jury determination of
degree was unnecessary, the verdict forms regarding burglary were amended to
reflect “burglary of the first degree.”
“When considering a challenge to a jury instruction, we do not view the
instruction in artificial isolation but rather in the context of the overall charge.
[Citation.] For ambiguous instructions, the test is whether there is a reasonable
likelihood that the jury misunderstood and misapplied the instruction. [Citation.]”
(People v. Mayfield (1997) 14 Cal.4th 668, 777.) Here, there is no reasonable
likelihood that the jury misunderstood or misapplied the instruction.
CALJIC No. 14.50 (as modified) told the jury that burglary required entry
into a building with the requisite intent to take and permanently deprive the
rightful owner of personal property. CALJIC No. 14.51 told the jury that burglary
of an inhabited dwelling house is first degree burglary and all other burglaries
were of the second degree. The jury returned a signed preprinted verdict form on
count two finding defendant guilty of burglary of an inhabited dwelling. That
verdict form indicated that burglary of an inhabited dwelling was first degree
burglary. Thus, the verdict form did “state” the degree of burglary in that the jury
would have found defendant not guilty of burglary if it did not agree with the
description of burglary as printed on the form. Moreover, any error in instructing
the jury with CALJIC No. 14.51 was harmless, because “[a]t most, the instruction
was superfluous.” (People v. Crew, supra, 31 Cal.4th at p. 849.)
Defendant also contends that in instructing the jury with CALJIC No. 2.51
[Motive], the trial court “omitted the word ‘motive’ from the first sentence, and
connected the remainder of the instruction to an instruction on mental state,
resulting in a nearly incomprehensible string of words.” The instruction as read by
the court stated: “You have also been instructed on the issue of other intent and
knowledge and — which constitutes — which is an element of aiding and abetting
and unless such intent and mental state exists, as you’ve previously been
instructed — that status has not been established or is not an element of the crime
charge [sic] and need not be shown. However, you may consider motive or lack
of motive as a circumstance in this case. Presence of motive may tend to establish
guilt, absence of motive may tend to establish innocence. You will, therefore,
give its presence or absence as the case may be the weight to which you find it
Defendant claims the trial court’s instruction was erroneous and prejudicial
because the jury did not have the written instructions until the last day of
deliberations. (People v. Osband (1996) 13 Cal.4th 622, 687-688 [trial court’s
error in misstating instructions was harmless when jurors had before them six
correct copies of the written version of the instructions when they began
We find no prejudicial error in the trial court’s instruction. Contrary to
defendant’s claim, the jurors had a copy of the correct version of CALJIC No.
2.51 throughout their deliberations. We presume the jury was guided by the
correct, written version of CALJIC No. 2.51. (People v. Osband, supra, 13
Cal.4th at p. 688.) Any error the trial court committed with respect to instructing
with CALJIC No. 2.51, therefore, was harmless.
Alleged Insufficiency of Evidence
Defendant contends his attempted rape and attempted robbery convictions
must be reversed, and the attempted rape-murder and attempted robbery-murder
special-circumstances findings vacated, because the prosecution failed to present
substantial evidence that defendant attempted to rape Hamilton or that he formed
the intent to steal before or during, rather than after, he beat Hamilton. The
absence of this evidence, defendant argues, renders the burglary-murder special
circumstance invalid, because if defendant did not enter Hamilton’s residence to
commit theft or rape, there is no independent felony to provide a foundation for
the burglary-murder special circumstance. We disagree.
“To determine the sufficiency of the evidence to support a conviction, an
appellate court reviews the entire record in the light most favorable to the
prosecution to determine whether it contains evidence that is reasonable, credible,
and of solid value, from which a rational trier of fact could find the defendant
guilty beyond a reasonable doubt.” (People v. Kipp, supra, 26 Cal.4th at p. 1128;
see also People v. Mayfield, supra, 14 Cal.4th at pp. 790-791 [same standard of
review applies to determine the sufficiency of the evidence to support a special
circumstance finding].) “Where, as here, the jury’s findings rest to some degree
upon circumstantial evidence, we must decide whether the circumstances
reasonably justify those findings, ‘but our opinion that the circumstances also
might reasonably be reconciled with a contrary finding’ does not render the
evidence insubstantial.” (People v. Earp, supra, 20 Cal.4th at pp. 887-888.)
“An attempt to commit a crime consists of two elements: a specific intent
to commit the crime, and a direct but ineffectual act done toward its commission.”
(§ 21a.) Forcible rape is an act of sexual intercourse accomplished with a person
not the spouse of the perpetrator against the person’s will by means of force or
violence. (§ 261, subd. (a)(2).) Robbery is “the felonious taking of personal
property in the possession of another, from his person or immediate presence, and
against his will, accomplished by means of force or fear.” (§ 211.) The intent to
steal must be formed either before or during the commission of the act of force.
(People v. Kipp, supra, 26 Cal.4th at p. 1128; see also People v. Koontz (2002) 27
Cal.4th 1041, 1080; People v. Frye (1998) 18 Cal.4th 894, 956.) Burglary
requires an entry into a specified structure with the intent to commit theft or any
felony. (§ 459; People v. Horning (2004) 34 Cal.4th 871, 903; People v. Davis
(1998) 18 Cal.4th 712, 723-724, fn. 7.)
Under the felony-murder rule, a murder “committed in the perpetration of,
or attempt to perpetrate” one of several enumerated felonies, including robbery,
rape, and burglary is first degree murder. (§ 189.) The robbery-murder, rape-
murder, and burglary-murder special circumstances apply to a murder “committed
while the defendant was engaged in . . . the commission of, [or] attempted
commission of” robbery, rape, and burglary, respectively. (§ 190.2, subd.
(a)(17)(A), (C), (G).) “[T]o prove a felony-murder special-circumstance
allegation, the prosecution must show that the defendant had an independent
purpose for the commission of the felony, that is, the commission of the felony
was not merely incidental to an intended murder.” (People v. Mendoza (2000) 24
Cal.4th 130, 182.)
Here, the prosecution’s theory was that defendant broke into Hamilton’s
house with the intent to steal money, and that once inside, he attempted to rape
Hamilton and he beat her severely. In support, the prosecution presented evidence
that defendant entered the house by forcing open a bedroom window, and that
Hamilton’s house was ransacked.
Regarding the attempted rape, the prosecution presented evidence that
Hamilton was found unconscious on the floor of her residence, naked below the
waist. When police encountered defendant at Hamilton’s house, his belt was
unfastened, and his pants were buttoned only at the top.
Hamilton was transported to a hospital where a sexual assault examination
was performed 15 hours and 32 minutes after her arrival. The examining doctor
noticed bruising at the vaginal opening, measuring approximately one square
centimeter, which could have resulted from a penis’s forceful entrance into
Hamilton’s vagina. The injury was between 12 and 24 hours old. Although no
sperm was detected during the examination, Hamilton’s genital area was washed
twice before the sexual assault examination was performed.
Based on this evidence, a rational jury could find beyond a reasonable
doubt that defendant entered the house with the intent to steal (thus committing
burglary), and that he beat Hamilton to the point of incapacitation to facilitate the
intended theft before ransacking the house (thus committing attempted robbery).
Defendant, however, argues that the evidence also could suggest it was only after
Hamilton was beaten into unconsciousness that defendant formed the specific
intent to steal. The existence of this possibility, however, does not render the
evidence insufficient. (People v. Earp, supra, 20 Cal.4th at pp. 887-888.)
Further, a rational jury could find beyond a reasonable doubt that defendant
attempted to rape Hamilton. In challenging the sufficiency of the evidence of
attempted rape, defendant first argues that the lack of sperm or seminal fluid on
Hamilton indicates insufficient evidence of attempted rape. Ejaculation, however,
is not an element of rape; all that is required is “sexual penetration, however
slight.” (§ 263.) Moreover, the absence of sperm or seminal fluid easily may be
explained as a result of the cleansing of Hamilton’s genitalia twice before the
sexual assault examination was performed. Defendant also asserts that the doctor
who performed the sexual assault examination could not say whether Hamilton
had been raped. The doctor’s actual testimony, however, reveals only that she was
unwilling to state with medical certainty that a rape had occurred because she
personally did not observe it. Finally, defendant relies on the testimony of the
pathologist who performed Hamilton’s autopsy that her exterior genital area
showed no sign of trauma. The pathologist, however, was unaware that Hamilton
may have been the victim of a sexual assault, so he did not perform a vaginal
We conclude that substantial evidence supports not only defendant’s
convictions for attempted rape and attempted robbery, but also the jury’s findings
on the attempted rape-murder, attempted robbery-murder, and burglary-murder
special circumstance allegations.
IV. PENALTY PHASE ISSUES
A. Alleged Improper Admission of Aggravating Evidence
Defendant claims the trial court erred by admitting evidence of defendant’s
criminal activity during three separate incidents that involved the use or attempted
use of force or violence or the express or implied threat to use force or violence as
aggravation under factor (b) of section 190.3. Evidence of actual or threatened
violent criminal activity “that would allow a rational trier of fact to find the
existence of such activity beyond a reasonable doubt” is admissible under factor
(b). (People v. Griffin, supra, 33 Cal.4th at p. 584.) Such evidence must involve
actual, attempted, or threatened force or violence against a person, and not merely
to property. (People v. Boyd (1985) 38 Cal.3d 762, 776.) Although a trial court
lacks discretion to exclude all factor (b) evidence on the ground it is inflammatory
or lacking in probative value, it retains its traditional discretion to exclude specific
evidence if it is misleading, cumulative, or unduly prejudicial. (People v. Box
(2000) 23 Cal.4th 1153, 1200-1201.)
Before admitting evidence of defendant’s criminal activity under section
190.3, factor (b), the trial court conducted a preliminary inquiry into its
admissibility. (See People v. Phillips (1985) 41 Cal.3d 29, 72, fn. 25.) We
conclude the trial court properly exercised its discretion in admitting this evidence.
