Supreme Court of California Justia
Citation 44 Cal.4th 1032 original opinion 45 Cal. 4th 76b modification
People v. Wallace



Filed 8/14/08



IN THE SUPREME COURT OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

S033360

v.

KEONE WALLACE,

Fresno

County

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


1

All further statutory references are to the Penal Code unless otherwise

indicated.

1




death.2 This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment in

its entirety.

I. FACTS

A. Guilt Phase

1. Prosecution’s

case

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

cane.

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

Hamilton’s house.

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


2

Imposition of determinate terms for the remaining convictions was stayed

under section 654.

2



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

officers.

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

Medical Center.

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

brain.

3



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

sperm.

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

4



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

5



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

was attacked.

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

her.

2. Defense

case

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

6



brandy. When defendant left Johnson’s home around 4:00 or 5:00 p.m., he was

drunk.

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.

7



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

8



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.

3. Prosecution

rebuttal

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.

4. Defense

surrebuttal

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.

B. Penalty

Phase

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.

9



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

10



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.

11



3. Prosecution

rebuttal

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.

4. Defense

surrebuttal

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

12



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


3

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.”
4

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)

13



“[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-
439.)

14



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

his restraint.

15



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

16



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

17



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

18



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

19



hearing, defines “immediate family” as the “victim’s spouse, parent, grandparent,

brother, sister, and children or grandchildren who are related by blood, marriage,

or adoption.”

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


5

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.”

20



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

otherwise.

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.

21



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

p. 539.)

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].)

22



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

bailiff.”

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

23



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

claims below.

1. Evidence

of

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,

24



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.)

25



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.

26



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.

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

27



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

the error].)

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,

p. 151.)

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

28



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

arrest.

29



Defendant

now

contends

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,

559.)

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.

30



4. Admission of expert testimony of criminalist Delia Heredia

Defendant

contends

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

crime scenes.

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

31



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

testimony.

32



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

impairment.

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

analyst.

During defense counsel’s recross-examination of Lykissa, this exchange

took place:

“[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?

33



“[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

records?

“[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?

34



“[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

.22.

“[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

at 11:25?

“[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

crime.

“[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.

35



“[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

36



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:

37



“[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

38



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

Lykissa

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

39



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,

40



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.

We disagree.

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

41



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

42



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

defendant.

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

assessment.

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

43



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,

44



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

45



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


6

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
determination.”
7

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.

46



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

flight.

2. Alleged misreading of instructions

Defendant

contends

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

contentions below.

Defendant argues that in instructing the jury with CALJIC No. 14.50 (1990

rev.) [Burglary — Defined], modified to reflect the specific definition of

47



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

degree [burglary].”

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

48



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

49



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

entitled.”

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

deliberations].)

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.

G.

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

50



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.)

51



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.

52



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

examination.

We conclude that substantial evidence supports not only defendant’s

convictions for attempted rape and attempted robbery, but also the jury’s findings

53



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

54



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

officers.

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

55



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,

1013-1014.)

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

56



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

Defendant

claims

this

trial court ruling was an abuse of discretion. We

disagree.

In

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


8

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 . . . .”

57



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

(b).

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

58



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.

59



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

constitutional rights.

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


9

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
remedy.

60



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

reports.

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

61



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

62



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.”

Relying

on

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

63



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.

64



In

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[10] and the enactment of the exclusivity guidelines in section

1054, subdivision (e)[11],” 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


10

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.)
11

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.”

65



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

During

Psychiatrist

Terrell’s

testimony,

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

66



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,

67



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

Amendment rights.

1. Mercy

instruction

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.”

Defendant

contends

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

68



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.)

69



2. Instruction

that

penalty

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

70



pp. 698-699.) We reaffirm those decisions here, and decline to reconsider them

finding no persuasive reason to do so.

E. Alleged Prosecutorial Misconduct

Defendant

contends

the

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

71



(1991) 54 Cal.3d 932, 990; accord, People v. Gonzalez (2006) 38 Cal.4th 932,

960-961.)

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

been “legitimate.”

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

72



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

defendant appears.

We also discern no prejudicial misconduct in the prosecutor’s asking

rebuttal witness Clinical Psychologist Michael Thackrey for his “opinion” about

73



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

74



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

inference.