1. Redondo Beach incident
Outside the presence of the jury, Redondo Beach Police Officer Phillip
Keenan testified that in the late hours of April 7, 1989, at the Redondo Beach Pier
where he was interviewing two men, Marcus Robinson and Derrick Green,
defendant and two other men walked by, and defendant made a derogatory
statement. Later, as Robinson and Green were leaving the pier’s parking lot,
Robinson told Officer Keenan that the man who made the derogatory remark had
pointed a gun at Robinson. According to Keenan, Robinson’s description of the
clothes worn by the gunman — a white T-shirt and green pants — matched the
clothes defendant wore that evening. Immediately thereafter, Keenan stopped
defendant and found a loaded gun in his car.
Defendant resisted arrest, and once in the patrol car, banged his head on the
Plexiglas that separated the front and rear areas of the vehicle, gnawed and bit the
seat, and kicked at the rear door window on the driver’s side, shattering it. When
police removed defendant from the patrol car, he kicked one of the arresting
Defendant objected to the admission of the Redondo Beach incident on the
grounds that the evidence was insufficient to identify defendant as the person who
pulled a gun on Robinson at the pier, and that evidence of defendant’s resisting
arrest (§ 148) would be more prejudicial than probative. The trial court allowed
the evidence of defendant’s brandishing of the firearm and resisting arrest, but
disallowed evidence that defendant bit the patrol car’s upholstery.
Defendant now claims the trial court abused its discretion by allowing this
evidence in aggravation. We disagree.
“When testimony regarding the identity of the defendant as the perpetrator
of the prior criminal act is equivocal, that circumstance affects the credibility of
the witness, not the admissibility of his or her testimony. The trial court does not
abuse its discretion if, ‘[v]iewing the totality of the evidence presented, a rational
jury could conclude that defendant was the one’ who committed the act.
[Citation.]” (People v. Smithey (1999) 20 Cal.4th 936, 991.)
That standard is met here with respect to the evidence of defendant
brandishing a firearm. Although at the foundational hearing Robinson could not
identify defendant, Officer Keenan testified that Robinson told him at the time of
the incident that the person who pulled the gun on him was the same person who
made the derogatory statement earlier that evening, and Keenan identified that
person as defendant. Further, Keenan found a loaded handgun in defendant’s car.
Moreover, as the trial court noted, defendant pleaded guilty to carrying a loaded
firearm in public (§ 12031, subd. (a)) arising out of this incident. Under these
circumstances, the trial court did not abuse its discretion in admitting the evidence.
With respect to the evidence of defendant’s resisting arrest, we have said
that “when the prosecution has evidence of conduct by the defendant that [is
admissible under section 190.3, factor (b)], evidence of the surrounding
circumstances is admissible to give context to the episode, even though the
surrounding circumstances include other criminal activity that would not be
admissible by itself. [Citation.]” (People v. Kirkpatrick (1994) 7 Cal.4th 988,
That is the situation here. Under these circumstances, the trial court did not
abuse its discretion in admitting evidence of defendant’s resisting arrest.
2. Possession of razors in jail
Outside the presence of the jury, Fresno County Correctional Officer
Lawrence Daluz testified that while searching defendant’s cell in July 1991 he
found a bare razor blade and a plastic razor that had been altered to expose about
half of the blade. These items were considered contraband because of their altered
condition, which facilitated their use as weapons. Daluz explained that a bare
razor blade could be affixed to an object, such as a toothbrush, to create a weapon.
Fresno County Correctional Officer Gary Tatum testified that defendant
tried to excuse his possession of the razors by stating he used them to cut the hair
of other African American inmates. But Tatum disbelieved this explanation
because the razors used by other inmates to cut hair did not have the plastic broken
to expose the blades.
Defendant objected to the admission of his possession of razors in jail as
not constituting a violation of the Penal Code. The trial court disagreed,
concluding that a bare razor blade may be considered a deadly weapon within the
meaning of section 4574.8
trial court ruling was an abuse of discretion. We
People v. Gutierrez (2002) 28 Cal.4th 1083, we addressed a defendant’s
challenge to the prosecution’s introduction under section 190.3, factor (b), of
evidence that during pretrial custody he had possessed six loose razor blades and
two safety razor heads containing blades. During the search that led to the
discovery of those items, the defendant threatened to kill a deputy. We said the
evidence of the defendant’s possession of the items and their alteration, in
violation of jailhouse rules, also constituted a violation of section 4574. (People v.
Gutierrez, supra, 28 Cal.4th at p. 1152.) We concluded that the defendant’s
“possession of the razor blades for use as deadly weapons was validly considered
as evidence in aggravation under section 190.3, factor (b), as it constituted
‘criminal activity by the defendant which involved the use or attempted use of
force or violence or the express or implied threat to use force or violence.’ ” (Id.
at p. 1153; see also People v. Tuilaepa (1992) 4 Cal.4th 569, 589.)
Defendant acknowledges our decision in Gutierrez, but he argues it is
distinguishable because the defendant there “made a threat to kill a jailer.” We are
Section 4574 provides, in pertinent part, “any person who, while lawfully
confined in a jail . . . possesses therein any . . . deadly weapon, . . . is guilty of a
felony . . . .”
not persuaded. As we have previously explained, “mere possession of a
potentially dangerous weapon in custody involves an implied threat of violence
. . . .” (People v. Martinez (2003) 31 Cal.4th 673, 697.) The circumstances of
defendant’s possession of the contraband, particularly when viewed together with
his overall conduct while in custody — which included five rules violations for
fighting — lead us to conclude that the trial court did not abuse its discretion in
admitting the evidence of defendant’s razor possession under section 190.3, factor
3. Fight in jail elevator
Outside the presence of the jury, Fresno County Correctional Officer Lorrie
Camplin testified that on October 3, 1991, she saw on a jail video monitor a fight
in the jail elevator, during which one inmate struck another “several times.”
Camplin said there were at least six inmates in the elevator and described the
aggressor as wearing a white T-shirt.
Camplin’s fellow correctional officer, Ronald Rye, who met the elevator as
it arrived on the floor, found that defendant was the only inmate in the elevator
wearing a white T-shirt and that he had abrasions on his knuckles.
Defendant now claims the trial court abused its discretion in overruling a
defense objection to this evidence. We disagree. From the testimony of Officers
Camplin and Rye, a rational trier of fact could find the existence of violent activity
by defendant beyond a reasonable doubt. (See People v. Griffin, supra, 33 Cal.4th
at pp. 584-585.)
We also reject defendant’s contention that the jail’s failure to preserve the
videotape showing the fight violated his right to due process. Due process does
not impose upon law enforcement “an undifferentiated and absolute duty to retain
and to preserve all material that might be of conceivable evidentiary significance
in a particular prosecution.” (Arizona v. Youngblood (1988) 488 U.S. 51, 58.)
Instead, a failure to preserve potentially useful evidence will rise to the level of a
due process violation only if the defendant shows bad faith on the part of law
enforcement. (Ibid.) Here, there was no such showing.
B. Alleged Intimidation of Jury Foreperson by Defense Witness
On April 7, 1993, the jury foreperson informed the court of an incident in
the hallway involving Valerie Hurd, defendant’s cousin who had testified on his
behalf earlier in the penalty phase, and Hurd’s friend, Kelley Massoyan. One of
these women looked at the foreperson and said: “He’s innocent. He’s innocent.
Always will be.” The two women then laughed. The foreperson said she “felt a
little bit intimidated” by the encounter, but that it would not affect her ability to be
fair and impartial. She added that she could put the incident aside and decide the
case on the evidence and instructions.
Questioned by defense counsel, the foreperson denied feeling threatened by
the incident. She was “bothered” that she could not get away from the women,
and she said it was clear they intended her to hear what they had to say. Asked by
defense counsel if there was anything about the incident that would prejudice her
against defendant, the foreperson replied: “Absolutely not.” The foreperson also
admitted having told another juror that some people “made some comments” to
her, but denied that she had revealed their contents.
The court also questioned Valerie Hurd, who claimed the jury foreperson
“butted in” on a conversation she was having with Massoyan about another case.
Hurd stated that she said to Massoyan, “I feel he’s innocent,” and surmised the
foreperson thought Hurd was referring to defendant.
The trial court denied defendant’s motion for a mistrial,9 noting the
foreperson confirmed the incident would not affect her ability to be fair and
impartial or her ability to base her decision on the evidence and instructions.
Defendant contends the trial court’s ruling was not only state law error, but also
violated his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to
the federal Constitution. We disagree.
In reviewing rulings on motions for mistrial, we apply the deferential abuse
of discretion standard. (People v. McLain, supra, 46 Cal.3d at p. 113.) “A
mistrial should be granted if the court is apprised of prejudice that it judges
incurable by admonition or instruction. [Citation.] Whether a particular incident
is incurably prejudicial is by its nature a speculative matter, and the trial court is
vested with considerable discretion in ruling on mistrial motions. [Citation.]”
(People v. Haskett, supra, 30 Cal.3d at p. 854.)
Here, the trial court did not abuse its discretion in denying defendant’s
motion for a mistrial. The jury foreperson said the incident did not prejudice her
against defendant and would not affect her ability to be fair and impartial or to
follow the court’s instructions. Because the court did not abuse its discretion in
denying the mistrial motion, the ruling did not deny defendant his federal
C. Alleged Error With Respect to Prosecution Rebuttal
1. Psychiatric evaluation of defendant
At the penalty phase, defendant offered the testimony of Clinical
Psychologists Gretchen White and Garry Bredefeld. White testified that she
Defendant explains that at the time of the mistrial motion, there were no
remaining alternate jurors, so a penalty phase mistrial was the only possible
performed a “psychosocial evaluation” of defendant, which she explained as
“looking into the individual’s background . . . constructing a biography of the
individual . . . with particular emphasis to psychological themes or patterns that
may have been particularly significant in the person’s psychological
development.” To perform her evaluation, White interviewed defendant and some
of his relatives and friends, and reviewed various records, including defendant’s
medical and school records, his mother’s correctional records, and investigator’s
White testified that defendant experienced “numerous” and “significant”
“stressors” throughout his childhood and adolescence that greatly affected his
development and yielded long-term effects. White grouped the “stressors” into
four primary categories. The first involved the many losses defendant experienced
throughout his life. The second was psychological abuse defendant experienced,
the third was school failure, and the fourth was the effect on defendant of growing
up in a violent environment. White testified that defendant’s ability to cope with
these stressors was “not very good” and that he used alcohol as an escape at an
early age. White also indicated that the stressors had increased over time, and that
on the day before Hamilton was killed, defendant was involved in an altercation
with his brother, during which his brother pulled a knife on him.
Although White was not asked to diagnose defendant, she testified that he
was “significantly depressed” and that his depression, which was “ongoing” and
“chronic,” likely developed in preadolescence. White pointed to defendant’s
desire to avoid school and thoughts of suicide, both of which manifested when he
was a child, as indicative of his depression. She also described depression in great
detail: “Depression is considered in the diagnostic terminology to be an affective
disorder. It means that it is a disorder of mood along with anxiety disorders. And
it can range from mild to severe and up through psychotic depression that I
mentioned. It can also be short-term or long-term. It can be chronic. It can be
situationally related, in which case it might be considered an adjustment reaction.
You lose your job, you’re depressed. It can also be due to biochemical factors and
then we often see a family tendency. It may run in the family and those types of
depression are commonly very rapidly helped with anti-depressant medication.”
White then testified that defendant’s depression was not biochemical, but was
“probably moderate and chronic” and further explained: “I wouldn’t call it severe
to the extent that maybe he needs to be hospitalized or could barely get out of bed.
On the other hand, I would not call it mild in the sense that I think it was more
serious in that I think the feelings of hopelessness, the on and off again thoughts of
suicide, the sense of not much of a future are more serious symptoms than what I
would consider mild.”
White also testified to what she termed a “mental slowdown that sounded
like [defendant] was having a difficult time concentrating and that something was
on his mind.” This behavior was related to her by defendant’s friend, who
described him as “being very spacey and being kind of nonresponsive in a group
of people, sometimes kind of wandering off, finding it difficult to get his
attention.” Additionally, defendant’s friend said defendant had told him his “brain
hurt.” Defendant’s girlfriend told White that defendant mumbled and spoke to
himself. White speculated defendant’s “mental slowdown” could have been
caused either by (1) “possible seizure activity,” (2) “a psychosis” or
“schizophrenic process where maybe he was hearing voices sort of in his head,”
(3) “an extreme sort of internal pressure preoccupation,” or (4) “a depression
that’s severe enough that it can cause psychotic symptoms.”
Bredefeld testified that he was asked to perform a psychological and
neuropsychological evaluation on defendant. To do that, he administered some 23
psychological, psychodiagnostic, and neuropsychological tests to defendant. He
concluded defendant functioned “within the borderline range of intelligence,” was
“seriously impaired” in the area of abstract reasoning, and had “tremendous
difficulty” with reading and deductive skills. Bredefeld also testified to
defendant’s “generalized cerebral inefficiency.” The results of a Rorschach test
indicated that defendant was “particularly depressed” and that the depression was
chronic rather than situational. Defendant also scored “high on an indicator of
suicide potential” on that same test. Another test, the Millon Clinical Multiaxial
Inventory-II, also pointed to defendant’s depression of “long-standing duration.”
After Bredefeld testified, the prosecutor asked the trial court to order
defendant to undergo an evaluation conducted by a prosecution expert for
purposes of rebuttal. Defense counsel objected, arguing that defendant’s mental
condition was not tendered as an issue. Rather, the defense “presented a
psychological social history of the defendant and his functioning and not
necessarily his mental condition.”
People v. McPeters (1992) 2 Cal.4th 1148, the trial court
concluded that defendant had tendered his mental condition as an issue, and on
this basis it granted the prosecutor’s request that defendant be evaluated by an
expert of the prosecutor’s choice. The court explained: “[C]ertainly the status of
his mental condition, for example, the ability to engage in abstract reasoning, . . .
that’s been clearly tendered and as well as his chronically sad, depressed, hopeless
state. These are mental conditions, although they may not rise to the status of
mental illness, although if Dr. White’s testimony is believed that moderate
depression would be on a chronic basis would be a recognized mental illness . . . .”
The court noted: “It is clear that as a mitigating factor the defendant has tendered
his mental state to show a functioning at . . . as far as abstract thinking, ability to
reason, functioning in writing or calculating at . . . one of the very lowest levels
. . . and there is, of course, the moderate depression and the testimony offered by
the psychologist was more than showing a character effect or a personality trait or
habit. [¶] Dr. White described a very sad, withdrawn, lonely, isolated young man
who is hopeless . . . and the fact that the defendant has produced a skilled
psychologist who has given the defendant more tests . . . than just the usual ones,
. . . a wide, lengthy battery of tests with subparts, the court concludes the
defendant has tendered his mental state or mental condition.”
Defense counsel told the trial court that defendant would refuse to
participate in the court-ordered examination, which was scheduled for the next
day. At the scheduled time, the prosecutor and his chosen expert, Psychiatrist
Howard Terrell, arrived at the jail to interview defendant, with defense counsel
present. For approximately five minutes, Dr. Terrell asked defendant questions,
which he refused to answer. Defense counsel then terminated the interview.
Defense counsel asked the court to exclude any testimony about the aborted
evaluation on both relevance and Evidence Code section 352 grounds. The trial
court denied the request. Dr. Terrell then testified that his attempts to conduct a
psychiatric evaluation of defendant were thwarted by defendant’s refusal to
participate. Dr. Terrell also testified that defense experts White and Bredefeld had
insufficient evidence before them to conclude that defendant suffered from “major
depression,” psychosis, or schizophrenia. Clinical Psychologist Michael
Thackrey, Ph.D., also testified as a prosecution expert, questioning the soundness
of defense expert Bredefeld’s testing methods and conclusions.
Defendant now claims that the trial court erred by ordering a psychiatric
evaluation by prosecution psychiatrist Dr. Terrell and by allowing Dr. Terrell to
testify to defendant’s refusal to participate in the evaluation. According to
defendant, these errors violated his rights to silence, to counsel, to a fair trial, to a
reliable penalty determination, and to due process under the Fifth, Sixth, Eighth,
and Fourteenth Amendments of the federal Constitution.
Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1116 (Verdin), we
recently held that a “trial court’s order granting the prosecution access to [a
defendant] for purposes of having a prosecution expert conduct a mental
examination is a form of discovery that is not authorized by the criminal discovery
statutes or any other statute, nor is it mandated by the United States Constitution.”
We explained that although McPeters, supra, 2 Cal.4th 1148, authorized “such
discovery” when a defendant had put his mental state in issue, “following
Proposition 115 and the enactment of the exclusivity guidelines in section
1054, subdivision (e),” we said, “we are no longer free to create such a rule of
criminal procedure, untethered to a statutory or constitutional base.” (Verdin,
supra, at p. 1116.) Here, the trial court’s authorization for defendant to submit to
a psychiatric evaluation by a prosecution expert was contrary to our recent opinion
in Verdin. We conclude, however, that defendant suffered no possible prejudice.
When testifying on rebuttal, prosecution expert Dr. Terrell, a psychiatrist,
called into question the conclusions and methodology of the defense experts,
Psychologists White and Bredefeld. In this respect, Dr. Terrell’s testimony was
substantially similar to the testimony of prosecution psychologist William
Thackrey, who also testified at the penalty phase. Thus, even without Dr. Terrell’s
testimony, the jury still heard from Thackrey that the reliability of the defense
Proposition 115, known as the “Crime Victims Justice Reform Act,”
“added both constitutional and statutory language authorizing reciprocal discovery
in criminal cases.” (Izazaga v. Superior Court (1991) 54 Cal.3d 356, 363-364; see
Tapia v. Superior Court (1991) 53 Cal.3d 282, 286.)
Proposition 115 added a chapter to the Penal Code, beginning with section
1054, which sets forth the purposes of this new chapter. The purpose listed in
section 1054, subdivision (e) is that “no discovery shall occur in criminal cases
except as provided by this chapter, other express statutory provisions, or as
mandated by the Constitution of the United States.”
expert testimony was questionable. Moreover, in criticizing the defense experts’
methodology and conclusions, Dr. Terrell did not rely on defendant’s refusal to
participate in the court-ordered examination. Additionally, the brutality of
defendant’s crimes — beating to death a frail, elderly, and particularly vulnerable
woman in the course of burglarizing her home and attempting to rape and rob her
— weighs heavily in aggravation under section 190.3, factor (a). Accordingly, it
is not reasonably possible that the jury would have returned a penalty verdict of
life without parole in this case rather than death if the trial court had not allowed
Dr. Terrell to testify regarding defendant’s refusal to cooperate with the court-
ordered psychiatric examination. (People v. Brown (1988) 46 Cal.3d 432, 448.)
2. Alleged improper rebuttal evidence
the prosecutor asked if he had an
opinion, based on his limited evaluation of defendant, his review of particular
portions of trial testimony, his consultation with prosecution psychologist William
Thackrey, and Dr. Terrell’s courtroom observations of defendant, whether there
was sufficient evidence to support a diagnosis of “major depression,” psychosis, or
schizophrenia. Defense counsel objected that the proposed testimony would
constitute improper rebuttal evidence, but the trial court overruled the objection.
Dr. Terrell then testified that the defense experts lacked sufficient bases to support
a diagnosis of any of the three conditions.
During Psychologist Thackrey’s testimony, the prosecutor asked if he had
an opinion, based on his review of defense expert Bredefeld’s notes from his
interview of defendant, and on the results of the battery of tests Bredefeld
administered, whether there was sufficient basis for Bredefeld to conclude that
defendant suffered from a “neuropsychological disorder.” After the trial court
overruled a defense objection to the question as calling for improper rebuttal
evidence, Thackrey testified that there was insufficient evidence to suggest
defendant suffered from a “neurobehavioral disorder.” Thackrey also testified,
over defense objection, that there was insufficient evidence to suggest defendant
suffered from posttraumatic stress disorder.