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

75



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

the prosecutor.

76



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

77



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

78



these circumstances, the trial court fulfilled its duty under section 190.4,

subdivision (e).

B. Constitutionality

of

California’s Death Penalty Law and

Instructions

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.)

79



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

80



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

441, 478-489.)

“ ‘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

81



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.

E. Cumulative

Error

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.

VI. DISPOSITION

For the foregoing reasons, we affirm the judgment in its entirety.

KENNARD,

J.

WE CONCUR:

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



82



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

Name of Opinion People v. Wallace
__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No.
S033360
Date Filed: August 14, 2008
__________________________________________________________________________________

Court:
Superior
County: Fresno
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
(951) 677-7431

Alison Elle Alemán
Deputy Attorney General
1300 I Street
Sacramento, CA 94244-2550
(916) 324-5164


Automatic appeal from a judgment of death.

Opinion Information
Date:Citation:Docket Number:Category:Status:Cross Referenced Cases:
Thu, 08/14/200844 Cal.4th 1032 original opinion 45 Cal. 4th 76b modificationS033360Automatic Appealclosed; remittitur issued

WALLACE (KEONE) ON H.C. (S140077)


Parties
1The People (Respondent)
Represented by Attorney General - Sacramento Office
Alison Aleman, Deputy Attorney General
P.O. Box 944255
Sacramento, CA

2Wallace, Keone (Appellant)
San Quentin State Prison
Represented by Michael Cross
Attorney at Law
1612 W. Mineral King Avenue, Suite A
Visalia, CA

3Wallace, Keone (Appellant)
San Quentin State Prison
Represented by David Joseph Macher
Attorney at Law
40485 Murrieta Hot Springs Road, PMB 298
Murrieta, CA


Disposition
Aug 14 2008Opinion: Affirmed

Dockets
May 27 1993Judgment of death
 
Jun 15 1993Filed certified copy of Judgment of Death Rendered
  5-27-93.
Jun 15 1993Application for Extension of Time filed
  By Court Reporter Renee Torres to Complete R.T.
Jun 18 1993Extension of Time application Granted
  To Court Reporter To 7-16-93 To Complete R.T.
Mar 6 1998Counsel 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 1998Application for Extension of Time filed
  By Applt to request correction of the Record.
Apr 6 1998Extension of Time application Granted
  To Applt To 6-8-98 To request Corr. of Record.
Jun 3 1998Application for Extension of Time filed
  By Applt to request correction of the Record.
Jun 8 1998Extension of Time application Granted
  To 8-7-98 To request Record correctioon
Jun 10 1998Compensation awarded counsel
 
Aug 4 1998Application for Extension of Time filed
  By Applt to request correction of the Record.
Aug 7 1998Extension of Time application Granted
  To 10-6-98 To request Record correction
Oct 5 1998Application for Extension of Time filed
  By Applt to request correction of the Record.
Oct 7 1998Filed:
  Suppl Proof of Service of request for Eot.
Oct 13 1998Extension of Time application Granted
  To 12-07-98 To request Record correction
Nov 24 1998Compensation awarded counsel
 
Dec 1 1998Counsel 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 1998Application for Extension of Time filed
  By Applt to request correction of the Record.
Dec 11 1998Extension of Time application Granted
  To 2-5-99 To request Record correction
Dec 14 1998Compensation awarded counsel
 
Feb 8 1999Application for Extension of Time filed
  By Applt to request correction of the Record.
Feb 16 1999Filed:
  Suppl Decl of David Macher in support of Applic. for Eot.
Feb 22 1999Extension of Time application Granted
  To 4-6-99 To request Record correction
Apr 6 1999Application for Extension of Time filed
  By Applt to request Record correction
Apr 12 1999Extension of Time application Denied
  The request by Appellant for Extension of time to request correction of The Record Is denied
Apr 16 1999Order 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 1999Application for Extension of Time filed
  By Applt to request correction of the Record.
Jun 1 1999Extension of Time application Granted
  To 8-6-99 To request Record correction no further Extensions of time will be Granted.
Jun 16 1999Compensation awarded counsel
 