Defendant now claims the trial court erred by overruling defense objections
to “improper rebuttal evidence” in the form of opinions of Dr. Terrell and
Psychologist Thackrey as to defendant’s mental condition. According to
defendant, these errors violated his right under the federal Constitution’s Eighth
Amendment to a reliable penalty determination. We disagree.
Prosecution rebuttal evidence must tend to disprove a fact of consequence
on which the defendant has introduced evidence. (See People v. Boyd, supra, 38
Cal.3d at p. 776.) The scope of rebuttal evidence is within the trial court’s
discretion, and on appeal its ruling will not be disturbed absent “ ‘palpable
abuse.’ ” (People v. Raley (1992) 2 Cal.4th 870, 912.) None appears here.
The testimony of prosecution experts Terrell and Thackrey as just described
was within the proper realm of rebuttal evidence. Dr. Terrell’s testimony that
nothing suggested defendant suffered from “major depression,” “psychosis,” or
“schizophrenia” was proper rebuttal of defense expert White’s testimony that
defendant manifested signs of clinical depression. Although White did not label
defendant’s condition as “posttraumatic stress disorder” (a term used by
prosecution psychologist Thackrey), she did describe defendant’s coping
mechanisms as “not very good” and characterized his drinking from an early age
as a means of escape.
We reach a similar conclusion with respect to Thackrey’s testimony that the
data on which the defense experts relied was insufficient to suggest that defendant
suffered from a “neurobehavioral disorder.” Although the various expert
witnesses for the defense and prosecution each used slightly different terminology,
the testimony of the two prosecution expert witnesses was proper rebuttal, and the
trial court in allowing that testimony did not commit “palpable error.”
D. Alleged Penalty Phase Instructional Error
Defendant contends the trial court erred when it modified the defense-
proffered instruction on mercy and when it refused to instruct the jury that its
sentencing choice would be carried out. According to defendant, these errors
violated his United States Constitution Fifth, Sixth, Eighth, and Fourteenth
Defendant requested this instruction: “If a mitigating circumstance or an
aspect of defendant’s background or his character arouses mercy, sympathy,
empathy, or compassion such as to persuade you that death is not the appropriate
penalty, you may impose a sentence of life without possibility of parole.” The
trial court gave a modified version of the instruction: “If, after weighing all the
relevant evidence, a mitigating circumstance or an aspect of defendant’s
background or his character arouses sympathy, pity, or compassion such as to
persuade you that death is not the appropriate penalty, you may impose a penalty
of life without possibility of parole.”
that by omitting the word “mercy” from the
instruction, the trial court removed the instruction’s “vital core” and “effectively
removed mercy from the jury’s consideration.” He claims the harm resulting from
the “eviscerated” mercy instruction was compounded because the trial court
immediately thereafter instructed the jury: “You may not apply any sympathetic
factor merely because you may feel a sympathetic response to any person who
might be in the defendant’s position.” And he argues that the trial court’s use of
the introductory phrase — “[i]f, after weighing all relevant evidence” — made the
damage from the instruction “complete” because it told the jury to withhold its
consideration of “sympathy, pity, or compassion” until after the jury completed
the weighing process. We disagree.
Here, in addition to the modified defense instruction, the jury was
instructed with CALJIC No. 8.85, which told the jury to consider “any
sympathetic or other aspect of defendant’s character or record that the defendant
offers as a basis for a sentence less than death,” and CALJIC No. 8.88, which told
the jury it was “free to assign whatever moral or sympathetic value [it] deem[s]
appropriate to each and all of the various factors [it is] permitted to consider.” In
closing argument, the defense explicitly told the jury it could exercise mercy
toward defendant: “If you find anything in [defendant’s] background that’s been
presented as evidence in this case that makes you have sympathy, passion, pity for
him, if looking at his background you have mercy, you can then take that one thing
and give him life without possibility of parole.”
As defendant acknowledges, when a trial court instructs the jury with
CALJIC Nos. 8.85 and 8.88, it need not give a specific instruction on mercy, even
if requested. (People v. Hughes (2002) 27 Cal.4th 287, 403; see also People v.
Wader (1993) 5 Cal.4th 610, 663.) These two instructions adequately inform the
jury that it may exercise mercy, even though the word “mercy” is not specifically
mentioned or defined. Therefore, because the trial court instructed the jury with
CALJIC Nos. 8.85 and 8.88, and defense counsel argued, without objection, that
the jury could exercise mercy and thus sentence defendant to life without
possibility of parole, “[w]e find no reason to believe that the jury may have been
misled about its obligation to take into account mercy or any of defendant’s
mitigating evidence in making its penalty determination.” (People v. Hughes,
supra, 27 Cal.4th at p. 403.)
decision will be carried out
Defendant requested this instruction: “A sentence of life without
possibility of parole means that Keone Wallace will remain in state prison for the
rest of his life and will not be paroled at any time. A sentence of death means that
Mr. Keone Wallace will be executed in the gas chamber or by lethal injection.”
The trial court declined the instruction, and instead instructed as follows: “You
should assume that for purpose of your deliberations the penalty imposed by the
jury will be carried out.” It also instructed with CALJIC No. 8.88, which stated, in
pertinent part: “It is now your duty to determine which of the two penalties, death
or confinement in the state prison for life without the possibility of parole, shall be
imposed on the defendant.”
We have previously explained that because of the “possibility of appellate
reversal or gubernatorial commutation or pardon, it would be inaccurate and
therefore erroneous to instruct the jury that if it returns a death verdict, the
sentence of death will inexorably be carried out. [Citations.]” (People v. Kipp
(1998) 18 Cal.4th 349, 378.) The trial court was therefore correct in refusing
defendant’s proffered instruction. Furthermore, the instruction the trial court gave
sufficiently addressed any questions or concerns the jury may have had regarding
its sentencing choice. (Id. at pp. 378-379.)
Finally, we have consistently held that the phrase “life without possibility
of parole” as it appears in CALJIC No. 8.84 adequately informs the jury that a
defendant sentenced to life imprisonment without possibility of parole is ineligible
for parole. (People v. Prieto, supra, 30 Cal.4th at p. 270; People v. Smithey,
supra, 20 Cal.4th at p. 1009.) We also have held that the United States Supreme
Court decisions in Kelly v. South Carolina (2002) 534 U.S. 246, Shafer v. South
Carolina (2001) 532 U.S. 36, and Simmons v. South Carolina (1994) 512 U.S.
154, do nothing to alter that conclusion. (People v. Martinez, supra, 31 Cal.4th at
pp. 698-699.) We reaffirm those decisions here, and decline to reconsider them
finding no persuasive reason to do so.
E. Alleged Prosecutorial Misconduct
prosecutor engaged in an egregious “pattern of
misconduct” throughout the penalty phase, thereby denying defendant a fair trial
and requiring this court to set aside the death judgment. We disagree.
As stated earlier (p. 41, ante), a prosecutor commits misconduct under the
federal standard by engaging in conduct that “ ‘ “ ‘so infect[s] the trial with
unfairness as to make the resulting conviction a denial of due process.’ ” ’ ”
(People v. Earp, supra, 20 Cal.4th at p. 858; Darden v. Wainwright, supra, 477
U.S. at p. 181; Donnelly v. DeChristoforo, supra, 416 U.S. at p. 642.) But under
state law, it is misconduct for a prosecutor to use “ ‘ “ ‘deceptive or reprehensible
methods to attempt to persuade either the court or the jury.’ ” ’ ” (People v. Earp,
supra, 20 Cal.4th at p. 858; People v. Espinoza, supra, 3 Cal.4th at p. 820; People
v. Price, supra, 1 Cal.4th at p. 447.)
The defense preserves a claim of prosecutorial misconduct for appeal by
making a timely objection at trial and asking the court to admonish the jury.
(People v. Earp, supra, 20 Cal.4th at p. 858; People v. Price, supra, 1 Cal.4th at
p. 447.) “ ‘[O]therwise, the point is reviewable only if an admonition would not
have cured the harm caused by the misconduct.’ ” (People v. Earp, supra, 20
Cal.4th at p. 858.)
For prosecutorial misconduct at the penalty phase, we apply the reasonable
possibility standard of prejudice first articulated in People v. Brown, supra, 46
Cal.3d at page 448, and which, as we have later explained, is the “same in
substance and effect” as the beyond-a-reasonable-doubt test for prejudice
articulated in Chapman v. California (1967) 386 U.S. 18. (People v. Ashmus
(1991) 54 Cal.3d 932, 990; accord, People v. Gonzalez (2006) 38 Cal.4th 932,
The first instance of alleged misconduct pertains to the prosecutor’s
reference to defendant giving a false name after his April 1989 arrest in Redondo
Beach for brandishing a pistol at Marcus Robinson and threatening to shoot him.
The trial court ruled that evidence of the brandishing and the threat, together with
evidence that defendant kicked out the patrol car window and kicked one of the
arresting officers, was admissible in aggravation as criminal activity involving the
use of force or violence. (See § 190.3, subd. (b).) But the court ruled that
defendant’s use of a false name was not admissible as aggravating evidence. At
the conclusion of his questioning of Officer Jim Acquarelli, the prosecutor asked
“if the defendant offered you any name for himself.” Acquarelli answered “yes,”
but did not elaborate. Defense counsel objected to the question as irrelevant, and
that objection was sustained. Outside the jury’s presence, the trial court ruled that
the prosecutor’s question was inadvertent and likely caused by the court’s many
rulings about the Redondo Beach incident. As the court explained, defendant’s
use of a false name resulted in his conviction under that name, thus requiring a
stipulation by the parties to tie the abstract of judgment in that case to defendant.
Absent that stipulation, the trial court said, the prosecutor’s inquiry would have
Assuming the sufficiency of defendant’s relevance objection, he failed to
request an admonition and thus has not preserved this claim. In any event,
defendant suffered no possible prejudice from the prosecutor’s question because
the witness did not reveal that defendant had used a false name.