Jun 30 1999Compensation awarded counsel
 
Jun 30 1999Received copy of appellant's record correction motion
  motion to correct, augment and settle the record on appeal. (81 pp.)
Jul 7 1999Compensation awarded counsel
 
Sep 21 1999Compensation awarded counsel
  Atty Cross
Oct 20 1999Compensation awarded counsel
  Atty Cross
Jan 3 2000Compensation awarded counsel
  Atty Cross
Feb 16 2000Compensation awarded counsel
  Atty Cross
Mar 22 2000Compensation awarded counsel
  Atty Cross
Apr 20 2000Compensation awarded counsel
  Atty Cross
Jul 19 2000Counsel's status report received (confidential)
  from atty David Macher.
Aug 4 2000Counsel's status report received (confidential)
  from atty Michael Cross.
Sep 18 2000Counsel's status report received (confidential)
  from atty Macher.
Oct 10 2000Counsel's status report received (confidential)
  atty Cross.
Oct 18 2000Compensation awarded counsel
  Atty Cross
Nov 20 2000Counsel's status report received (confidential)
  from atty Macher.
Dec 6 2000Counsel's status report received (confidential)
  from atty Cross.
Dec 8 2000Compensation awarded counsel
  Atty Cross
Jan 16 2001Counsel's status report received (confidential)
  from atty Macher.
Jan 17 2001Compensation awarded counsel
  Atty Cross
Feb 5 2001Counsel's status report received (confidential)
  from atty Cross.
Feb 28 2001Compensation awarded counsel
  Atty Cross
Mar 14 2001Counsel's status report received (confidential)
  from atty Macher.
Apr 19 2001Compensation awarded counsel
  Atty Cross
May 18 2001Counsel's status report received (confidential)
  from atty Cross.
May 21 2001Counsel's status report received (confidential)
  from atty Macher.
Jul 11 2001Counsel's status report received (confidential)
  from atty Cross.
Jul 18 2001Counsel's status report received (confidential)
  from atty Macher.
Jul 19 2001Record 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 2001Appellant's Opening Brief Letter sent, due: 8/29/2001.
 
Jul 30 2001Compensation awarded counsel
  Atty Macher
Aug 15 2001Compensation awarded counsel
  Atty Cross
Aug 27 2001Application for Extension of Time filed
  To file AOB. (1st request)
Aug 28 2001Extension of Time application Granted
  To 10/29/2001 to file AOB.
Sep 13 2001Counsel's status report received (confidential)
  from atty Cross.
Sep 24 2001Counsel's status report received (confidential)
  from atty Macher.
Oct 24 2001Compensation awarded counsel
  Atty Cross
Oct 26 2001Application for Extension of Time filed
  To file AOB. (2nd request)
Nov 1 2001Extension of Time application Granted
  To 12/28/2001 to file AOB.
Nov 13 2001Counsel's status report received (confidential)
  from atty Cross.
Nov 29 2001Counsel's status report received (confidential)
  from atty Macher.
Dec 27 2001Extension of time granted
  To 2/26/2002 to file AOB.
Dec 27 2001Request for extension of time filed
  To file AOB. (3rd request)
Jan 23 2002Counsel's status report received (confidential)
  from atty Cross.
Feb 22 2002Request for extension of time filed
  To file AOB. (4th request)
Feb 22 2002Counsel's status report received (confidential)
  from atty Macher.
Feb 25 2002Extension of time granted
  To 4/2/2002 to file AOB.
Mar 6 2002Order 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 2002Counsel's status report received (confidential)
  from atty Cross.
Mar 27 2002Counsel's status report received (confidential)
  from atty Cross.
Apr 24 2002Counsel's status report received (confidential)
  from atty Macher.
Apr 24 2002Request for extension of time filed
  To file AOB. (5th request)
Apr 30 2002Extension 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 2002Counsel's status report received (confidential)
  from atty Cross.
Jun 21 2002Request for extension of time filed
  to file AOB. (6th request)
Jun 21 2002Counsel's status report received (confidential)
  from atty Macher.
Jun 26 2002Compensation awarded counsel
  Atty Cross
Jul 16 2002Extension 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 2002Counsel's status report received (confidential)
  from atty Cross.
Aug 20 2002Request for extension of time filed
  to file AOB. (7th request)
Aug 20 2002Counsel's status report received (confidential)
  from atty Macher.
Aug 23 2002Extension 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 2002Counsel's status report received (confidential)
  from attorney Macher.
Oct 18 2002Application to file over-length brief filed
  (328 pp. opening brief submitted under seprate cover)
Oct 18 2002Counsel's status report received (confidential)
  from attorney Cross.
Oct 21 2002Order filed
  Appellant's appliation to file brief in excess of 280 pages is granted.
Oct 21 2002Appellant's opening brief filed
  (328 pp.)
Nov 4 2002Compensation awarded counsel
  Atty Macher
Nov 13 2002Compensation awarded counsel
  Atty Cross
Nov 18 2002Request for extension of time filed
  To file respondent's brief. (1st request)
Nov 19 2002Extension of time granted
  to 1-21-2003 to file respondent's brief.
Dec 18 2002Counsel's status report received (confidential)
  from atty Cross.
Jan 17 2003Request for extension of time filed
  to file respondent's brief. (2nd request)
Jan 22 2003Extension 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 2003Counsel's status report received (confidential)
  from atty Cross.
Mar 19 2003Request for extension of time filed
  to file respondent's brief. (3rd request)
Mar 24 2003Extension 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 2003Counsel's status report received (confidential)
  from atty Cross.
May 19 2003Request for extension of time filed
  to file respondent's brief. (4th request)
May 21 2003Compensation awarded counsel
  Atty Cross
May 21 2003Extension 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 2003Counsel's status report received (confidential)
  from atty Cross.
Jul 16 2003Request for extension of time filed
  to file respondent's brief. (5th request)
Jul 23 2003Extension 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 2003Counsel's status report received (confidential)
  from atty Cross.
Sep 19 2003Request for extension of time filed
  to file respondent's brief. (6th request)
Sep 25 2003Extension 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 2003Counsel's status report received (confidential)
  from attorney Cross.
Nov 19 2003Request for extension of time filed
  to file respondent's brief. (7th request)
Nov 26 2003Extension 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 2003Compensation awarded counsel
  Atty Cross
Dec 15 2003Counsel's status report received (confidential)
  from atty Cross.
Jan 14 2004Request for extension of time filed
  to file respondent's brief. (8th request)
Jan 20 2004Extension 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 2004Request for extension of time filed
  to file respondent's brief. (9th request)
Mar 19 2004Counsel's status report received (confidential)
  from atty Cross.
Mar 19 2004Extension 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 2004Request for extension of time filed
  to file respondent's brief. (10th request)
Apr 27 2004Extension 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 2004Request for extension of time filed
  to file respondent's brief. (11th request)
May 21 2004Extension 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 2004Compensation awarded counsel
  Atty Cross
Jun 14 2004Request for extension of time filed
  to file respondent's brief. (12th request)
Jun 21 2004Counsel's status report received (confidential)
  from atty Cross.
Jun 21 2004Extension 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 2004Request for extension of time filed
  to file respondent's brief. (13th request)
Jul 21 2004Extension 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 2004Counsel's status report received (confidential)
  from atty Cross.
Aug 16 2004Request for extension of time filed
  to file respondent's brief. (14th request)
Aug 24 2004Extension 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 2004Request for extension of time filed
  to file respondent's brief. (15th request)
Sep 15 2004Extension 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 2004Request for extension of time filed
  to file respondent's brief. (16th request)
Oct 19 2004Extension 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 2004Counsel's status report received (confidential)
  from atty Cross.
Nov 8 2004Request for extension of time filed
  to file respondent's brief. (17th request)
Nov 16 2004Extension 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 2004Request for extension of time filed
  to file respondent's brief. (18th request)
Dec 3 2004Extension 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 2004Counsel's status report received (confidential)
  (supplemental) from atty Cross.
Dec 15 2004Request for extension of time filed
  to file respondent's brief. (19th request)
Dec 20 2004Extension of time denied
  to file respondent's brief.
Dec 23 2004Application for relief from default filed
  and request for extension of time to file respondent's brief.
Dec 27 2004Counsel's status report received (confidential)
  from atty Cross.
Jan 3 2005Order filed
  Respondent's request for relief from default and for extension of time to file respondent's brief is denied.
Jan 12 2005Application 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 2005Order filed
  respondent's request for relief from default and for leave to file respondent's brief is granted.
Jan 13 2005Respondent's brief filed
  (49,839 words; 174 pp.)
Jan 28 2005Request for extension of time filed
  to file appellant's reply brief. (1st request)
Feb 1 2005Extension of time granted
  to 4/4/2005 to file appellant's reply brief.
Mar 23 2005Change of contact information filed for:
  habeas corpus counsel, Michael Cross.
Mar 30 2005Request for extension of time filed
  to file appellant's reply brief. (2nd request)
Apr 7 2005Extension 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 2005Counsel's status report received (confidential)
  from atty Cross.
May 23 2005Request for extension of time filed
  to file appellant's reply brief. (3rd request)
May 25 2005Extension 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 2005Compensation awarded counsel
  Atty Macher
Jun 17 2005Appellant's reply brief filed
  (26,551 words; 110 pp.)
Jun 29 2005Compensation awarded counsel
  Atty Macher
Jul 18 2005Counsel's status report received (confidential)
  from atty Cross.
Sep 19 2005Counsel's status report received (confidential)
  from atty Cross.
Dec 12 2005Counsel's status report received (confidential)
  from atty Cross.
Jan 4 2006Related habeas corpus petition filed (concurrent)
  No. S140077
Mar 8 2006Compensation awarded counsel
  Atty Cross
Mar 29 2006Compensation awarded counsel
  Atty Cross
May 9 2006Motion for access to sealed record filed
 