Defendant makes a similar claim of prosecutorial misconduct based on the
testimony of two prosecution witnesses who referred to defendant by the name
“Kevin Walker.” Apparently, defendant had in the past been booked into the
Fresno County Jail under that name. As a result, some forms generated in
connection with this case referred to defendant as Kevin Walker. The trial court
ordered the deletion of that name from any exhibits admitted into evidence, and
the parties agreed that witnesses would be instructed to use defendant’s real name.
Nonetheless, two prosecution witnesses — fellow Fresno County Jail inmate
Anton McCray and Correctional Officer Mike Delgado — each referred three
times to defendant as Kevin Walker. Defense counsel objected to these witnesses
referring to defendant as Kevin Walker. Defendant now contends the references
resulted from the prosecutor’s failure to admonish the witnesses and thus show
prosecutorial misconduct. Assuming this claim is preserved as prosecutorial
misconduct, we see no possible prejudice. Nothing in the record suggests that the
jury would have concluded from the testimony that defendant deceptively used a
different name or that, if he did, it somehow made him more culpable.
We also see no possible prejudice from the prosecutor’s questioning of
defense witness Mary Hurd, defendant’s aunt. As relevant here, Hurd testified
that defendant went to live with his grandparents at age 10, and that she had never
seen defendant drink alcohol. The trial court allowed the prosecutor on cross-
examination to show Hurd a probation report prepared in connection with
defendant’s felony conviction for possession of cocaine for sale, although the
court did not admit the report as evidence. Defense counsel objected to the
prosecutor’s question asking whether the probation report refreshed Hurd’s
recollection. We agree with the Attorney General that the prosecutor’s “brief
attempts to impeach [witness] Hurd” fell far short of “an egregious pattern of
misconduct and did not infect the trial with unfairness.” No possible prejudice to
We also discern no prejudicial misconduct in the prosecutor’s asking
rebuttal witness Clinical Psychologist Michael Thackrey for his “opinion” about
the views expressed by a defense expert, Clinical Psychologist Garry Bredefeld.
When defense counsel objected to the questioning, the trial court promptly
admonished the prosecutor, stating: “One witness may not pass a judgment on the
opinion of another expert witness. That’s why we have 12 jurors here to decide
that. [Thackrey] may give us his opinion as to what the results showed.”
Thereafter, the prosecutor rephrased his question.
Defendant makes another claim of prosecutorial misconduct pertaining to
defense Psychologist Bredefeld. He asserts that the prosecutor attempted to
“demean” the psychologist by “purposely omitt[ing]” his title of “Doctor.” We
disagree. When defense counsel raised this point at trial, the court responded:
“My only comment is we all have doctor of jurisprudence degrees. [But] [w]e
don’t call each other doctor. And, therefore, I did not feel it was diminishing or
depreciating the witness to call him mister rather than doctor. I realize in some
professions and in Europe if you have a doctor[ate] in Europe and they [don’t] call
you doctor . . . someone is in deep trouble. But we have different — different
views.” We agree with the trial court’s comments.
Defendant further claims prosecutorial misconduct in the prosecutor’s
phrasing of a question to prosecution psychiatrist Terrell. The prosecutor asked
whether Dr. Terrell had attempted to conduct an examination of defendant “at my
request and pursuant to an order of this court?” Before the witness could answer,
the trial court interrupted and explained that the court had not ordered an
examination by Dr. Terrell, but rather had “ordered that [an] examination could be
made by a physician selected by the People.” Defendant contends that the
prosecutor’s phrasing of the question was in defiance of the trial court’s ruling, as
requested by defense counsel, that Dr. Terrell not be allowed to testify that he had
a court appointment to examine defendant. We see no possible prejudice.
Assuming defendant has preserved this claim for review, the trial court’s
clarification left no doubt that the court merely authorized a psychiatric
examination of defendant and that Dr. Terrell was the prosecution’s choice to
conduct that examination.
We likewise discern no prejudicial misconduct by the prosecutor in penalty
phase closing argument. Defendant contends that the prosecutor improperly
argued that defendant’s felony conviction and resulting incarceration had failed to
act as deterrents. According to defendant, this argument urged the jury to consider
factors in aggravation that are not specifically enumerated in section 190.3. We
disagree. As the trial court advised the jury when defense counsel objected to this
argument, the prosecutor was entitled to argue based not just on the evidence, but
on the “reasonable inferences” to be drawn from it. The absence of any deterrent
effect from defendant’s earlier brushes with the law was one such reasonable
Nor, contrary to defendant’s contention, did the prosecutor’s argument
violate People v. Boyd, supra, 38 Cal.3d at pages 774 to 776, by suggesting that
the absence of mitigating evidence qualifying under section 190.3, factor (k)
(“[a]ny other circumstance which extenuates the gravity of the crime”) was itself
aggravating evidence. The prosecutor did no more than urge the jury that
defendant’s evidence in mitigation was not particularly weighty.
Also without merit is defendant’s suggestion that by arguing that
defendant’s case in mitigation failed to show defendant suffered from “[an]
extreme mental or emotional disturbance,” or from “mental disease or defects” the
prosecutor was somehow committing Skipper error. (See Skipper v. South
Carolina (1986) 476 U.S. 1 [penalty phase jury must be allowed to consider
relevant evidence in mitigation].) Defendant concedes that he did not object to
this argument and thus has not preserved this claim for appeal. (See People v.
Earp, supra, 20 Cal.4th at p. 858.) He contends, however, that his counsel
rendered constitutionally deficient representation in failing to do so. (See
Strickland v. Washington (1984) 466 U.S. 668, 687.) Not so. Because the
prosecutor did not commit “Skipper error” in arguing the insufficiency of
defendant’s mental or emotional disturbance evidence, such an objection would
have been futile.
Likewise not preserved for appeal is a claim of prosecutorial misconduct in
the prosecutor’s description of the penalty phase closing arguments of defendant’s
two trial attorneys as “the good-guy/bad-guy thing.” Because no possible
prejudice resulted from this brief comment, we also reject defendant’s contention
that his counsel’s failure to object was ineffective assistance of counsel.
We also have reviewed the prosecutor’s comment in closing argument that
Clinical Psychologist White in testifying to defendant’s social and family history
relied on extensive criminal history for defendant’s mother but “never asked for a
rap sheet on the defendant.” Defense counsel objected to this comment, but did
not ask the court to admonish the jury to disregard it. Because such an admonition
would have been sufficient to cure any harm from the comment, defendant has not
preserved this issue for appeal. (People v. Earp, supra, 20 Cal.4th at p. 858;
People v. Price, supra, 1 Cal.4th at p. 447.) In any event, the isolated reference to
defendant’s “rap sheet” did not constitute prejudicial misconduct under either the
state or federal standard.
Considering all of defendant’s contentions of prosecutorial misconduct at
the guilt and penalty phases, we conclude there was no reasonable possibility the
penalty verdict would have been different in the absence of any of these actions by
V. OTHER ISSUES
A. Denial of Automatic Application for Modification of Death Verdict
Defendant contends the trial court erred when, in denying the automatic
application for modification of the death verdict (§ 190.4, subd. (e)), it ignored
mitigating evidence and failed to properly weigh factors in aggravation and
mitigation, thus depriving him of a reliable penalty determination under the Eighth
Amendment to the United States Constitution. Specifically, defendant claims that
the trial court erred in failing to consider as mitigation his age (21 years old at the
time of the crime) under section 190.3, factor (i), and his mental state, alcoholism,
and intoxication at the time of the offense under section 190.3, factors (d) and (h),
and in finding that section 190.3, factor (k) was the only mitigating factor.
Because defendant failed to assert these claims when the trial court ruled on
the motion, he has not preserved this issue. (See People v. Riel (2000) 22 Cal.4th
1153, 1220 [the contemporaneous objection rule applies to cases in which the
modification hearing was conducted after this court’s decision in People v. Hill
(1992) 3 Cal.4th 959, 1013, became final].) In any event, defendant’s contention
is without merit.
“In every case in which the trier of fact has returned a verdict or finding
imposing the death penalty, the defendant shall be deemed to have made an
application for modification of such verdict or finding . . . . In ruling on the
application, the judge shall review the evidence, consider, take into account, and
be guided by the aggravating and mitigating circumstances referred to in Section
190.3, and shall make a determination as to whether the jury’s findings and
verdicts that the aggravating circumstances outweigh the mitigating circumstances
are contrary to law or the evidence presented. The judge shall state on the record
the reasons for his findings.” (§ 190.4, subd. (e).) In ruling on the application to
modify, the trial court does not make an independent penalty determination, but
instead reweighs the evidence of aggravating and mitigating circumstances and
then determines whether the weight of the evidence supports the jury verdict.
(People v. Alfaro (2007) 41 Cal.4th 1277, 1334.) On appeal, we independently
review the trial court’s ruling in light of the record, but we do not determine the
penalty in the first instance. (People v. Geier (2007) 41 Cal.4th 555, 616.)
Here, before ruling on the automatic application to modify the penalty
verdict, the trial court stated that it would “now proceed independently to review
the evidence in determining whether the aggravating circumstances outweigh the
mitigating circumstances and whether they were equally balanced and whether,
even though the aggravating circumstances may outweigh the mitigating
circumstances, whether the penalty of life without possibility of parole rather than
death is, under the evidence, the appropriate penalty.” These remarks indicate that
the trial court understood its duty under section 190.4, subdivision (e), to
independently review the evidence and determine whether it supported the jury’s
findings. (See People v. Geier, supra, 41 Cal.4th at p. 617; People v. Smith (2003)
30 Cal.4th 581, 640.)
In doing so, the trial court thoroughly evaluated evidence applicable to each
factor under section 190.3, including factors (d), (h), and (i). Rather than failing to
consider these factors, as defendant claims, the trial court discussed at length the
evidence offered in their support and found that it did not amount to statutory
mitigation. This was proper. (People v. Alfaro, supra, 41 Cal.4th at p. 1334 [trial
court is not required to find that evidence offered in mitigation does in fact
mitigate].) The court concluded, after independently reviewing the penalty phase
evidence, that “the factors in aggravation greatly outweigh[ed] the factors of
extenuation or mitigation” and that death was the appropriate penalty. Under
these circumstances, the trial court fulfilled its duty under section 190.4,
California’s Death Penalty Law and
Defendant contends California’s death penalty law violates the federal
Constitution in many respects. We have in the past rejected all of these claims,
and we reject his invitation to revisit them.
California’s death penalty law does not amount to cruel or unusual
punishment. (People v. Frierson (1979) 25 Cal.3d 142, 183-186.)
California’s death penalty law adequately narrows the class of murderers
eligible for the death penalty. (People v. Tafoya (2007) 42 Cal.4th 147, 197.)
Factor (a) of section 190.3, which permits the jury to consider the
“circumstances of the crime” in determining whether to impose the death penalty,
is not unconstitutionally arbitrary or capricious. (Tuilaepa v. California (1994)
512 U.S. 967, 974-976; see People v. Tafoya, supra, 42 Cal.4th at p. 197.)
Neither the federal nor the state Constitution, nor any recent decision of the
United States Supreme Court, requires that a jury find beyond a reasonable doubt
that death is the appropriate punishment, or that it must unanimously agree on the
presence of a particular aggravating factor, and none of them prohibits a jury from
imposing the death penalty unless it finds beyond a reasonable doubt that the
circumstances in aggravation outweigh those in mitigation. Nor does the federal
or state Constitution require the trial court to so instruct the jury. (People v. Carey
(2007) 41 Cal.4th 109, 135-136; People v. Leonard (2007) 40 Cal.4th 1370, 1429.)
A prosecutor’s discretion to select those eligible cases in which the death
penalty is sought does not offend the federal or state Constitution. (People v.
Tafoya, supra, 42 Cal.4th at p. 198.)
The delay inherent in death penalty appeals, including the delay in the
appointment of appellate counsel, does not violate due process. (People v. Dunkle
(2005) 36 Cal.4th 861, 942.) Further, as defendant acknowledges, we have in the
past declined to recognize the existence of a “right to a speedy appeal” as an
offshoot of the United States Constitution Sixth Amendment’s right to a speedy
trial (People v. Holt (1997) 15 Cal.4th 619, 709), and we do so again here.
A challenge to California’s method of execution, whether lethal injection or
lethal gas, on the basis that it violates the Eighth Amendment of the United States
Constitution “[is] not cognizable on appeal because [it does] not affect the validity
of the judgment itself and [does] not provide a basis for reversal of the judgment
on appeal. [Citations.]” (People v. Tafoya, supra, 42 Cal.4th at p. 199.) Further,
an attack on purported illegalities of the execution process is premature. (People
v. Rogers, supra, 39 Cal.4th at p. 911.)
C. International Law
Defendant contends he was denied the right to a fair trial by an independent
tribunal in violation of customary international law as well as international treaties
to which the United States is a party. We need not consider the applicability of
international treaties and laws to defendant’s appeal, however, because he has
failed to establish his premise that he suffered violations of state or federal
constitutional law. (People v. Tafoya, supra, 42 Cal.4th at p. 199.)
Defendant also claims that California’s use of the death penalty as a
“regular” form of punishment falls short of international norms of humanity and
decency and therefore violates the Eighth and Fourteenth Amendments to the
federal Constitution. This argument “ ‘is a variation on the familiar argument that
California’s death penalty law does not sufficiently narrow the class of death-
eligible defendants to limit that class to the most serious offenders, a contention
we have rejected in numerous decisions.’ [Citations.]” (People v. Carey, supra,
41 Cal.4th at p. 135.)
D. Proportionality Review
This court’s refusal to conduct intercase proportionality review of a death
sentence does not violate the federal Constitution. (People v. Leonard, supra, 40
Cal.4th at p. 1429.) But when a defendant requests intracase proportionality
review, as defendant does here, we review the particular facts of the case to
determine whether the death sentence is so disproportionate to the defendant’s
personal culpability as to violate the California Constitution’s prohibition against
cruel or unusual punishment. (See People v. Rogers, supra, 39 Cal.4th at p. 894;
People v. Steele (2002) 27 Cal.4th 1230, 1269; People v. Dillon (1983) 34 Cal.3d
“ ‘To determine whether a sentence is cruel or unusual as applied to a
particular defendant, a reviewing court must examine the circumstances of the
offense, including its motive, the extent of the defendant’s involvement in the
crime, the manner in which the crime was committed, and the consequences of the
defendant’s acts. The court must also consider the personal characteristics of the
defendant, including age, prior criminality, and mental capabilities. [Citation.] If
the court concludes that the penalty imposed is “grossly disproportionate to the
defendant’s individual culpability” [citation], or, stated another way, that the
punishment “ ‘ “ shocks the conscience and offends fundamental notions of human
dignity” ’ ” [citation], the court must invalidate the sentence as unconstitutional.’
[Citation.]” (People v. Leonard, supra, 40 Cal.4th at pp. 1426-1427.)
In arguing that the death sentence is unconstitutional as applied to him,
defendant stresses his youth (21 years old at the time of the murder), his “less than
average” intelligence, his “mental health issues” and “difficult childhood and
youth,” his alcohol addiction and state of intoxication at the time of the crimes, his
“minimal” prior criminal history, and the “paltry” evidence of unadjudicated
criminal activity. We are not persuaded.
In the course of a residential burglary, defendant beat to death a frail,
elderly woman who was particularly vulnerable because of her age and her poor
physical condition. He also attempted to rob and sexually assault her. On these
facts, the death sentence is not grossly disproportionate to defendant’s culpability.
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. Having found no prejudicial error, we reject this contention.
For the foregoing reasons, we affirm the judgment in its entirety.
GEORGE, C. J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Wallace
Original Appeal XXX
Opinion No. S033360
Date Filed: August 14, 2008
Judge: Frank J. Creede, Jr.
Attorneys for Appellant:
David Joseph Macher, under appointment by the Supreme Court, for Defendant and Appellant.
Attorneys for Respondent:
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney
General, Mary Jo Graves, Assistant Attorney General, Stephen G. Herndon and Alison Elle Alemán,
Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
David Joseph Macher
40485 Murrieta Hot Springs Road
Murrieta, CA 92563
Alison Elle Alemán
Deputy Attorney General
1300 I Street
Sacramento, CA 94244-2550
Automatic appeal from a judgment of death.
|Date:||Citation:||Docket Number:||Category:||Status:||Cross Referenced Cases:|
|Thu, 08/14/2008||44 Cal.4th 1032 original opinion 45 Cal. 4th 76b modification||S033360||Automatic Appeal||closed; remittitur issued|| |
WALLACE (KEONE) ON H.C. (S140077)
|1||The People (Respondent)|
Represented by Attorney General - Sacramento Office
Alison Aleman, Deputy Attorney General
P.O. Box 944255
|2||Wallace, Keone (Appellant)|
San Quentin State Prison
Represented by Michael Cross
Attorney at Law
1612 W. Mineral King Avenue, Suite A
|3||Wallace, Keone (Appellant)|
San Quentin State Prison
Represented by David Joseph Macher
Attorney at Law
40485 Murrieta Hot Springs Road, PMB 298
|Aug 14 2008||Opinion: Affirmed|
|May 27 1993||Judgment of death|
|Jun 15 1993||Filed certified copy of Judgment of Death Rendered|
|Jun 15 1993||Application for Extension of Time filed|
By Court Reporter Renee Torres to Complete R.T.
|Jun 18 1993||Extension of Time application Granted|
To Court Reporter To 7-16-93 To Complete R.T.
|Mar 6 1998||Counsel appointment order filed|
Upon request of appellant for appointment of counsel, David J. Macher is hereby appointed to represent appellant on his automatic appeal now pending in this court.
|Apr 2 1998||Application for Extension of Time filed|
By Applt to request correction of the Record.
|Apr 6 1998||Extension of Time application Granted|
To Applt To 6-8-98 To request Corr. of Record.
|Jun 3 1998||Application for Extension of Time filed|
By Applt to request correction of the Record.
|Jun 8 1998||Extension of Time application Granted|
To 8-7-98 To request Record correctioon
|Jun 10 1998||Compensation awarded counsel|
|Aug 4 1998||Application for Extension of Time filed|
By Applt to request correction of the Record.
|Aug 7 1998||Extension of Time application Granted|
To 10-6-98 To request Record correction
|Oct 5 1998||Application for Extension of Time filed|
By Applt to request correction of the Record.
|Oct 7 1998||Filed:|
Suppl Proof of Service of request for Eot.
|Oct 13 1998||Extension of Time application Granted|
To 12-07-98 To request Record correction
|Nov 24 1998||Compensation awarded counsel|
|Dec 1 1998||Counsel appointment order filed|
Upon request of appellant for appointment of counsel, Michael Cross is hereby appointed to represent appellant Keone Wallace for habeas corpus/executive clemency proceedings related to the above automatic appeal now pending in this court.
|Dec 7 1998||Application for Extension of Time filed|
By Applt to request correction of the Record.
|Dec 11 1998||Extension of Time application Granted|
To 2-5-99 To request Record correction
|Dec 14 1998||Compensation awarded counsel|
|Feb 8 1999||Application for Extension of Time filed|
By Applt to request correction of the Record.
|Feb 16 1999||Filed:|
Suppl Decl of David Macher in support of Applic. for Eot.
|Feb 22 1999||Extension of Time application Granted|
To 4-6-99 To request Record correction
|Apr 6 1999||Application for Extension of Time filed|
By Applt to request Record correction
|Apr 12 1999||Extension of Time application Denied|
The request by Appellant for Extension of time to request correction of The Record Is denied
|Apr 16 1999||Order filed:|
Upon the court's own motion, the order filed on 4-12-99, is vacated. The applic. of applt for an extension of time to request correction of the record is granted to and including 6-7-99. No further extensions of time are contemplated.