Jun 21 2006Motion 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 2006Change of contact information filed for:
  applt counsel David Joseph Macher.
Apr 23 2007Habeas funds request filed (confidential)
 
Jun 20 2007Order filed re habeas funds request (confidential)
  re: request filed on April 23, 2007.
Jan 31 2008Compensation awarded counsel
  Atty Cross
Feb 8 2008Compensation awarded counsel
  Atty Cross
Feb 28 2008Compensation awarded counsel
  Atty Cross
Mar 3 2008Oral 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 2008Received:
  letter from Deputy Attorney General Aleman, dated April 1, 2008, regarding the scheduling of oral argument.
Apr 30 2008Case ordered on calendar
  to be argued on Tuesday, May 27, 2008, at 1:30 p.m., in San Francisco
May 7 2008Received:
  appearance sheet from Attorney David Joseph Macher, indicating 30 minutes for oral argument for appellant.
May 8 2008Received:
  appearance sheet from Alison E. Aleman, Deputy Attorney General, indicating 30 minutes for oral argument for respondent.
May 15 2008Filed:
  appellant's focus issues letter, dated May 13, 2008.
May 22 2008Received:
  appellant's additional authorities letter, dated May 20, 2008.
May 23 2008Received:
  respondent's focus issue letter, dated May 23, 2008.
May 27 2008Cause argued and submitted
 
Jun 4 2008Compensation awarded counsel
  Atty Macher
Jun 5 2008Compensation awarded counsel
  Atty Cross
Jun 25 2008Compensation awarded counsel
  Atty Cross
Aug 13 2008Notice of forthcoming opinion posted
 
Aug 14 2008Opinion filed: Judgment affirmed in full
  opinion by Kennard, J. ----- joined by, George, C.J., Baxter, Werdegar, Chin, Moreno and Corrigan, JJ.
Aug 28 2008Rehearing petition filed
  by appellant. (2,657 words; 13 pp.)
Aug 29 2008Time 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 2008Rehearing 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 2008Opinion modified - no change in judgment
 
Oct 22 2008Remittitur issued (AA)
 
Oct 29 2008Received:
  acknowledgment of receipt of remittitur.
Jan 20 2009Received:
  from appellant, copy of motion for leave to proceed in forma pauperis on petition for writ of certiorari. (31 pp.)
Feb 2 2009Received:
  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 2009Counsel fee request received
  Atty Cross
Apr 30 2009Compensation awarded counsel
  Atty Cross
May 4 2009Certiorari denied by U.S. Supreme Court
 
May 14 2009Compensation awarded counsel
  Atty Cross

Briefs
Oct 21 2002Appellant's opening brief filed
 
Jan 13 2005Respondent's brief filed
 
Jun 17 2005Appellant's reply brief filed
 
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