|May 27 1999||Application for Extension of Time filed|
By Applt to request correction of the Record.
|Jun 1 1999||Extension of Time application Granted|
To 8-6-99 To request Record correction no further Extensions of time will be Granted.
|Jun 16 1999||Compensation awarded counsel|
|Jun 30 1999||Compensation awarded counsel|
|Jun 30 1999||Received copy of appellant's record correction motion|
motion to correct, augment and settle the record on appeal. (81 pp.)
|Jul 7 1999||Compensation awarded counsel|
|Sep 21 1999||Compensation awarded counsel|
|Oct 20 1999||Compensation awarded counsel|
|Jan 3 2000||Compensation awarded counsel|
|Feb 16 2000||Compensation awarded counsel|
|Mar 22 2000||Compensation awarded counsel|
|Apr 20 2000||Compensation awarded counsel|
|Jul 19 2000||Counsel's status report received (confidential)|
from atty David Macher.
|Aug 4 2000||Counsel's status report received (confidential)|
from atty Michael Cross.
|Sep 18 2000||Counsel's status report received (confidential)|
from atty Macher.
|Oct 10 2000||Counsel's status report received (confidential)|
|Oct 18 2000||Compensation awarded counsel|
|Nov 20 2000||Counsel's status report received (confidential)|
from atty Macher.
|Dec 6 2000||Counsel's status report received (confidential)|
from atty Cross.
|Dec 8 2000||Compensation awarded counsel|
|Jan 16 2001||Counsel's status report received (confidential)|
from atty Macher.
|Jan 17 2001||Compensation awarded counsel|
|Feb 5 2001||Counsel's status report received (confidential)|
from atty Cross.
|Feb 28 2001||Compensation awarded counsel|
|Mar 14 2001||Counsel's status report received (confidential)|
from atty Macher.
|Apr 19 2001||Compensation awarded counsel|
|May 18 2001||Counsel's status report received (confidential)|
from atty Cross.
|May 21 2001||Counsel's status report received (confidential)|
from atty Macher.
|Jul 11 2001||Counsel's status report received (confidential)|
from atty Cross.
|Jul 18 2001||Counsel's status report received (confidential)|
from atty Macher.
|Jul 19 2001||Record on appeal filed|
C-45 (12,359 Pp.) ; R-69 (8,283) - including material under seal and 10,151 pp. of juror questionnaires.
|Jul 19 2001||Appellant's Opening Brief Letter sent, due: 8/29/2001.|
|Jul 30 2001||Compensation awarded counsel|
|Aug 15 2001||Compensation awarded counsel|
|Aug 27 2001||Application for Extension of Time filed|
To file AOB. (1st request)
|Aug 28 2001||Extension of Time application Granted|
To 10/29/2001 to file AOB.
|Sep 13 2001||Counsel's status report received (confidential)|
from atty Cross.
|Sep 24 2001||Counsel's status report received (confidential)|
from atty Macher.
|Oct 24 2001||Compensation awarded counsel|
|Oct 26 2001||Application for Extension of Time filed|
To file AOB. (2nd request)
|Nov 1 2001||Extension of Time application Granted|
To 12/28/2001 to file AOB.
|Nov 13 2001||Counsel's status report received (confidential)|
from atty Cross.
|Nov 29 2001||Counsel's status report received (confidential)|
from atty Macher.
|Dec 27 2001||Extension of time granted|
To 2/26/2002 to file AOB.
|Dec 27 2001||Request for extension of time filed|
To file AOB. (3rd request)
|Jan 23 2002||Counsel's status report received (confidential)|
from atty Cross.
|Feb 22 2002||Request for extension of time filed|
To file AOB. (4th request)
|Feb 22 2002||Counsel's status report received (confidential)|
from atty Macher.
|Feb 25 2002||Extension of time granted|
To 4/2/2002 to file AOB.
|Mar 6 2002||Order filed|
Due to clerical error, the order filed in the above matter on February 25, 2002, is amended to read as follows: On application of appellant. and good cause appering, it is ordered that the time to serve and file AOB is extended to and including 4/29/2002.
|Mar 22 2002||Counsel's status report received (confidential)|
from atty Cross.
|Mar 27 2002||Counsel's status report received (confidential)|
from atty Cross.
|Apr 24 2002||Counsel's status report received (confidential)|
from atty Macher.
|Apr 24 2002||Request for extension of time filed|
To file AOB. (5th request)
|Apr 30 2002||Extension of time granted|
To 6/28/2002 to file AOB. Counsel anticipates filing the brief by 8/31/2002. Only one further extension totaling 64 additional days is contemplated.
|May 23 2002||Counsel's status report received (confidential)|
from atty Cross.
|Jun 21 2002||Request for extension of time filed|
to file AOB. (6th request)
|Jun 21 2002||Counsel's status report received (confidential)|
from atty Macher.
|Jun 26 2002||Compensation awarded counsel|
|Jul 16 2002||Extension of time granted|
To 8/27/2002 to file AOB. Counsel anticipates filing that brief by 9/30/2002. One further extension totaling 34 additional days will be granted.
|Aug 15 2002||Counsel's status report received (confidential)|
from atty Cross.
|Aug 20 2002||Request for extension of time filed|
to file AOB. (7th request)
|Aug 20 2002||Counsel's status report received (confidential)|
from atty Macher.
|Aug 23 2002||Extension of time granted|
to 10-28-2002 to file AOB. After that date, no further extension will be granted. Extension granted based upon counsel Macher's representation that he anticipates filing the AOB by 10-26-2002.
|Oct 18 2002||Counsel's status report received (confidential)|
from attorney Macher.
|Oct 18 2002||Application to file over-length brief filed|
(328 pp. opening brief submitted under seprate cover)
|Oct 18 2002||Counsel's status report received (confidential)|
from attorney Cross.
|Oct 21 2002||Order filed|
Appellant's appliation to file brief in excess of 280 pages is granted.
|Oct 21 2002||Appellant's opening brief filed|
|Nov 4 2002||Compensation awarded counsel|
|Nov 13 2002||Compensation awarded counsel|
|Nov 18 2002||Request for extension of time filed|
To file respondent's brief. (1st request)
|Nov 19 2002||Extension of time granted|
to 1-21-2003 to file respondent's brief.
|Dec 18 2002||Counsel's status report received (confidential)|
from atty Cross.
|Jan 17 2003||Request for extension of time filed|
to file respondent's brief. (2nd request)
|Jan 22 2003||Extension of time granted|
to 3/24/2003 to file respondent's brief. After that date, only three further extensions totaling about 180 additional days are contemplated. Extension is granted based upon Deputy Attorney General Alison Elle Aleman's representation that she anticipates filing that brief by 9/16/2003.
|Feb 21 2003||Counsel's status report received (confidential)|
from atty Cross.
|Mar 19 2003||Request for extension of time filed|
to file respondent's brief. (3rd request)
|Mar 24 2003||Extension of time granted|
to 5/23/2003 to file respondent's brief. After that date, only two further extensions totaling about 120 additional days are contemplated. Extension is granted based upon Deputy Attorney General Allison Elle Aleman's representation that she anticipates filing that brief by 9/16/2003.
|Apr 22 2003||Counsel's status report received (confidential)|
from atty Cross.
|May 19 2003||Request for extension of time filed|
to file respondent's brief. (4th request)
|May 21 2003||Compensation awarded counsel|
|May 21 2003||Extension of time granted|
to 7/22/2003 to file respondent's brief. After that date, only one further extension totaling about 60 additional days is contemplated. Extension is granted based upon Deputy Attorney General Alison Elle Aleman's representation that she anticipates filing that brief by 9/16/2003.
|Jun 13 2003||Counsel's status report received (confidential)|
from atty Cross.
|Jul 16 2003||Request for extension of time filed|
to file respondent's brief. (5th request)
|Jul 23 2003||Extension of time granted|
to 9-22-2003 to file respondent's brief. After that date, only one further extension totaling about 60 additional days will be granted. Extension granted based upon counsel Alison Elle Aleman's representation that she anticipates filing the brief by 11-21-2003.
|Aug 12 2003||Counsel's status report received (confidential)|
from atty Cross.
|Sep 19 2003||Request for extension of time filed|
to file respondent's brief. (6th request)
|Sep 25 2003||Extension of time granted|
to 11/21/2003 to file respondent's brief. Extension is granted based upon Deputy Attorney General Alison Elle Aleman's representation that she anticipates filing that brief by 11/21/2003. After that date, no further extension will be granted.
|Oct 14 2003||Counsel's status report received (confidential)|
from attorney Cross.
|Nov 19 2003||Request for extension of time filed|
to file respondent's brief. (7th request)
|Nov 26 2003||Extension of time granted|
to 1/21/2004 to file respondent's brief. Extension is granted based upon Deputy Attorney General Alison Elle Aleman's representation that she anticipates filing that brief by 1/21/2004. After that date, no further extension will be granted.
|Dec 10 2003||Compensation awarded counsel|
|Dec 15 2003||Counsel's status report received (confidential)|
from atty Cross.
|Jan 14 2004||Request for extension of time filed|
to file respondent's brief. (8th request)
|Jan 20 2004||Extension of time granted|
to 3/22/2004 to file respondent's brief. Extension is granted based upon Deputy Attorney General Alison Elle Aleman's representation that she anticipates filing that brief by 3/22/2004. After that after that date, no further extension will be granted.
|Mar 15 2004||Request for extension of time filed|
to file respondent's brief. (9th request)
|Mar 19 2004||Counsel's status report received (confidential)|
from atty Cross.
|Mar 19 2004||Extension of time granted|
to 4/21/2004 to file the respondent's brief. After that date, only one further extension totaling about 30 additional days will be granted. Extension is granted based upon Deputy Attorney General Alison Elle Aleman's representation that she anticipates filing that brief by 5/21/2004.
|Apr 19 2004||Request for extension of time filed|
to file respondent's brief. (10th request)
|Apr 27 2004||Extension of time granted|
to 5/21/2004 to file respondent's brief. based upon Deputy Attorney General Allison Elle Aleman's representation that she anticipates filing that brief by 5/21/2004. After that date, no further extension will be granted.
|May 19 2004||Request for extension of time filed|
to file respondent's brief. (11th request)
|May 21 2004||Extension of time granted|
to 6-21-2004 to file respondent's brief. After that date, no further extension will be granted. Extension granted based upon Deputy AG Alison Elle Aleman's representation that she anticipates filing the brief by 6-21-2004.
|Jun 9 2004||Compensation awarded counsel|
|Jun 14 2004||Request for extension of time filed|
to file respondent's brief. (12th request)
|Jun 21 2004||Counsel's status report received (confidential)|
from atty Cross.
|Jun 21 2004||Extension of time granted|
to 7/21/2004 to file respondent's brief. Extension is granted based upon Deputy Attorney Alison Elle Aleman's representation that she anticipates filing that brief by 7/21/2004. After that date, no further extension will be granted.
|Jul 14 2004||Request for extension of time filed|
to file respondent's brief. (13th request)
|Jul 21 2004||Extension of time granted|
to 8/20/2004 to file respondent's brief. Extension is granted based upon Deputy Attorney General Alison Elle Aleman's representation that she anticipates filing that brief by 8/20/2004. After that date, no further extension will be granted.
|Aug 16 2004||Counsel's status report received (confidential)|
from atty Cross.
|Aug 16 2004||Request for extension of time filed|
to file respondent's brief. (14th request)
|Aug 24 2004||Extension of time granted|
to 9/17/2004 to file respondent's brief. Extension is granted based upon Deputy Attorney General Allison Elle Aleman's representation that she anticipates filing that brief by 9/17/2004. After that date, no further extension will be granted.
|Sep 13 2004||Request for extension of time filed|
to file respondent's brief. (15th request)
|Sep 15 2004||Extension of time granted|
to 10/15/2004 to file respondent's brief. Extension is granted based upon Deputy Attorney General Alison Elle Aleman's representation that she anticipates filing that brief by 10/15/2004. After that date, no further extension will be granted.
|Oct 12 2004||Request for extension of time filed|
to file respondent's brief. (16th request)
|Oct 19 2004||Extension of time granted|
to 11/12/2004 to file respondent's brief. Extension is granted based upon Deputy Attorney General Alison Elle Aleman's representation that she anticipates filing that brief by 11/12/2004. After that date, no further extension will be granted.
|Oct 21 2004||Counsel's status report received (confidential)|
from atty Cross.
|Nov 8 2004||Request for extension of time filed|
to file respondent's brief. (17th request)
|Nov 16 2004||Extension of time granted|
to 12/6/2004 to file respondent's brief. Extension is granted based upon Deputy Attorney General Alison Aleman's representation that she anticipates filing that brief by 12/6/2004. After that date, no further extension will be granted.
|Dec 1 2004||Request for extension of time filed|
to file respondent's brief. (18th request)
|Dec 3 2004||Extension of time granted|
to 12/20/2004 to file respondent's brief. Extension is granted based upon Deputy Attorney General Alison Elle Aleman's representation that she anticipates filing that brief by 12/20/2004. After that date, no further extension will be granted.
|Dec 13 2004||Counsel's status report received (confidential)|
(supplemental) from atty Cross.
|Dec 15 2004||Request for extension of time filed|
to file respondent's brief. (19th request)
|Dec 20 2004||Extension of time denied|
to file respondent's brief.
|Dec 23 2004||Application for relief from default filed|
and request for extension of time to file respondent's brief.
|Dec 27 2004||Counsel's status report received (confidential)|
from atty Cross.
|Jan 3 2005||Order filed|
Respondent's request for relief from default and for extension of time to file respondent's brief is denied.
|Jan 12 2005||Application for relief from default filed|
by respondent and for leave to file respondent's brief. (49,839 word brief submitted under separate cover)
|Jan 13 2005||Order filed|
respondent's request for relief from default and for leave to file respondent's brief is granted.
|Jan 13 2005||Respondent's brief filed|
(49,839 words; 174 pp.)
|Jan 28 2005||Request for extension of time filed|
to file appellant's reply brief. (1st request)
|Feb 1 2005||Extension of time granted|
to 4/4/2005 to file appellant's reply brief.
|Mar 23 2005||Change of contact information filed for:|
habeas corpus counsel, Michael Cross.
|Mar 30 2005||Request for extension of time filed|
to file appellant's reply brief. (2nd request)
|Apr 7 2005||Extension of time granted|
to 6/3/2005 to file appellatn's reply brief. Extension is granted based upon counsel David Joseph Macher's representation that he anticipates filing that brief by 6/3/2005. After that date, no further extension will be granted.
|May 9 2005||Counsel's status report received (confidential)|
from atty Cross.
|May 23 2005||Request for extension of time filed|
to file appellant's reply brief. (3rd request)
|May 25 2005||Extension of time granted|
to 7/5/2005 to file appelant's reply brief. After that date, no further extension will be granted. Extension is granted based upon counsel David Joseph Macher's representation that he anticipates filing that brief by 7/3/2005.
|Jun 8 2005||Compensation awarded counsel|
|Jun 17 2005||Appellant's reply brief filed|
(26,551 words; 110 pp.)
|Jun 29 2005||Compensation awarded counsel|
|Jul 18 2005||Counsel's status report received (confidential)|
from atty Cross.
|Sep 19 2005||Counsel's status report received (confidential)|
from atty Cross.
|Dec 12 2005||Counsel's status report received (confidential)|
from atty Cross.
|Jan 4 2006||Related habeas corpus petition filed (concurrent)|
|Mar 8 2006||Compensation awarded counsel|
|Mar 29 2006||Compensation awarded counsel|
|May 9 2006||Motion for access to sealed record filed|
|Jun 21 2006||Motion for access to sealed record granted|
Respondent's "Request for Sealed Records Pursuant to Penal Code Section 987.9, Subdivision (d)" is granted. The clerk is directed to provide respondent with copies of the following material from the record in People v. Wallace, S033360: Sealed Clerk's Transcript on Appeal, volume 3, pages 790 through 814; and Sealed Supplemental Clerk's Transcript volume 6, pages 269 through 312. Respondent is directed to use these documents only in these habeas corpus proceedings. (Pen. Code, section 987.9, subd. (d).) If respondent wishes to quote, cite, disclose, or describe these documents in any court papers, those papers must themselves be filed or lodged under seal, or respondent may move this court to unseal the documents. The clerk is directed to maintain these documents under seal.
|Aug 2 2006||Change of contact information filed for:|
applt counsel David Joseph Macher.
|Apr 23 2007||Habeas funds request filed (confidential)|
|Jun 20 2007||Order filed re habeas funds request (confidential)|
re: request filed on April 23, 2007.
|Jan 31 2008||Compensation awarded counsel|
|Feb 8 2008||Compensation awarded counsel|
|Feb 28 2008||Compensation awarded counsel|
|Mar 3 2008||Oral argument letter sent|
advising counsel that the court could schedule this case for argument as early as the May 2008 calendars, to be held the weeks of May 5 and May 26, 2008, 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.
|Apr 2 2008||Received:|
letter from Deputy Attorney General Aleman, dated April 1, 2008, regarding the scheduling of oral argument.
|Apr 30 2008||Case ordered on calendar|
to be argued on Tuesday, May 27, 2008, at 1:30 p.m., in San Francisco
|May 7 2008||Received:|
appearance sheet from Attorney David Joseph Macher, indicating 30 minutes for oral argument for appellant.
|May 8 2008||Received:|
appearance sheet from Alison E. Aleman, Deputy Attorney General, indicating 30 minutes for oral argument for respondent.
|May 15 2008||Filed:|
appellant's focus issues letter, dated May 13, 2008.
|May 22 2008||Received:|
appellant's additional authorities letter, dated May 20, 2008.
|May 23 2008||Received:|
respondent's focus issue letter, dated May 23, 2008.
|May 27 2008||Cause argued and submitted|
|Jun 4 2008||Compensation awarded counsel|
|Jun 5 2008||Compensation awarded counsel|
|Jun 25 2008||Compensation awarded counsel|
|Aug 13 2008||Notice of forthcoming opinion posted|
|Aug 14 2008||Opinion filed: Judgment affirmed in full|
opinion by Kennard, J. ----- joined by, George, C.J., Baxter, Werdegar, Chin, Moreno and Corrigan, JJ.
|Aug 28 2008||Rehearing petition filed|
by appellant. (2,657 words; 13 pp.)
|Aug 29 2008||Time extended to consider modification or rehearing|
The time for granting or denying rehearing in the above-entitled case is hereby extended to and including November 12, 2008, or the date upon which rehearing is either granted or denied, whichever occurs first.
|Oct 22 2008||Rehearing denied|
The opinion is modified on the court's own motion. The petition for rehearing is denied. Werdegar, J., was absent and did not participate.
|Oct 22 2008||Opinion modified - no change in judgment|
|Oct 22 2008||Remittitur issued (AA)|
|Oct 29 2008||Received:|
acknowledgment of receipt of remittitur.
|Jan 20 2009||Received:|
from appellant, copy of motion for leave to proceed in forma pauperis on petition for writ of certiorari. (31 pp.)
|Feb 2 2009||Received:|
Letter from U.S.S.C., dated January 22, 2009, adivising the petition for writ of certiorari was filed on January 16, 2009, no. 08-8280.
|Apr 22 2009||Counsel fee request received|
|Apr 30 2009||Compensation awarded counsel|
|May 4 2009||Certiorari denied by U.S. Supreme Court|
|May 14 2009||Compensation awarded counsel|
|Oct 21 2002||Appellant's opening brief filed|
|Jan 13 2005||Respondent's brief filed|
|Jun 17 2005||Appellant's reply brief filed|